Modh v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 This is an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"), which, on 16 October 2000, affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse an application for the grant of a protection visa. The application as filed did not contain any particulars. On about 8 December 2000 the respondent's solicitor (and my associate) received from counsel, who had given some advice to the applicant, a proposed amended application and submissions. The applicant, who appeared unrepresented, adopted what had been forwarded by counsel. The respondent does not consent to the amendment proposed, but does not put forward any prejudice if it is granted. In these somewhat unusual circumstances, I granted leave to amend the application in accordance with the draft included in MFI 1 and the argument proceeded on that footing. I also indicated that I would have regard to the submissions which had been forwarded as, in effect, those of an amicus. My acquiescence in what has occurred in this case should not be taken as any precedent for the future. 2 The grounds of the amended application are as follows: "1. In making the decision the subject of this application, the procedures that were required by s 430 of the Migration Act 1958 (Cth) ("the Act") to be observed in connection with the making of the decision were not observed, which constituted a reviewable error under s 476(1)(a) of the Act. Particulars (a) The Tribunal failed to make a finding about whether the Applicant was unable to relocate to other parts of India because his father would require him to work in the family grain business. (b) The Tribunal failed to make a finding about whether there had been a sustained or systematic failure of state protection in relation to Muslim-Hindu clashes in the Applicant's state, nor whether any lack of protection was such as to indicate that India was unable or unwilling to discharge its duty to establish and operate a system for protection against persecution. 2. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law. Particulars (a) The Tribunal, in considering whether the Applicant was able to relocate within India rejected his reasons for being unable to relocate (or some of them) on the basis that those reasons "do not link the applicant's claim to the Convention". This involved an error of law. It is not part of the test for whether a person can reasonably relocate that each reason that prevents such relocation is a Convention reason. (b) The Tribunal, in considering whether the Applicant had a well-founded fear of persecution, considered that his fear was not well-founded because there "is no reason the authorities will not offer the applicant the same protection they offer any other citizen of India". This is the wrong test. It is not sufficient to find that the protection offered is offered on a non-discriminatory basis; there must also be a positive finding that there are mechanisms capable of offering protection at all." It will be seen that there is a symmetry between the particulars of each ground. 3 The applicant, who is of the Hindu faith, fears that if he has to go back to his home in India he will be subject to violence between the Hindu and Muslim communities. He comes from a town in Gujrab state where, apparently, the ratio of Hindu to Muslim is 50:50 and the police consist of representatives of each. The applicant's father is a prominent businessman, and a member of the Hindu community in his home town.

relocation 4 The Tribunal held that, even if the applicant's claims are accepted: "… even if rioting occurs in his home town other parts of India are relatively peaceful, especially for a person like the applicant who is part of the large Hindu majority in India. Persons, like the applicant, who have the means to travel to Australia and are young, mobile, single, with work experience in Australia and healthy, can live in Mumbai, Calcutta, Delhi or other Indian destinations. Such destinations are feasible, at least as temporary havens, until the tensions in the home town subside. The applicant speaks Hindi, the language of the majority in India and some English as well as his regional language. I am satisfied that he will not encounter serious harm for a Convention reason in living elsewhere in India. He found work in Australia without apparent difficulty. The applicant is educated and his qualifications are easily transportable in India. He transferred university without difficulty and there is no Convention restriction of his ability to relocate to his new university town or any other place. My findings are supported by the fact that when away from home as a student he did not encounter any difficulty in other parts of India. The applicant claims he is not talented, has no work experience in India and that he has no money so it would be too difficult for him to set himself up in India. The applicant claims he will be required by his father to work in the family grain business and this is a further reason he cannot relocate to another part of India. However, these reasons do not link the applicant's claim to the Convention. I am satisfied that he will not encounter difficulty upon return to India for any Convention reason. I am satisfied relocation is a reasonable and feasible option for the applicant. I do not accept that he is at risk in every part of India or [sic] do I accept that the applicant will face persecution for a Convention reason should he relocate. I am satisfied that any chance of harm if the applicant is away from his home town is remote. I am satisfied that he would only come to harm in Hindu Muslim violence if he was in the wrong place at the wrong time and as such his fear of persecution is not well-founded." (emphasis added) 5 The applicant submits that the emphasised parts of the decision of the Tribunal reveal that it has required that the reason why the applicant cannot reasonably relocate be a reason relating to one of the five grounds of Convention protected persecution, and that this is wrong, referring to Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525 and the authorities referred to in it. It is put that the Tribunal was required to make findings on whether the applicant had the financial and other resources to relocate within India, and whether he would be able to do so contrary to his father's wishes regardless of any Convention persecution. It is submitted that the failure to make these findings constitutes a breach of s 430 of the Act, and is therefore a reviewable error under s 476(1)(a) and also an error of law pursuant to s 476(1)(e) of the Act. 6 The respondent does not challenge the legal basis for this submission and, indeed, counsel referred to a passage in Perampalan v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 at 284 to the same effect. Rather, it was submitted that when the reasons of the Tribunal are considered as a whole and in a commonsense way (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), the Tribunal had found: (1) that it was reasonable to relocate, taking into account the circumstances, and (2) that, having relocated, the applicant would not be likely to suffer Convention related persecution. 7 Whilst there is something to be said for the submission made on behalf of the respondent, it seems to me that the emphasised parts of the decision, and particularly the sentence "However, these reasons do not link the applicant's claim to the Convention", appearing where it does, suggest that the Tribunal has conflated the two issues identified in the submissions on behalf of the Minister, and, consequently, did not address each separately. In my opinion, this was an error of law within the meaning of s 476(1)(e) of the Act. This makes it unnecessary to consider the argument that it was a breach of s 430 and therefore a reviewable error under s 476(1)(a).

At a glance

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Judgment (4 paragraphs)

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