SZIBE v Minister for Immigration - [2006] FMCA 1397

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIBE & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 1397

MIGRATION – RRT decision – Indian Muslim fearing harm from members of different Muslim sect – involvement in fracas giving rise to criminal prosecution – relevance of Tribunal’s reasoning as to actions of prosecuting authorities – whether Tribunal addressed all elements of the applicant’s claim – no jurisdictional error found.

Migration Act 1958 (Cth), ss.474(1), 476, 476(1)

Horvath v Secretary of State for Home Department [2001] 1 AC 489
Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1

First Applicant:

SZIBE

Second Applicant:

SZIBF

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG59 of 2006

Judgment of:

Smith FM

Hearing date:

11 September 2006

Delivered at:

Sydney

Delivered on:

11 September 2006

REPRESENTATION

Counsel for the Applicants:

Mr C Jayawardena

Solicitors for the Applicants:

Chandra Jayawardena Solicitor

Counsel for the First Respondent:

Ms S McNaughton

Solicitors for the Respondents:

Blake Dawson Waldron

ORDERS

The application is dismissed.
The applicants must pay the first respondent’s costs in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG59 of 2006

SZIBE

First Applicant

SZIBF

Second Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application filed on 6 January 2006 under s.476 of the Migration Act 1958 (Cth) (“the Migration Act”), which seeks orders by way of judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 25 November 2005 and handed down on 15 December 2005. The Tribunal affirmed a decision of a delegate made on 9 August 2005 refusing to grant protection visas to the applicants. The applicants are a husband and wife, and the wife made no refugee claims separate to those made by her husband. As did the Tribunal, I shall refer to the applicant husband as “the applicant”.
Under s.476(1) the Court has “the same original jurisdiction in relation to migration decisions as the High Court has under paragraph 75(v) of the Constitution”, but its powers are confined by s.474(1) so that I do not have power to set aside the Tribunal’s decision and send the matter back unless I am satisfied that it was affected by jurisdictional error. I do not have power myself to decide whether the applicants qualify for protection visas.
The applicant arrived in Australia in March 2005 on a three months visitor’s visa, and his wife arrived shortly afterwards. On 23 May 2005 they lodged applications for protection visas. No agent was referred to as having been employed. The application form was filled out with little details. The applicant said:
40Why did you leave that country [India]?
I faced persecution for following reasons.
We are Muslim and living at Hindu settlement.
We were not feeling safe in Mumbai.
41What do you fear may happen to you if you go back to that country?
Hindu Muslim conflict.
Cannot move around safely in the streets.
Was assaulted by Hindus.
Could not work safely. Unsafe at workplace.
Afraid of hired people.
* I will submit more information in the form of declaration or letters which I will receive from India soon.
42Who do you think may harm/mistreat you if you go back?
Hindus will never be Muslims friend.
Religion violence.
They think they are supreme.
They will inflict serious harm on [illegible] me and wife.
Therefore she joined me later.
43Why do you think this will happen to you if you go back?
Vilified – racial remarks and torture.
44Do you think the authorities of that country can and will protect you if you go back? If not, why not?
I doubt that police will help me and my wife.
No supporting information nor greater details were ever provided to the Department, and were only given to the Tribunal after it served a notice seeking additional information.
In a statement sent to the Tribunal on 10 October 2005, the applicant said that he was a graduate in psychology. He referred to two episodes where he encountered the Indian police. He said that, as a student, he was arrested in 1996 “with some youths of my locality for cracking fires after India lose against Sri Lanka in World Cup cricket semi‑final. I was beaten in the police station”. He said that he was released, but was required to report until he was acquitted of the charge against him “after 9 months”. He claimed that for a period subsequently “members of surrounding Hindu locality takes me as Anti‑National; or a supporter of (Pakistan) on religious ground though it is not a fact”.
His statement also referred to an incident on 26 June 1999, when he claimed he was arrested by police as “a result of sectarian conflict, I was getting threats from members of a particular school of thought. This member of the “DEOBANDI” school of thought are present all over India”. He also referred to earlier travel abroad where he was seeking refuge in other countries.
Further substance to the 1999 incident was provided in documents, which the applicant sent to the Tribunal the day before a hearing which he attended on 22 November 2005. These included numerous documents concerning a criminal case which was brought against the applicant and 21 other defendants in the Court of Sessions at Bombay. An oral judgment published in English gave the background to the case, and the reasons for the Judge ordering that all charges against all defendants should be dismissed in October 2004. It appears that the charges against the 22 accused included unlawful assembly, using force or violence in the prosecution of a common object of an unlawful assembly, being armed with deadly weapons, and murder or unlawful death.
The Tribunal subsequently identified two media reports which gave a short description of the incident in June 1999 which gave rise to the charges. There had been simmering sectarian dispute between two rival Sunni sects, the Deobandis and the Barelvis, in relation to the management of a public trust responsible for a mosque. The applicant and his relations were adherents of the latter sect. The dispute between the two groups concerned whether their mosque should be open to allow visitors from other towns to rest within its precincts. Although the dispute appeared to have been resolved with the mediation of the police, after afternoon prayers on the occasion in question “a violent disagreement around the decision ensued and during the scuffle, the Haji [an elderly person] was killed”.
The Judge’s reasons indicate that a person with a name similar to that of the applicant was accused of being one of the persons involved in the melee, and that some witnesses accused him of throwing a bucket causing injuries to persons other than the deceased. The Judge considered the evidence of these police witnesses, and found that he was not satisfied by their evidence. He said that it was unbelievable.
Among the documents presented to the Tribunal was a subsequent petition by complainants seeking an appellate review of the acquittals. The prosecuting authority and the persons acquitted are named as respondents to the petition. The most recent document, indicated that the High Court in Bombay had ordered a hearing into the petition without the respondents having been heard at that stage.
A transcript of the hearing before the Tribunal is in evidence before me, but I was not taken to any parts of it to show inaccuracy in the Tribunal’s material account of the hearing.
The applicant gave the Tribunal more information about the 1996 incident, which it is unnecessary for me to describe. The Tribunal ultimately made a finding that:
While the applicant said that, for a period, he suffered abuse in the neighbourhood because of the notoriety he attracted, it is clear that that notoriety eventually died down. The Tribunal finds that he has suffered no ongoing disadvantage sufficiently serious to be regarded as persecution because of what happened in March 1996 since the end of that year. The Tribunal finds that, were the applicant to return to India in the reasonably foreseeable future, he would not be at risk of persecution because of the March 1996 incident.
That finding is not the subject of challenge in the present proceedings before me.
The Tribunal spent more time at the hearing considering the June 1999 incident and the applicant’s subsequent trial. The applicant said that the accused persons had been on bail pending the 2004 trial, and that he was one of the people who had been held for 45 days after being arrested before being released. The Tribunal said:
The applicant agreed that he had been present at the mosque on the day when the incident which gave rise to the charges had taken place. However, he said that he had simply gone there for prayers as was his normal custom. He said that the dispute started after the 1 o’clock prayers had ended. People were running “here and there” and he ran outside. He said that a police inspector was outside the mosque and directed the applicant and others to go to the trust building, which was directly opposite. Later, he and the other accused were arrested there.
The applicant criticised the actions of the police:
… since they had not responded appropriately to complaints made by the (Barelvi) trustees of the mosque about provocative actions by the Deobandis, in the lead‑up to the incident which was the cause of his arrest. …
The applicant said that because his uncle was accused of involvement in the incident, the applicant was also accused and rounded up by association. …
The applicant said that the stress he faced over the charges had changed his life forever.
In relation to the applicant’s claim in his protection visa application to fear harm at the hands of the Hindus, the Tribunal said:
The Tribunal said that the applicant had produced no evidence to support his assertion that he was at risk from Hindus. The applicant acknowledged this and said that the issue was within the Muslim community, between Deobandis and Barelvis, but police had not tried to settle the dispute. He said that the 1996 incident had been over for a long time by the time of the 1999 incident.
At the end of the hearing:
The Tribunal asked the applicant if there were any other matters he wanted it to consider. He said that minorities such as Muslims faced discrimination in India, and several commissions of inquiry had reported on this. He said that Muslims faced discrimination at the hands of police and the justice system. The Tribunal pointed out that, in his case, the justice system had exonerated him. He said that was because he had spent a lot of money to pay for a lawyer. He said the fact was that the police had accepted false charges against him. Moreover, the application to re‑open the case in a higher court was accepted, and he was again facing charges. However, he was unable to explain clearly how he was aware of this. The documents he had submitted only showed that the court had received the petition to re‑open the case and intended to have a hearing about whether the petition should be granted.
The applicant said that even if he was again exonerated, the Deobandis would continue to appeal and, if ultimately they were unsuccessful, they would kill him on the basis of “a life for a life.” He said he did not feel safe and would not receive adequate protection from the government. The Tribunal commented that, according to his evidence, the Deobandis had not attacked him so far. He agreed that was so, but said they had made complaints about him. He said that, since the June 1999 incident, he had kept to his home and had not gone out much. He had stopped going to the mosque, and had started to pray at home. This was to avoid confrontation. He said that, if he was convicted of murder, he could face the death penalty, as provided for under the relevant section of the IPC.
In its statement of reasons, the Tribunal referred to independent evidence it found, being the media reports which I have referred to above, concerning the alleged murder at the mosque. One of these reports dated 27 June 1999 referred to “three trustees of the masjid have been taken into custody for interrogation”. The other report in a July 1999 publication referred to eight persons being arrested.
Under the heading “Findings and Reasons”, the Tribunal identified the claim which the applicant was still maintaining by the end of his hearing: “to fear persecution in India, from non Muslims because of his Muslim religion and from Deobandi Muslims because of his adherence to the Barelvi school of thought”.
The Tribunal considered the circumstances of the 1996 incident and made the conclusion which I have referred to above.
The Tribunal then made a finding in relation to the number of persons who had been arrested in the June 1999 incident, which I shall discuss below. It said:
The applicant has provided copies of what he said are court documents relating to charges arising from a fight at his local mosque on 26 June 1999, in which one man was killed and several were injured. The independent evidence cited above corroborates the applicant’s claim that such an incident took place, though it is not clear from those reports how many people were arrested on the day. One report says “three trustees” were taken into custody while the other says that eight, including the three trustees, were arrested. While this discrepancy indicates that one cannot be certain exactly how many were arrested, on the basis of the media reports, the Tribunal is satisfied that the number was much less than 22. The applicant said he was one of several people arrested as a result of false accusations made. According to the documents submitted by the applicant, he was the twelfth of twenty‑two people charged. Paragraphs 44 and 55 of the judge’s reasons suggests that the accusations about the applicant were made after a “long lapse of time” had passed since the first statements were made about the incident. This in turn suggest that the applicant was not among those initially charged on the day.
The Tribunal referred to the documents concerning the criminal case which had been tendered by the applicant, and noted that they were photocopies and that it could have been possible to have substituted the applicant’s name. However, it said that rather than make further inquiries as to the authenticity of all the documents, including the reference to the applicant, it “will proceed on the basis that the documents tendered are unaltered copies of genuine court documents relating to the incident”. On that basis the Tribunal made the following findings as to the incident:
·The applicant and other members of his extended family are associated with a registered public trust which controls the Jamil Masjid mosque in Mumbai;
·The applicant’s uncle, in particular, is one of the trustees of the mosque, who are members of the Barelvi sect or “school of thought” of Islam;
·There was a long‑standing dispute between the trustees and people from the Deobandi sect over the issue of whether visitors from other towns in India should be allowed to stay overnight within the precincts of the mosque and cook meals (as argued by the Deobandis) or not (as was the wish of the trustees);
·Prior to the incident, there had been an agreement reached, at a meeting at the police station, that visitors were not allowed to stay in the mosque, but the dispute arose again after the afternoon prayers and violence broke out;
·In the fighting, an elderly man was killed, and accusations were made that the applicant’s uncle, a trustee, was the one who killed that man;
·At least three people (all three being trustees with the same surname as the applicant), including the man the applicant claims is his uncle, were arrested on the day;
·The applicant was not among those arrested on the day or in the immediate aftermath of the event;
·Charges were subsequently laid against 22 people, including the applicant, though it is not clear to the Tribunal precisely when the charges were laid against each individual;
·The case came before a magistrate who referred the matter to the Bombay Sessions court;
·After a hearing, in which a number of witnesses gave evidence, the 22 accused people were acquitted of all charges on 25 October 2004, the judge concluding that there was insufficient evidence to justify any conviction;
·In early 2005, the key witness against the accused and others petitioned a higher court to quash the judgment and find the accused guilty as originally charged;
·The higher court decided to hear the petition at a hearing in late 2005;
·That there have been numerous incidents of violence in India arising from disputes between Barelvis and Deobandis.
Having found that the applicant was not among those arrested and detained, the Tribunal finds that he was not held for 45 days after the fracas on 29 June 1999 before being released.
The Tribunal is not satisfied that the case against the accused has in fact been re‑opened. The Tribunal makes no finding on whether or not the applicant was personally involved in the fighting at the mosque on 26 June 1999. However, the Tribunal does accept that he was in the mosque at the time and was later accused of involvement in the fighting. (emphasis added)
The above reasoning was the subject of the third ground of the amended application, which I shall refer to below.
The Tribunal then considered the actions of the police in bringing charges against the applicant and pursuing them in court. Its reasoning in this respect was the subject of the second ground of the amended application, and I shall extract the relevant passage when I deal with that ground. In short, the Tribunal found that the police had acted reasonably, and that the applicant had been “afforded the protection of the Indian judicial system”. It accepted that even if the case were re‑opened “he would be judged in accordance with the law”.
The Tribunal then addressed the applicant’s concerns about the members of the sect of Deobandis, in particular that they were responsible for false charges against him, and that if their legal efforts failed they might seek to kill him. It made findings about this in reasoning which is the subject of the first ground of the amended application, and I shall extract it below when I deal with that ground. In short, the Tribunal thought that the possibility of the “Deobandis to seek to harm him personally” to be “remote” and that, in any event, “the applicant would receive the protection of the local police and judicial system”. It made a finding that “his fear that the Deobandis wish to harm him is not well‑founded”.
The Tribunal also considered whether the applicant was at risk against a repeat occurrence of false accusations unrelated to the past incidents, and made a finding that the two situations which had involved the applicant in the past were “unlikely to be repeated”. It referred to the absence of further charges against the applicant, and said: “The failure of either group to make further such accusations leads the Tribunal to find that there is no real chance that the applicant will be subjected to a succession of false charges in the future”.
The applicant was originally unrepresented in this Court, but has recently instructed a solicitor, Mr Jayawardena, who has filed an amended application which was the subject of his submissions today. It contains three grounds. I shall deal with them in reverse order, since that better addresses the sequence of the Tribunal’s reasoning.

Ground 3 addresses the Tribunal’s findings in relation to the 1999 incident, including the dot points which I have extracted above. The ground contends:
3.That the Tribunal failed to act according to sec. 430(1)(d) of the Act because of the its finding despite the clear evidence to the contrary that was available on the face of the record namely:-
“The Tribunal is not satisfied that the case against the accused has in fact been re‑opened. The Tribunal makes no finding on whether or not the applicant was personally involved in the fighting at the Mosque on 26 June 1999. However the Tribunal does accept that he was in the Mosque at the time and later accused of involvement in the fighting” (COURT BOOK page 311, para 15).
The Applicant submits that the Tribunal’s obvious avoidance of the very evidence that was available to it as ‘on the face of the record’ amounted to a serious unfairness caused to the Applicant and therefore amounted to a jurisdictional error.
In Mr Jayawardena’s written submission this ground was further explained:
16.In Ground 3, the Applicant’s main issue is that there was evidence available on the ‘face of the record’ (transcript) and the very findings made by the Tribunal in its very own decision, which information was wittingly or unwittingly avoided by the Tribunal. That was why the Applicant submitted that this was a serious unfairness on behalf of the Applicant’s claims for refugee.
I had some difficulty identifying the argument which was sought to be put. In his oral submissions, Mr Jayawardena first criticised the Tribunal’s finding in its statement: “the Tribunal makes no finding on whether or not the applicant was personally involved in the fighting at the mosque on 26 June 1999”. As I understood his contention, it was that this sentence showed the Tribunal failing to address the applicant’s claim that his fear of persecution arose because he had been “involved” in that episode by way of the false accusations of the Deobandi witnesses. He submitted that it was the duty of the Tribunal to make a finding on that claim, and that it had failed to perform its review function by declining to make a finding on “whether or not the applicant was personally involved in the fighting”.
However, in my opinion, this submission clearly misunderstands the sentence which was attacked. I understand the Tribunal to say no more than that it did not find it necessary to make a finding on whether the applicant was personally involved in the sense of “engaged” in the fighting at the mosque in the manner that he was accused.

The Tribunal has, however, plainly in my opinion, understood that the applicant claimed that he had been subjected to the criminal charges by reason of being falsely accused to have been involved.
The second element in Mr Jayawardena’s argument was that the Tribunal’s finding that the applicant was not among the people immediately arrested and detained on the day of the incident was contrary to evidence before the Tribunal. He initially identified an error by the Tribunal in the reference to the “fracas on 29 June 1999”, but subsequently accepted that the Tribunal probably made a typing error since earlier it had plainly understood that the incident occurred on 26 June 1999.
Of more substance, were his references in the documents submitted by the applicant to passages, including in the reasons of the trial Judge, to all the 22 accused persons having been arrested. He submitted, in effect, that it was not open to the Tribunal to find to the contrary, and that this amounted to a failure to consider the actual claims made by the applicant.
However, the Tribunal did have before it media reports suggesting fewer arrests. The Tribunal referred to these reports in the passage I have extracted above. I do not consider that the evidence was so plainly all in one direction that the Tribunal’s finding was not open to it as a matter of law. In any event, if the Tribunal made an error of fact, it was, in my opinion, clearly an error within jurisdiction since it occurred when the Tribunal was actually addressing the applicant’s claims. Such an error would therefore fall within the Full Court’s reasoning in NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [68].
A further answer to this contention is that the error of fact, if it were made, did not materially affect the subsequent reasoning of the Tribunal. This did address the essential and significant element in the applicant’s claims, that is, that he had been falsely accused and subjected to trial on charges inter alia of murder. The Tribunal clearly did address those claims, and was satisfied as to the level of State protection which had been afforded the applicant. I do not think that the factual error which was argued was material to its essential reasoning.
Ground 2 of the amended application was:
2.That the Tribunal failed to assess the Applicant’s claims in a ‘constructive and articulate manner’ as required under sec. 415 of the Act, because of the following finding:-
“While the motivation of the accusers may have had a religious basis, the Tribunal finds that the police acted to charge the Applicant only because a serious crime had obviously been committed, and people claiming to be witnesses implicated the Applicant. In these circumstances, the Tribunal finds that the action of the police and other authorities did not amount to persecution towards the Applicant”. (COURT BOOK page 312, para 03)
The Applicant submits that although the Tribunal accepted that the persecution suffered by the Applicant had a religious basis and that the witnesses opposed to the Applicant (the Deobandi sect) was implicated in the crime, still misconstrued the real issue that the action taken by the police and the authorities was not persecution.
The Applicant submits that the Applicant’s complaint of persecution and harassment was not against those authorities, but against those ‘Deobandi’ group who had implicated the Applicant in that ‘grave crime’ punishable with death and the subsequent mental and physical suffering the Applicant underwent as a result of that motivation of that group. Hence the Applicant submits that the Tribunal’s inarticulate conclusion as to the real motivation was a misdirection and therefore amounted to a jurisdictional error.
This was explained further in Mr Jayawardena’s written submission:
15.In Ground 2, the basis issue is that the Tribunal failed to understand that the Applicant’s complaint of persecution and harassment was not against the Police or the authorities, but against those “Deobandi” group who had implicated the Applicant in those ‘grave crimes’ punishable with death and the subsequent Mental and physical persecution that he underwent as a result of that motivation By that Group.
The Tribunal’s reasoning which was criticised, addressed the actions of the police and Indian prosecution authorities:
In the light of these findings, the Tribunal does not consider it would have been unreasonable for police to bring charges against the applicant and bring those charges to court. He has made no claim that he was mistreated by police in relation to this incident, only that he was the subject of false charges, and that he was held in custody for a period (this latter claim having been rejected above). There is no evidence to suggest that police acted in a discriminatory manner towards the applicant either personally, because of his religion, or because of his family relationship to one of the trustees. The applicant has claimed that the police acted improperly, in that they did not act on complaints made by the trustees. However, the papers submitted by the applicant indicate that the police did act. They include a statement made by an inspector of police on 27 June 1999, in which he states that police had invited the disputing parties to meet to resolve the dispute between them and that, although the parties were “not willing to sit together” initially, they were prevailed upon to meet at the police station on the morning of 26 June 1999. The statement reports that an agreement was reached “unanimously and amicably” to, in effect, accede to the wishes of the trustees until a national political issue of “war on the border” was resolved. The report also indicated that the police were instructed to patrol the area near the mosque at the prayer time. No doubt it was not possible, for religious reasons, for police (presumably mainly if not exclusively Hindus) to be present within the precincts of the mosque, particularly at prayer time.
The judge’s statement of reasons (see particularly paragraph 25) also seems to support the view that police had tried to resolve the dispute peacefully. The Tribunal’s understanding of the evidence before the court is that had the agreement reached at the police station been adhered to, there would not have been the violent confrontation which resulted in a death. The Tribunal finds that, in the lead‑up to the events of 26 June 1999, police did not act with bias against the Trustees of the mosque or against people of the Barelvi Muslim sect generally, including the applicant himself.
While the motivation of his accusers may have had a religious basis, the Tribunal finds that the police acted to charge the applicant only because a serious crime had obviously been committed, and that people claiming to be witnesses implicated the applicant. In these circumstances, the Tribunal finds that the action of the police and other authorities did not amount to persecution towards the applicant.
Moreover, the evidence indicates that the applicant had his day in court and, when the judge found there was insufficient credible evidence to justify a conviction, he and the other accused were acquitted. In these circumstances, the Tribunal finds that the applicant was afforded the protection of the Indian judicial system.
The Tribunal accepts that it is possible that, as a result of legal action, the case might be re‑opened. However, the Tribunal finds that, should the applicant return to India and that situation eventuate, he would be judged in accordance with the law. The applicant has referred to the possibility that the applicant might face the death penalty for murder. The Tribunal considers that this is unlikely, since it is clear from the judge’s summary of the evidence, that the alleged role of the applicant in the fracas was minor, and that he was not accused of striking the man who died. Moreover, the evidence does not suggest that the courts would be biased against the applicant and would punish him more severely than anyone else in the same situation, for a Convention reason. (emphasis added)
Mr Jayawardena’s argument was, as I understood it, that the Tribunal in the emphasised passage irrelevantly addressed the motives of the police rather than the motives of the Deobandi for accusing the applicant. The Tribunal thereby revealed a misapprehension as to the refugee claims which it was required to address.
However, in my opinion, read in context, the Tribunal’s finding about the motives of the police in charging the applicant and subjecting him to criminal trial was plainly relevant to the Tribunal’s reasoning. It was relevant, if only to exclude the basis upon which criminal prosecution can itself amount to persecution covered by the Convention.

This includes situations where the prosecuting authorities are complicit in the Convention motive of the accusers, so that the State may appear to “encourage, condone or tolerate the harm” (compare Minister for Immigration & Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 (“S152”) at [23] and [19]).
The Tribunal’s finding as to the absence of a Convention motive in the actions of the State prosecuting authorities also led to the Tribunal’s further reasoning, as to whether the incident revealed an absence of State protection for harms inflicted by non‑State agents for Convention reasons. In this respect, the majority judgment in S152 at [21] said:
Having regard to both the immediate and the wider context, a majority of the House of Lords in Horvath took the view that, in a case of alleged persecution by non‑State agents, the willingness and ability of the State to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2). It may be relevant to whether the fear is well‑founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person such as the first respondent in this case is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home State. Lord Hope of Craighead quoted with approval a passage from the judgment of Hale LJ in the Court of Appeal in Horvath where she said, in relation to the sufficiency of State protection against the acts of non‑State agents:
“[I]f it is sufficient, the applicant’s fear of persecution by others will not be ‘well founded’; if it is insufficient, it may turn the acts of others into persecution for a Convention reason; in particular it may supply the discriminatory element in the persecution meted out by others; again if it is insufficient, it may be the reason why the applicant is unable, or if it amounts to persecution unwilling, to avail himself of the protection of his home State.”
It was therefore directly pertinent for the Tribunal to address the actions and motives of the Indian prosecution authorities, both to consider whether their actions revealed a Convention reason for the persecution, and also whether they revealed a willingness and ability of the State to discharge its obligation to provide appropriate criminal trial procedures.
I therefore do not consider Ground 2 has any basis.
Ground 1 of the amended application challenged the Tribunal’s subsequent reasoning, which did directly address the applicant’s fears of harm at the hands of Deobandis. The ground was:
1.That the Tribunal’s decision lacked the required satisfaction in terms of sec.91R of The Migration Act with regard to the ‘real chance’ test of future persecution when it made the following finding:-
“The Tribunal finds that, while the genesis of the fighting on 26 June 1999 was a religious dispute, the problems which the applicant faced, and might possibly face in the future have arisen because a man was killed in that fighting”. (COURT BOOK Page 313, para 02)
The Applicant submit that, despite the fact that the Tribunal accepted that the Applicant had faced past persecution due to a religious dispute and that he might face the same in the future, made a conflicting conclusion that the chance of such future persecution would be not due to the religious dispute but because a man was killed in that fighting.
The Applicant submits that the Tribunal’s above conclusion was in conflict and contrast to its own findings and therefore amounted to a jurisdictional error.
Mr Jayawardena’s written submission explained it further:
12.In Ground 1, the Applicant’s contention relates to the fact that, despite that the Applicant had suffered past problems or mistreatment or persecution due to a ‘religious reason’ and that he might face the same in the future, made a conflicting Conclusion which was unreasonable by the Applicant.
The Tribunal’s reasoning on the applicant’s concerns about the future actions of the Deobandis was:
The applicant has not suffered any other harm at the hand of the Deobandis. Had they wished to harm him, they have had ample opportunity to do so, both before and after the incident. It is clear, from all the evidence (paragraphs 3‑7 of the judge’s reasons) that the dispute over access to the mosque had been simmering for a year before the incident, and there had been another disputes [sic] in February – March 1998. However, apart from the one incident, the disputes relating to the Jamil Masjid mosque were apparently being handled without violence. Indeed, the applicant’s claim that, if the Deobandis’ legal efforts against him ultimately fail they will try to exact “a life for a life” would suggest that any wish to harm the applicant arises not from his Barelvi beliefs as such, but because of a wish to extract revenge for a death.
The Tribunal finds that, while the genesis of the fighting on 26 June 1999 was a religious dispute, the problems which the applicant faced, and might possibly face in the future, have arisen because a man was killed in that fighting.
The Tribunal has noted the applicant’s reference to evidence that the judicial system in India is biased against Muslims but the evidence of what happened in his own case suggests that, the police responded appropriately to an incident of violence, acted in accordance with the allegations made, and that the courts dealt with the accusations in a manner which was clearly not biased against or prejudicial to the applicant and his co‑accused. The Tribunal finds that the local police and judicial system are reasonably effective and impartial. The applicant has been accused of a crime. While the Tribunal cannot determine his guilt or otherwise, it is satisfied that, given the accusations made, it was (and potentially would still be) appropriate for the matter to be determined according to Indian law. The evidence also suggests that, were the Deobandis to seek to harm him personally, a possibility that the Tribunal considers remote given his relatively minor role (as alleged against him) in the incident of 26 June 1999, the applicant would receive the protection of the local police and judicial system.
The applicant has claimed that, in order to avoid the adverse attention of the Deobandis, he has avoided attending the mosque as was his prior custom. As noted above, had the Deobandis wished to harm him because of his beliefs, they have had ample opportunity to do so. He told the Tribunal he was well‑known in the area, so they would not have had any difficulty in tracking him down. Indeed, his name and address were published in the court’s verdict. Even if the Tribunal were to accept that the applicant had avoided the mosque, and were to make a finding that such changed conduct constituted a form of persecution (which it does not, on either account) the Tribunal’s finding is that his fear that the Deobandis wish to harm him is not well‑founded.
As I understood Mr Jayawardena’s argument, it was that the Tribunal’s finding that “the problems which the applicant faced, and might possibly face in the future have arisen because a man was killed in that fighting” was an assessment of the applicant’s claims which was inadequate. It failed to address the fact that the applicant claimed that the underlying reason for the Deobandis’ motives to extract revenge against the applicant was his religious opinions and affiliation with the other Muslim sect. The Tribunal’s statement, therefore, showed it failing to address the Convention basis for the applicant’s concerns by mis‑characterising the persecutors’ motives.
However, in my opinion, this does not represent a proper reading of the Tribunal’s reasoning in the whole of the passage I have extracted.

The Tribunal was plainly aware in that passage that the applicant claimed that all the harms he suffered, including the criminal prosecution and his feared harms from the Deobandis, arose from his affiliation with his Muslim sect.
It is unclear whether the passage that has been attacked was presented by the Tribunal as being a relevant part of its reasoning to its conclusion. Rather, it might appear to be a side observation which could have been, but was not, pursued into a finding that there would be an absence of Convention nexus in relation to the applicant’s fear of revenge attacks. However, the Tribunal did not, in my opinion, go down that pathway, and it is not necessary for me to form an opinion on whether it would have made jurisdictional error if it had so characterised this element of the applicant’s claims.

This is because the paragraphs after the challenged paragraph show, in my opinion, the Tribunal’s essential reasoning. This assumed a Convention nexus for the feared harm from the Deobandis, but concluded that the likelihood of such harm was “remote” and also that “the applicant would receive protection of the local police and judicial system”. In my opinion, those two alternative findings provide the explanation for the Tribunal’s conclusion that “his fear that the Deobandis wish to harm him is not well‑founded”.
In my opinion, those findings properly addressed the claims made by the applicant, and I do not consider that they are tainted by any jurisdictional error.
For the above reasons I am not persuaded that any of the three grounds argued on behalf of the applicant are made out. The Tribunal’s decision is therefore a privative clause decision for which relief is precluded by s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding fifty‑one (51) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 27 September 2006