SZOHH v Minister for Immigration
[2010] FMCA 501
•26 August 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZOHH v MINISTER FOR IMMIGRATION & ANOR | [2010] FMCA 501 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming political persecution in India – applicant’s claims accepted – Tribunal finding that the applicant could relocate to avoid the harm experienced in his home state of Kerala – Tribunal finding that if the applicant relocated and continued his political activities he might face a real chance of further persecution but that the applicant could seek effective state protection – consideration of the question of why the past failure of state protection in Kerala would not be repeated outside Kerala – no explanation by the Tribunal of its finding on the issue of the availability of effective state protection – finding not supported by the country information before the Tribunal – finding inconsistent with findings that the applicant had a well-founded fear of persecution in Kerala and faced a real risk of persecution in the future even if he relocated - jurisdictional error established. |
| Migration Act 1958 (Cth), s.91 |
| Lafu v Minister for Immigration [2009] FCAFC 140 SZATV v Minister for Immigration [2007] HCA 40 |
| Applicant: | SZOHH |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 693 of 2010 |
| Judgment of: | Driver FM |
| Hearing date: | 13 July 2010 |
| Date of last submission: | 28 July 2010 |
| Delivered at: | Sydney |
| Delivered on: | 26 August 2010 |
REPRESENTATION
The Applicant appeared in person
| Counsel for the Respondents: | Mr H P T Bevan |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
A writ of certiorari shall issue quashing the Refugee Review Tribunal decision made on 10 March 2010.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 693 of 2010
| SZOHH |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
(revised from transcript)
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”) made on 10 March 2010. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and had made claims of political persecution. The following statement of background facts is derived from the Minister’s written submissions filed on 7 July 2010.
The applicant arrived in Australia on 6 April 2009 (court book (CB) 37) and applied for a protection visa on 8 April 2009 (CB 1-45).
The applicant’s claims were set out in a written statement submitted on 21 April 2009 (CB 48-51). (The statement is more conveniently seen in full in the delegate’s decision (CB 62-63); see also the relevant passages set out by the Tribunal (CB 150 [20]).)
Broadly, the applicant claimed to fear persecution in India for reason of his political opinion. He claimed to have been an active participant in politics while at university, taking on a number of roles in local youth parties associated with the communist cause. The applicant claimed that friends of his had been murdered, and that he had been attacked by political opponents, particularly members of the Rashitriya Swayamsevak Sangh (RSS).
On 1 July 2009, the Minister’s delegate refused to grant the applicant a protection visa (CB 62-75).
On 24 July 2009, the applicant applied to the Tribunal for review of the delegate’s decision (CB 76-79).
On 12 November 2009, the applicant attended a hearing before the Tribunal (CB 111-113; CB 161 [23]-[48]).
On 10 March 2010, the Tribunal affirmed the decision not to grant the applicant a protection visa (CB 147-169).
Tribunal’s findings and reasons
The Tribunal accepted many of the applicant’s claims.
The Tribunal accepted that the applicant is a softball player and coach and that his softball activities required him to travel to different states in India (CB 165 [52]).
The Tribunal also accepted that:
a)the applicant was a member of various political parties and engaged in political activities (CB 165 [55]);
b)one of the applicant’s friends had been murdered by members of the RSS, as a result of which the applicant could not continue his studies (CB 165 [56]);
c)another of the applicant’s friends had been murdered because he was a member of the Communist Party of India (CB 165 [57]);
d)there had been four attempts by his political opponents to harm the applicant and that, on the fourth occasion, he was assaulted and hospitalised (CB 166 [58]-[59]); and
e)the applicant had relocated a number of times to escape his enemies (CB 166 [61]).
The Tribunal did not accept the applicant’s claims that the police are influenced by the RSS, finding instead that the applicant had sufficient confidence in the police to seek their assistance on two occasions on which he had been attacked (CB 166 [60]).
The Tribunal accepted that the applicant has a well-founded fear of persecution for a Convention reason – that being his political opinion (CB 166 [62]). But the Tribunal also found that the persecution to which the Applicant has been subjected is “located to the places where he lived worked and played softball”. The Tribunal was satisfied that the harm he may fear in the future “is localised to the region where he lived and worked” (CB 166 [62]).
However, the Tribunal also found that it was reasonable for the applicant to relocate within India (CB 166 [62]). The Tribunal did not accept that the applicant’s softball activities will be reported by the media across India thereby alerting his political opponents as to his whereabouts (CB 166 [63]).
The Tribunal found that the applicant’s circumstances make it safe and reasonable for him to relocate to another place in India. The circumstances to which the Tribunal referred include the applicant’s:
· background as a softball player and coach;
· roofing work in Australia;
· previous demonstrated ability to relocate within India to Bombay and to Eranakalam;
· previous demonstrated ability to travel to and relocate in Australia; and
· ability to raise funds for his travel and relocation costs in Australia (CB 166 [64]).
The Tribunal noted that Indian citizens enjoy freedom of movement in India’s 28 states and seven territories (excluding Kashmir and Jammu) (CB 166 [64] and CB 167 [66]) and found that the applicant’s personal circumstances are such that he is able to relocate to a safe place in India where his language (Malayalam) is spoken and where his religion (Christianity) is practised. The Tribunal accepted that if the applicant continued his political activities after relocating he could face a real chance of persecution once again but found that state protection would be available to him (CB 167 [66]; see also CB 167 [67])).
The Tribunal also found that the applicant had demonstrated the personal characteristics required to live away from his immediate family, relatives and friends when he relocated within India, to the United Arab Emirates and to Australia (CB 167 [68]).
The Tribunal did not accept the applicant’s claim that he will be killed if he returned to India and found that the applicant would be lost to his opponents upon relocation (CB 167 [69]).
On the basis of its finding as to relocation, the Tribunal was not satisfied that the applicant was a person to whom Australia owed protection obligations and, accordingly, affirmed the decision not to grant the applicant a protection visa (CB 167 [70]-[71]).
The application
These proceedings began with a show cause application filed on 30 March 2010. The applicant now relies upon an amended application filed on 17 June 2010. That application contains one ground:
1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per s.91(2)(a) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do so), if he asked to relocate in India, the Tribunal failure to satisfy this statutory obligation was a serious jurisdictional [error] caused by the Tribunal. SZATV v Minister for Immigration and Citizenship [2007] HCA [40].
The applicant also relies upon paragraph 2 of an affidavit filed on 30 March 2010 which I accepted as a submission. That states:
The Tribunal has failed to investigate my claim, specifically the ground of persecution in India. Therefore the Tribunal decision was effected [sic] by actual bias constituting judicial [sic] error.
The evidence and submissions
The applicant did not file any written submissions. He made short oral submissions which focussed upon the Tribunal’s relocation finding. The applicant believes that the problems he experienced in his home state of Kerala will happen again if he attempts to relocate within India and continue his political and sporting activities. He believes that while state protection is theoretically available in India, as a practical reality, that protection is not effective (and has in his case proven not to be effective).
The Minister submitted that the Tribunal made no error. In particular, the Minister submits that the question, in assessing relocation, is whether it is reasonable, in the sense of practicable, for the applicant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. What is “reasonable”, in the sense of “practicable”, depends upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality: SZATV v Minister for Immigration (2007) 233 CLR 18 at 26 [23]-[24] per Gummow, Hayne and Crennan JJ.
The Minister submits:
The [Tribunal’s] finding as to relocation is free from error. The [Tribunal] considered the objective evidence with respect to freedom of movement within India and the language and demographic make-up of a particular state. Importantly, the [Tribunal] also gave detailed consideration to the Applicant’s personal circumstances and attributes which, the [Tribunal] found, demonstrated that it was safe and reasonable for him to relocate within another part of India. The [Tribunal’s] analysis and its finding in this regard are, it is submitted, entirely in conformity with the test propounded by the High Court in SZATV.
I raised with counsel for the Minister in argument whether the real issue is not whether the Tribunal erred in considering the practicability of relocation but, rather, whether the Tribunal gave any meaningful consideration to the question of whether effective state protection was available anywhere in India, on the basis that the applicant would continue his political activities and the harm which he experienced might resurface. I put to counsel that where, as here, a real chance of persecution remained, the issue of the reasonableness of relocation only arose in circumstances where effective state protection was available somewhere in the applicant’s country of origin. I invited further submissions on that issue.
The Minister filed further submissions on 28 July 2010 to the following effect:
a)there is an issue whether relocation requires that the Tribunal considered two questions: first, whether effective state protection would be available in a part of the applicant’s country of origin; and secondly, if the answer to that is in the affirmative, whether it would be reasonable for the applicant to relocate to that place;
b)the relevant enquiry is not a two step process but, rather, the relevant enquiry for the Tribunal is whether, in all the circumstances, it would be reasonable to expect the applicant to seek refuge in another part of the same country;
c)it may be readily accepted that the availability or otherwise of state protection in other regions of the country of origin will be a relevant consideration in the Tribunal’s task of assessing relocation – if for example, a tribunal would find that there is an absence of state protection across several parts of a refugee applicant’s country of origin, then the Tribunal would, in all likelihood, find that it would not be reasonable to expect an applicant to seek refuge in those several parts;
d)in the present case, the Tribunal’s findings (CB 166 [62]) emphasised the localised nature of the applicant’s persecution;
e)in reaching its finding, the Tribunal had specific regard to four instances in which the applicant had been attacked by his political opponents (CB 166 [58]-[59]);
f)the Tribunal’s acceptance (CB 166 [62]) of the applicant’s well-founded fear of persecution in his local area must be based upon the Tribunal’s (implicit) assessment of the failure of the local police authorities to prevent the occurrence of these attacks. This is because the Tribunal found that the applicant had sufficient confidence in the police to seek their assistance on two occasions (CB 166 [58] and [60]). The Tribunal explicitly rejected the applicant’s contention that the police were influenced by political opponents (CB 166 [6]);
g)the Tribunal rejected the applicant’s claim that his future softball activities will be reported by the media across India (CB 166 [63]). The Tribunal also found (CB 167 [69]) that the applicant would be “lost to those harassing him”;
h)the Tribunal considered whether it would be reasonable, in the sense of practicable, for the applicant to relocate to another region. The Tribunal referred (CB 166 [64] and CB 167 [68]) to the applicant’s particular characteristics and circumstances in a manner that discloses no error;
i)although the Tribunal gave particular consideration to the state of Kanataka in relation to a possible region to which the applicant could relocate (CB 167 [66]) the ultimate finding is not confined to that other region. The finding in the final sentence of CB 167 [66] must be read with the Tribunal’s reasons at CB 166 [64] in which the Tribunal notes that independent country information that citizens of India enjoy the freedom of movement in its 28 states and seven territories with the exception of Kashmir and Jammu (CB 158);
j)in considering whether the applicant would engage in political activities upon relocation, the Tribunal noted (CB 167 [67]) that he could face a real chance of persecution once again. However, the Tribunal then found that the applicant “could seek effective protection from the state”;
k)this finding is consistent with the Tribunal’s earlier finding that the applicant’s fear of suffering persecutory harm in the future is “localised to the region where he lived and worked”;
l)more importantly, it is also consistent with independent country information before the Tribunal. The Tribunal set out in its reasons an extract from the United Kingdom’s Home Office Operational Guidance Notes on India dated April 2008 (CB 157);
m)the fear the applicant claims in the present case is not from the central authorities but from a specific and localised set of circumstances including failure of the local police to provide protection to the applicant in the past, as found by the Tribunal;
n)thus, the independent country information, in the form of the Home Office report, provides a more than adequate basis to support the Tribunal’s finding at CB 167 [67] that the applicant could seek effective protection from the state in another region in India were he to engage in political activities.
In summary, the Minister submits that:
a)the relevant enquiry in the assessment of the availability of relocation is that propounded by the High Court in SZATV, namely whether, under all the circumstances, it would be reasonable to expect the applicant to seek refuge in another part of the same country;
b)the finding of future persecutory harm is limited to a localised region where the applicant lived and worked;
c)the finding at CB 167 [66] is not confined to the state of Kanataka but also contemplates other regions of India (save for Kashmir and Jammu), as noted earlier by the Tribunal at CB 166 [64];
d)the finding at CB 167 [67] is supported by independent country information;
e)otherwise, the Tribunal’s findings concerning the reasonableness and practicability of the applicant relocating to another region in India do not disclose error.
Reasoning
There is no substance to the applicant’s claim of bias. The applicant’s claims were considered by the Tribunal and there is no evidence of bias. The difficulty in this case arises from the Tribunal’s findings that the applicant faced a well-founded fear of persecution in his home state of Kerala (and it seemed to follow that effective state protection was not available there) but found, without analysis, that effective state protection would be available elsewhere. The question is whether the Tribunal was distracted from its fundamental enquiry concerning the effectiveness of state protection against the risk of repetition of serious harm which the Tribunal found the applicant had experienced by focusing on the reasonableness of relocation (which the Tribunal admittedly gave consideration to).
At [62] of its reasons (CB 166) the Tribunal stated:
The Tribunal accepts that the applicant has a well founded fear of persecution for a Convention reason, his political opinions. The Tribunal accepts that there have been four attempts to harm the applicant by members of opposing political parties. On three of the occasions he escaped without harm and on the [fourth] occasion he was hospitalised. The Tribunal also accepts that the applicant has lived in fear and frequently changed his location. However the Tribunal finds that the persecution to which he has been subjected is located to the places where he lived worked and played softball. The Tribunal is satisfied any future harm the applicant fears is as a result of the events which occurred within his local area and it is satisfied that the harm he may fear in the future is localised to the region where he lived and worked. The Tribunal finds that it is reasonable for the visa applicant to relocate within India.
The Tribunal then went on to consider the applicant’s profile and found that his sporting activities would not give rise to an increased profile. The Tribunal found that it would be reasonable for the applicant to seek refuge in another part of India and gave consideration to the applicant’s language and religion and psychological state. Critically, however, the Tribunal then stated at [67] (CB 167):
The Tribunal has had regard to the applicant’s activities on relocation. The applicant’s claimed difficulties were the result of his claimed political activities and on relocation if he were to engage in political activities he could face a real chance of persecution once again. However the applicant could seek effective protection from the state.
The Tribunal does not explain why effective protection would be available from an Indian state outside the state of Kerala if the applicant continued his political activities and faced a real chance of persecution once again where effective state protection was proven to be unavailable in Kerala. Logically, there must be something about either the quality of the protection or the quality of the risk of harm that would change as between Kerala and some other place in order to render state protection effective outside of Kerala. The answer may lie at [69] of the Tribunal’s reasons (CB 167) where the Tribunal said:
The Tribunal does not accept the applicant’s claims that if he goes back to India he will be killed. The Tribunal finds that the applicant’s political opponents have been unsuccessful in their four attempts to harm him over a period in excess of ten years approximately[1]. In addition the Tribunal finds that the harassment to which the applicant was subjected has been localized to his current place of residence and locations of his softball and political activities in India. The Tribunal finds that the applicant and on relocation within India the applicant will be lost to those harassing him and therefore no longer have a well founded fear. (sic)
[1] In fact the Tribunal had already accepted that the applicant’s political opponents had been successful in harming him on the fourth occasion – see [29] above.
The Tribunal’s reasoning may have been that the difference would not be the effectiveness of the protection but the quality of the harm the applicant might experience. In other words, the Tribunal may have reasoned that the serious harm the applicant experienced in Kerala would not be repeated outside Kerala and whatever harm he might experience, he could obtain protection against it. That is, as I understand it, what the Minister submits. However, it is difficult to reconcile such reasoning with the Tribunal’s acceptance of the proposition that if the applicant were to engage in political activities again he could face a real chance of persecution once again. The applicant is (amongst other things) a communist supporter and the Tribunal appears to have accepted that his political activities had brought him into conflict occasioning serious harm in the past and might do so again, even if he relocated.
In SZATV v Minister for Immigration [2007] HCA 40 at [9]-[22] Gummow, Hayne and Crennan JJ explained the relocation principle in the following terms:
In this Court, active opposition to the appeal was provided by the Minister. The Tribunal entered a submitting appearance. The appellant identifies as the primary issue the correctness of the "internal relocation principle" which was expounded by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs.
In Randhawa, after referring to the text of the Convention relating to the Status of Refugees ("the Convention") and in particular to that part of the definition of the term "refugee" in Art 1A(2), Black CJ said[3]:
Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their county of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.
The appellant points to the absence from the text of the Convention definition of any reference to relocation to a safe area within the country of nationality or a former habitual residence. He correctly submits that any notion of "relocation" and of the "reasonableness" thereof is to be derived, if at all, as a matter of inference from the more generally stated provisions of the definition.
The Convention definition is drawn into Australian municipal law by s 36(2) of the Act. It supplies a criterion for the grant of a protection visa. Provision is now made in the Act by way of further specification of some of the general terms used in the Convention definition of "refugee". Sections 91R and 91S[4] are examples. However, no such provision is made respecting any "relocation principle".
On the other hand, § 208.13 of the United States Code of Federal Regulations, which is headed "Establishing asylum eligibility", provides in part:
An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country of nationality or, if stateless, another part of the applicant's country of last habitual residence, if under all the circumstances it would be reasonable to expect the applicant to do so.
Further, with respect to the European Union, a Council Directive of 29 April 2004[5] contains the following as Art 8, with the heading "Internal protection":
1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.
2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.
3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.
But, as indicated above, in Australia any "principle" respecting "internal relocation" must be distilled from the text of the Convention definition, which is applied by s 36(2) of the Act as a criterion for the grant of a protection visa. The critical portion in Art 1A(2) of the Convention definition of "refugee" states that that term shall apply to any person who:
(2) owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence ... is unable or, owing to such fear, is unwilling to return to it.
Of that provision McHugh and Gummow JJ said in Minister for Immigration and Multicultural Affairs v Khawar:
This passage presents two cumulative conditions, the satisfaction of both of which is necessary for classification as a refugee. The first condition is that a person be outside the country of nationality 'owing to' fear of persecution for reasons of membership of a particular social group, which is well founded both in an objective and a subjective sense. The second condition is met if the person who satisfies the first condition is unable to avail himself or herself 'of the protection of' the country of nationality. This includes persons who find themselves outside the country of their nationality and in a country where the country of nationality has no representation to which the refugee may have recourse to obtain protection. The second condition also is satisfied by a person who meets the requirements of the first condition and who, for a particular reason, is unwilling to avail himself or herself of the protection of the country of nationality; that particular reason is that well-founded fear of persecution in the country of nationality which is identified in the first condition.
The definition of 'refugee' is couched in the present tense and the text indicates that the position of the putative refugee is to be considered on the footing that that person is outside the country of nationality. The reference then made in the text to 'protection' is to 'external' protection by the country of nationality, for example by the provision of diplomatic or consular protection, and not to the provision of 'internal' protection provided inside the country of nationality from which the refugee has departed. (emphasis in original)
The applicants for protection visas in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 were Ukrainian nationals. In a joint judgment, Gleeson CJ, Hayne and Heydon JJ said of the Convention definition:
The immediate context is that of a putative refugee, who is outside the country of his nationality and who is unable or, owing to fear of persecution, unwilling to avail himself of the protection of that country. As explained in Khawar, we accept that the term 'protection' there refers to the diplomatic or consular protection extended abroad by a county to its nationals. In the present case, the first respondent must show that he is unable or, owing to his fear of persecution in Ukraine, unwilling to avail himself of the diplomatic or consular protection extended abroad by the State of Ukraine to its nationals. Availing himself of that protection might result in his being returned to Ukraine. Where diplomatic or consular protection is available, a person such as the first respondent must show, not merely that he is unwilling to avail himself of such protection, but that his unwillingness is owing to his fear of persecution. He must justify, not merely assert, his unwillingness.
It also is well settled since Chan v Minister for Immigration and Ethnic Affairs and Minister for Immigration and Ethnic Affairs v Guo, that the requirement that the "fear" be "well-founded" adds an objective requirement to the examination of the facts and that this examination is not confined to those facts which formed the basis of the fear experienced by the particular applicant.
With these propositions in mind, it will be seen that the matter of "relocation" finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department. His Lordship said:
The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason.
The reference in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring not to the phrase "the protection of that country" in the second limb of the definition, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals.
Lord Bingham went on in Januzi to refer to the statement in the UNHCR Handbook, at [91]:
The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.
His Lordship, significantly both for Januzi and the present appeal to this Court, added:
The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country.
(footnotes omitted)
The difficulty in this case, in my view, is that the Tribunal, having found (in effect) that the Indian authorities in Kerala were unable to provide effective protection against the harm that the applicant experienced, did not consider in any meaningful way whether effective protection would be available from the Indian state elsewhere. The Tribunal found that the applicant would not have a well-founded fear of those who had been harassing him in Kerala because once he relocated he would be lost to them. However, the Tribunal also found that if the applicant continued his political activities he could face a real chance of persecution once again, presumably at the hands of others. There is simply no explanation for the Tribunal’s finding that effective state protection would be available against that risk of future persecution.
I reject the Minister’s submissions that the Tribunal’s finding on the availability of effective state protection is supported by the UK Home Office note on India reproduced at CB 157. That states that a fear based on local police and individuals may be avoided by relocation. That much may be accepted. But it does not answer the question: what happens if on relocation the same problems recur? The Tribunal accepted that there was a real risk that the applicant might be persecuted again if on relocation he pursued his political activities. In other words, while his problems had always been local, the nature of his political activities meant that there was a risk that the problems could recur wherever he went. While his problems were local he could not escape them simply by changing locale. He would simply be exchanging one set of local enemies for another. He needed effective local protection.
The Tribunal had available to it country information about police protection (CB 160-161):
The following information relates to police protection
The US Department of State 2008 “Country Reports on Human Rights Practices” for India (published in February 2009) contained this broad overview:[2]
India is a multiparty, federal, parliamentary democracy with a bicameral parliament and a population of approximately 1.1 billion with an active civil society. Manmohan Singh became prime minister following his Congress Party-led coalition’s victory in the 2004 general elections, which were considered free and fair, despite scattered instances of violence. Serious internal conflicts affected the states of Jammu and Kashmir, as well as several states in the north and east. While civilian authorities generally maintained effective control of the security forces, security forces occasionally acted independently of government authority during incidents of communal tensions in states such as Karnataka.
The government generally respected the rights of its citizens; however, serious problems remained. Major problems included extrajudicial killings of persons in custody, disappearances, and torture and rape by police and other security forces. Investigations into individual abuses and legal punishment for perpetrators occurred, but for the majority of abuses, the lack of accountability created an atmosphere of impunity. Poor prison conditions and lengthy detentions during both pretrial and trial proceedings remained significant problems. Officials used special antiterrorism legislation to justify the excessive use of force. Corruption existed at all levels of government and police. The government applied restrictions to the travel and activities of visiting experts and scholars. Significant restrictions remained on the funding and activities of NGOs. Increasing attacks against religious minorities and the promulgation of antireligous conversion laws were concerns. Violence associated with caste-based discrimination occurred. Domestic violence, child marriage, dowry-related deaths, honor crimes, female infanticide and feticide remain serious problems. Trafficking in persons and exploitation of indentured, bonded, and child labor were continuing problems.
[2] The US Department of State 2008 “Country Reports on Human Rights Practices” for India
That information provided no support for the Tribunal’s conclusion. On the contrary, the information singled out for special criticism the police in the state to which the Tribunal found the applicant could relocate. While the Tribunal’s ultimate conclusion was not limited to relocation to Karnataka, it was that state to which the Tribunal found the applicant could relocate as a matter of practicality.
In my view, the Tribunal was distracted from a proper enquiry into the issue of relocation by concentrating on the practicalities of relocation rather than the fundamental issue of the effectiveness of state protection. I accept that this did not require a two step process of reasoning by the Tribunal. The effectiveness of state protection outside Kerala was a part of assessing the reasonableness of relocation. But it was an essential part of that assessment and the Tribunal’s finding was no more than a bald unsupported assertion. Such a formulaic approach to decision making is a jurisdictional error: Lafu v Minister for Immigration [2009] FCAFC 140. Because the Tribunal was distracted from the proper and necessary enquiry the Tribunal’s review miscarried and there was a constructive failure of jurisdiction. In the circumstances, the applicant should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding thirty-nine (39) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 26 August 2010
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