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[2001] FCA 804
Federal Court of Australia
2001-06-28
Gyles J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for review of the decision of the Refugee Review Tribunal ("the RRT") made on 29 January 2001 and handed down on 20 February 2001. The RRT affirmed the decision of the delegate of the respondent Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the applicants. The first applicant, Jacqueline George, is a citizen of India. The other two applicants, Samantha George and Vanessa George, are her daughters. The applicants arrived in Australia in March 2000. Consideration by the RRT and argument before me has naturally concentrated upon the position of the first applicant and I shall do so in this judgment. 2 When the matter came on for hearing before me on 22 June 2001 it was apparent that the submissions which were proposed to be put by counsel for the applicant were not properly encompassed by the application then on foot in the proceeding. I granted leave to the applicants to file what amounted to a fresh set of grounds, with an amended application. I need not set out these grounds in full. The first applicant is an Anglo-Indian, Roman Catholic woman who fears persecution if she returns to India because of her religious beliefs and her practice of them.
Real chance of being persecuted 3 The applicant's first submission was that the RRT, in the course of finding that the applicant does not face a real chance of being persecuted, ignored relevant material. It was submitted that the relevant material was: (1) the possible perception held of the applicant by those she claimed are seeking to persecute her; and (2) country information indicating that Christians perceived to be actively associated with the Church are at greater risk of persecution than other Christians. It was submitted that this alleged ignoring of relevant material by the RRT in such a way affected the exercise of its power and constitutes an error under s 476(1)(b) or 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). This is very much bound up with the first submission made under this heading, which was that the RRT, in the course of finding that the applicant does not face a real chance of being persecuted, failed to identify and consider the issue of whether the applicant faces a real chance of persecution because of the perception held of her by those she claimed are seeking to persecute her. This failure was said to constitute an error of law under s 476(1)(e) of the Act. 4 In his written submissions, counsel for the applicants referred to the RRT finding (at 24): "I am not satisfied that a person like the applicant, who does part-time community work in a Church environment, is at risk of persecution upon return to India." and submitted that there was material which indicated that the applicant at certain periods had worked full-time for the Church and had a close connection with it and that she had been targeted by some unidentified Hindu militants because of her religious work. It was submitted that the material indicated that: (a) the applicant, in light of her involvement with the Church between 1991 and 1995, may be perceived to be more actively associated with the Church than a "part time community work[er] in a church environment" [sic]; and (b) Christians actively associated with the Church are at greater risk of attack than other Christians and that this was relevant to whether the applicant faced a real chance of persecution if she was required to return to India. It was submitted that this was material which the RRT ignored in deciding that the applicant does not face a real chance of persecution on her return to India. It was submitted that if the RRT ignores relevant material in such a way as affects the exercise of its power, this constitutes an error of law under s 476(1)(e) of the Act or an error in relation to jurisdiction under s 476(1)(b) (see Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 31 (at pars 32 to 83) ("Yusuf")). 5 Counsel for the respondent submits that in relation to this issue (and the other issues argued) counsel for the applicant has read too much into the decision of the High Court in Yusuf, and that there is only a jurisdictional error or error of law if the RRT ignores a consideration made relevant by the statute. It was submitted that the fact that material before the RRT is relevant does not convert it into a relevant consideration. 6 It is also submitted for the respondent that the decision of the RRT has been read far too narrowly on behalf of the applicant. I was taken to a number of passages from the decision of the RRT which showed, it was said, that it had approached the whole issue of persecution of Christians in India in a comprehensive way, encompassing the matters relied upon by the applicant. Having considered the reasons of the RRT as a whole, I agree with that submission for the respondent. The distinction between actuality and perception may have significance in some cases, but I cannot see that it does here. There is no reason to believe that the RRT did not take into account the history of the first applicant. At the most, it could be said that the RRT made a mistake as to this history, although I do not believe that to be the case. I cannot detect the alleged jurisdictional errors or errors of law in the way in which the RRT approached the relevance of Christian beliefs and practise to persecution in India. It is not necessary in this case to consider the decision in Yusuf more closely. 7 Counsel for the applicant put a separate argument based upon the position in the State of Karnataka, the state in which the first applicant resided before she came to Australia. It was submitted that the country information indicated that there is a nexus between the political party in power in a state of India and the incidence of attacks against Christians in that state and that, in particular, the Bharatiya Janata Party ("BJP") was implicated in incidents of violence and discrimination against Christians, with an increase in complaints made upon the BJP coming into power in any place. It is suggested that the RRT took into account that the State of Karnataka was ruled by the Congress Party, which had strong secular views, with a history of support for religious minorities, but did not take into account the possibility that governments change and that the BJP had branches in the southern states (although there was no particular evidence in relation to Karnataka). It was submitted that there may be a real chance that the BJP will come into power in the reasonably foreseeable future and that would lead to the applicant facing a real chance of persecution. The failure to advert to this meant that the real chance test was misapplied (see Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559 at 574-5) giving rise to an error under s 476(1)(b) or s 476(1)(e) of the Act. 8 This complaint is also answered by the submission for the respondent that it is clear from the decision of the RRT as a whole that it considered very fully the risks of persecution of Christians in various parts of India, taking into account the political situation and the political parties. The country information was very fully extracted and there is no reason to believe that it was not properly taken into account. The manner in which it is taken into account is entirely a matter for the RRT. Counsel for the respondent also points out that the RRT found that the BJP did not condone or associate with the militant Hindu element in India and that the party leadership had disassociated itself from persecution. This, in itself, is an adequate answer to the applicant's point. Counsel for the respondent also submits, correctly in my view, that there is nothing in the material before the RRT going beyond conjecture or surmise as to the BJP coming into power in Karnataka. 9 Under this general heading, counsel for the applicant raised what he called "the sub-issue of State protection". He submitted that the fact that the RRT found that the Indian authorities would offer protection to the applicant does not avoid consideration of the errors already relied upon, citing the decision in A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545 (at 554). Even if this proposition be correct, it does not found any independent basis for relief and does not add to the arguments which I have dealt with already.
relocation issue 10 The RRT found (at 25) that: "… it is reasonable and feasible for the applicant to relocate as she has education and experience to live in areas where she can find ready-made communities." It is argued for the applicant that an express basis for this finding was that the applicant had "the means" to relocate, whereas the applicant had stated that she would have "no savings" on her return to India. It was put that that, plus the fact that she might be in a position of a single mother with two dependent children, meant that in the present case a practical matter or reality which the RRT failed to consider was the possibility that the applicant did not have the financial means to relocate, despite the express evidence on the matter before it. This was said to be contrary to the judgment of Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 (at 442). This was said to give rise to an error under s 476(1)(e) of the Act. 11 Counsel for the respondent does not concede that it was necessary for the RRT to consider relocation at all, as there had been no finding of the necessary kind concerning fear of persecution in her home city of Bangalore. Be that as it may, what the RRT actually said was (at 25): "For persons like the applicant who have the means and enterprise to travel to country (A), country (B) and Australia and are young, mobile, enterprising and healthy, other Indian destinations are feasible, at least as temporary havens, until the tension in their home state subsides. I am satisfied that it is reasonable and feasible for the applicant to relocate as she has the education and experience to live in areas where she can find ready-made communities. (The references to the actual countries A and B were removed to avoid identification.) The RRT had already found that the overwhelming majority of incidents against Christians had occurred in just a few States (particularly Gujarat and Orissa) (at 24) and was satisfied that if the applicant resided in a State outside those particular States the applicant did not face a real chance of being targeted or harmed by reason of her religious belief or practise. 12 In my opinion, even if this Court were able to review findings of fact by the RRT, these findings were well open to the RRT on the facts before it, regardless of the precise financial position that the applicant may have been in upon her return to India. There is no jurisdictional error or error of law in the sense that term is defined in s 476(1)(b) or s 476(1)(e) in the manner in which this topic was decided. Under this heading, the point concerning the BJP is raised again, and I reject it for the reasons I have already expressed.
Conclusion 13 The applicants have therefore failed to establish the grounds that have been advanced. The application is dismissed. The applicants are to pay the costs of the respondent. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice .
Associate: Dated: 28 June 2001 Counsel for the Applicant: BM Zipser
Solicitor for the Respondent: Blake Dawson Waldron
George
Minister for Immigration & Multicultural Affairs