"The fact that I am a woman also leaves me very vulnerable and puts great pressure on me as my hindu and Indian culture dictates that I should be submissive and stay at home and that I should not be practising my faith and helping other people out in the villages."
The delegate of the Minister, in his determination made on 13 July 1993 recognised that she had made such a claim. He accepted that her position as an active Christian may put her at some disadvantage in an Indian society in a social and cultural sense, but not that any stigma that may be associated with that role would amount to persecution. Provisions in the Indian constitution promise equality before the law and prohibit discrimination on the basis of sex. He noted recent changes to laws governing personal, criminal and labour aspects pertaining to women, and the media's more extensive reporting on such matters. These matters indicated to the delegate that the government of India was taking steps to protect women from human rights abuses. He also considered that she could take reasonable steps, such as relocating herself away from those who have harassed her, to minimise the risk of suffering adverse treatment because of her position.
The Tribunal appears not to have been asked to consider a claim by the applicant that she is a refugee by reason of a well-founded fear of being persecuted for reasons of her membership of a particular social group.
Counsel for the Minister, whilst contending that the Tribunal had not fallen into error in not considering a matter not put to it, nevertheless - rather than needing to proceed to a determination, if necessary by report from the Tribunal or by evidence, as to whether the point was taken before the Tribunal - adopted the position that it was appropriate for me to deal with the complaint.
The applicant sought to identify the social group as "single women in India". It was no more limited than that.
I do not need to finally determine whether categorisation of a particular social group as being comprised of single women in India, of which the applicant is a member, may be a particular social group within the meaning of the Convention, and as incorporated into domestic law. The concept of a particular social group has recently been considered by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (24 February 1997, unreported).
The issue in that case was whether the appellant's fear of persecution was for reasons of membership of a particular social group, namely those in China who having only one child do not accept the limitations placed on them or who are coerced or forced into being sterilised. The group was so defined only by reason of the particular government policy and action said to constitute the persecution. Specifically, the Court was asked to determine whether the fact that the social group, as defined, only existed because it was the object of the particular government policy precluding it from being a particular social group for the purposes of the Convention. There was no issue as to the existence of a well-founded fear of forced sterilisation. By a majority (Dawson, McHugh and Gummow JJ, Brennan CJ and Kirby J dissenting), the Court concluded that the particular social group could not be so defined or identified for the purposes of the Convention.
That decision is not, of course, directly on point. It did however discuss at some length the circumstances in which the concept of "particular social group" came to be included in the Convention and the general scope of its meaning (esp per Brennan CJ at 4-5, Dawson J at 19-21, McHugh J at 34-35, and per Kirby J at 80-84).
Brennan CJ (at 5) considered the ordinary meaning to refer to any group identifiable by any characteristic common to members of the group, with some characteristic which distinguishes them from society at large. He said the distinguishing characteristic may consist in any attribute, including attributes of non-criminal conduct or family life. The apparent breadth of the term he described as a 'safety net'. His disagreement with the majority was really as to whether the characteristic had to be "innate and unchangeable" (an expression used by La Forest J in Canada (Attorney-General) v Ward (1993) 103 DLR (4th) 1 at 33-34) or whether it could be identified from the persecutory conduct itself. Dawson J (at 13) expressed similar views on the breadth of the general concept, and he added:
"I can see no reason to confine a particular social group to small groups or to large ones; a family or a group of many millions may each be a particular social group. Nor is there anything to suggest that the uniting particular must be voluntary ... Furthermore, the significance of the element as a uniting factor may be attributed to the group by members of the group or by those outside it or by both."
See also the observations of McHugh J at 40-42, leading to his view (at 42) that it may include:
"... a reasonably large group of individuals ... linked or unified by some common characteristic, attribute, activity, belief, interest or goal which itself does not constitute persecution and which is known in but not shared by the society as a whole ..."
and the broad expressions used by Kirby J (at 91). It appears that Gummow J would take a more limited approach, requiring more than numerous individuals with similar characteristics or aspirations but also a common unifying element binding the members together.
This Court has also considered that expression in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401 and in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. In Morato, Lockhart J (at 416) commented:
" 'Social' is a word of wide import. The Oxford English Dictionary states as one of its definitions "pertaining, relating, or due to ... society as a natural or ordinary condition of human life". This is a helpful guide for present purposes. In my opinion the words "social group" signify a cognisable or recognisable group within a society, a group that has some real common element. Although a voluntary association of persons may fall within the definition, it is not a requirement that there be such an association to constitute a social group within the definition of "refugee"."
I am prepared to assume, without finally deciding, that 'single women in India' may constitute a particular social group for the purposes of the Convention. That assumption seems to reflect the wide interpretation of that expression generally reflected in Applicant A (above) and in Morato (above). However, in my view, there are no findings in the reasons of the Tribunal, and there were no other findings urged in submissions which it was contended the Tribunal should have made, and which would lead to the conclusion that in any relevant sense the applicant, as a member of that group, was being persecuted. The general assertion that Indian society is generally patriarchal does not really advance the matter without specific content to the conduct which might constitute persecution. It is axiomatic that the establishment of one only of several matters necessary to be established to succeed in an application is insufficient to succeed in the application. Thus, I do not think this ground of attack succeeds.
Discrimination in employment
For the purposes of this aspect of the claim, I shall assume that the applicant has established that, at least within Andhra Pradesh or parts of it, her religion and/or her political beliefs either preclude or substantially inhibit her eligibility for employment in the public sector.
The Tribunal concluded that such discrimination would not amount to serious harm, as she has been able to obtain work in the private sector (albeit at a lesser salary) and so her "rights (sic) to earn a living has been upheld." Any such discrimination, it found, did not amount to persecution.
The measure of discrimination sufficient to constitute persecution arose for consideration in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. Mason CJ (at 388) referred to:
"... a real chance that the applicant will suffer some serious punishment or penalty or some significant detriment or disadvantage if he returns. ... The denial of fundamental rights or freedoms otherwise enjoyed by nationals of the country concerned may constitute such harm, although I would not wish to express an opinion on the question whether any (his emphasis) deprivation of a freedom traditionally guaranteed in a democratic society would constitute persecution if undertaken for a Convention reason."
Dawson J expressly declined to explore that issue, as on the facts before the Court the applicant faced a threat to his freedom which, on any view, would amount to persecution (at 399-400) and Gaudron J also limited her consideration of the question to the particular facts (at 416). McHugh J addressed the question at greater length (at 429-431). He said:
"But not every threat of harm to a person or interference with his or her rights for reasons of race, religion, nationality, membership of a particular social group or political opinion constitutes 'being persecuted'. The notion of persecution involves selective harassment ... As long as the person is threatened with harm and that harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she is 'being persecuted' for the purposes of the Convention ...
Moreover, to constitute "persecution" the harm threatened need not be that of loss of life or liberty. Other forms of harm short of interference with life or liberty may constitute "persecution" for the purposes of the Convention and Protocol. Measures "in disregard" of human dignity may, in appropriate cases, constitute persecution: Weis "The Concept of the Refugee in International Law", Journal du Droit International, (1960), 928, at p. 970. Thus the U.N.H.C.R. Handbook asserts that serious violations of human rights for one of the reasons enumerated in the definition of refugee would constitute persecution: par. 151. In Oyarzo v. Minister of Employment and Immigration [1982] 2 F.C. 779, at p. 783 the Federal Court of Appeal of Canada held that on the facts of that case loss of employment because of political activities constituted persecution for the purpose of the definition of "Convention refugee" in the Immigration Act 1976 (Can.), s. 2(1). The Court rejected the proposition that persecution required deprivation of liberty [1982] 2 F.C., at p. 782. It was correct in doing so, for persecution on account of race, religion and political opinion has historically taken many forms of social, political and economic discrimination. Hence, the denial of access to employment, to the professions and to education or the imposition of restrictions on the freedoms traditionally guaranteed in a democratic society such as freedom of speech, assembly, worship or movement may constitute persecution if imposed for a Convention reason: Goodwin-Gill, pp. 38 et seq."
In the Office of the United Nations High Commissioner for Refugees Handbook on Procedures and Criteria for Determining Refugee Status (1992) at 15, reference is made to discrimination of a substantially prejudicial nature for the person concerned e.g. "serious restrictions on his right to earn his livelihood ...". Chapter 4 of Professor Hathaway's book "The Law of Refugee Status", Butterworths 1991, discusses the nature of persecution at some length esp at 116-124. Included in the 'basic and inalienable rights' are those in Articles 6 and 7 of the International Covenant on Economic, Social and Cultural Rights (United Nations' General Assembly, Resolution 2200 A (XXI), 16 December 1966) protecting the
right to work, including just and favourable conditions of employment remuneration, and rest.
In my view, the Tribunal erred in concluding that the ability to obtain work in private enterprise reflects the State upholding the "right to work", where the State either imposes or tolerates a system which precludes certain of its citizens from working in government employment for reasons of religion or political beliefs. Far from treating its citizens equally, the State then is sanctioning discrimination against some of them for Convention reasons. It is difficult to envisage circumstances where such discrimination may, in a practical sense, be insignificant. That is the more so when there is a significant economic disadvantage consequent upon that restriction, although actual economic disadvantage in an immediate personal sense is not per se the critical matter. It is unnecessary to resort specifically to relatively recent historical examples to make the point. To characterise the circumstances as not sufficiently serious to constitute persecution in my view fails to acknowledge the fundamental significance of the State positively excluding certain of its citizens for Convention reasons from employment by the State and its organs.
As I have said above, I am unclear whether the Tribunal in fact found that to be the case in any event. It would, therefore, but for the further point raised by the Minister, be necessary to refer this matter back to the Tribunal for further consideration.
The Minister's submission is that, even assuming such institutional policy or tolerance in Andhra Pradesh, it is not shown to be a position which obtains throughout India. The Tribunal did not address that question. In Randhawa v Minister for Immigration and Ethnic Affairs (1994) 35 ALD 1, the Full Court (Black CJ, Beaumont and Whitlam JJ) rejected an application for refugee status as the applicant, a Sikh vulnerable to persecution for a Convention reason should he return to Punjab in India, could settle and reside peacefully in many other areas of India. Black CJ (at 4), with whom Whitlam J agreed, stressed that 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. In affirming what is called variously 'the internal protection principle', 'the relocation principle' and 'the internal flight alternative', Black CJ referred to both text and authorities to make the point that refugee law is intended to meet the needs of only those who have no alternative to seeking international protection.
It is important to note, however, the additional and 'important' question as to whether the applicant for refugee status could, in all the circumstances, reasonably be expected to relocate. As Black CJ explained (at 5-6):
"... notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal Ex parte Jonah [1985] Imm AR 7. Professor Hathaway, op cit at 134, expresses the position thus:
The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognised. [Emphasis in original text.]
It is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded."
Burchett J expressed similar views.
The Tribunal did not address that question. There was apparently some evidence on the topic, as it noted in its reasons that the applicant had said that it was difficult for a single women to move in India. No doubt the Tribunal did not take the question further in view of its decision that there was, in the circumstances, no relevant persecution. But, on my conclusion, the Tribunal was obliged to address that matter. It is not for the Court to do so, as it is not apprised of all the factual material before the Tribunal. Despite the submission that I should assume, or conclude, to the contrary in the absence of any finding on the topic, I do not think I should do so. The circumstances applicable to the applicant personally will be relevant to that question, and I am not in a position to conclude that a particular answer to the question is in effect inevitable or very likely.
Discrimination in proselytising
The Tribunal's findings on this topic, are as set out in its conclusion and in part in the body of its judgment. In my view there are two questions to address:
1) whether the Tribunal is correct in concluding that there is no right to proselytise, so the inability to do so does not establish a denial of her right to freedom of religious opinion, and
2) if contrary to the Tribunal's view, there is such a right, is the decision sustainable on the alternative grounds contended for by the Minister to support the decision, namely:
a) that the discrimination was not persecution because it was not "institutional", that, it was not imposed by nor condoned nor tolerated by the State nor in a context where effectively the State was powerless to protect it, and
b) that any such discrimination is localised only, so the applicant could avoid such discrimination by moving elsewhere within India.
No doubt because the Tribunal concluded that, because proselytising "is not a right", being denied the right to proselytise is not "tantamount" to losing the right of religious freedom, it did not specifically make a finding on either of those matters. It noted her evidence that:
"... she would sometimes be ordered out of the village ... and sometimes young boys or youths would throw stones at her and chase her away."
It also noted the evidence that, although there is friction between religious groups in India, India is a secular State and freedom of religion is practised and is part of the Indian Constitution, so such conduct was not condoned by the Indian Government, and further that there is a well organised legal and judicial system and citizens have access to that system.
There is some basis for the applicant's claim that the Tribunal erred in law in concluding that the practise of proselytising is not relevant to her right to practise her religion. Professor Hathaway (above) at 146-147 says:
"Alternatively, because religion includes also behaviour which flows from belief, it is appropriate to recognize as refugees persons at risk for choosing to live their convictions. This proposition is constrained only by the limitation expressed in the International Covenant on Civil and Political Rights:
Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.
While the scope of this restriction is arguably broad, the assertion in one Board decision that "[g]iven the applicant's religious attitude ... one might reasonably expect that he will 'keep his mouth shut'" is simply wrong. The peaceful expression of one's beliefs, including engaging in worship, playing an active role in religious affairs, and proselytizing may give rise to a genuine need for protection."
No Australian authority was referred to. The footnote to proselytising refers to Orhan Demir, Immigration Appeal Board Decision (Canada) 6 January 1983 but see Panagiotis Billias, Immigration Appeal Board (Canada) 7 July 1980; those decisions are not available to me. Professor Hathaway's text is capable of providing some guidance, but of course is not definitive.
I do not finally need to decide that question. It was not suggested that the Tribunal had inaccurately or incompletely referred to the applicant's evidence on this topic. On the basis of it, in my view, she would fail in any event as it would not be established that such behaviour as she complains of is institutional in any relevant sense. The behaviour of some men and boys in some villages in which the applicant has preached to some extent is, or may be, criminal conduct. It was not suggested that such conduct was initiated by the State, nor that it was either officially or unofficially tolerated by it. Nor does the finding of such conduct amount to a finding that such conduct is effectively uncontrollable by the Indian authorities.
Political harassment
For the same reason and for one other reason, in my view the applicant cannot succeed on this aspect of her complaint. The step of converting the clearly offensive and apparently intimidating behaviour of a few members of the Congress Party towards the applicant because of her good work, or because of her complaining about them to the police, into persecution for a Convention reason cannot be taken. It is not shown either to be persecution by any form of institutional conduct on the part of the State in any sense nor is it shown to be conduct engaged in by reasons of the applicant's political beliefs.
In my view, no reviewable error is shown in how the Tribunal approached this aspect of the applicant's claim.