MZWDL v Minister for Immigration and

REASONS FOR JUDGMENT 1 Before the Court is an appeal against a judgment of Federal Magistrate McInnis, delivered on 21 March 2006. His Honour dismissed an application for review of a decision of the Refugee Review Tribunal made on 15 January 2004. That decision affirmed the decision of the delegate of the first respondent, the Minister for Immigration and Multicultural Affairs, not to grant protection visas to the appellants. The appellants are husband and wife. The primary claim was made by the husband, so that the wife's appeal depends on the success of the husband's appeal. Consequently, I will refer to the husband as the appellant in this judgment. BACKGROUND 2 The appellant's visa application briefly outlines the essence of his claim, which was elaborated upon in his evidence before the tribunal. The tribunal noted certain differences between the claims made in the appellant's visa application, and his oral evidence before the tribunal. However, those differences do not assume significance in this appeal. The claims made by the appellant are set out in the decision of the tribunal in detail. It is therefore only necessary for me to summarise the substance of those claims. 3 The appellant claimed that he was a businessman; a shopkeeper in Gujarat, India, and that he was a Muslim. He described how people from the Vishva Hindu Parishad (VHP) demanded protection money from him to protect him and his business. In relation to this extortion, he stated that: … VHP group is supported by Gujarat Government. Its [sic] is the political party against the Muslims in entire Gujrat state. … 4 He explained that on one occasion, people from the VHP came and demanded a very large amount of money, which he could not afford to pay. Previously, he had made the requested payments. On this occasion, following his refusal, the VHP threatened to kill him and his family if the amount was not paid. He reported this extortion to the police and several of the extortionists were arrested. As a result, the appellant was abducted and told he would not be released unless he withdrew the charges. He felt that he had no choice and did withdraw the charges. He was seriously bashed and thrown from a motor vehicle, which resulted in hospitalisation for some time. 5 The appellant further claimed that he was approached by the VHP to give property to them. When he refused, two people came to his shop, and fired shots, causing the death of a client. The police were called, and certain people were arrested. The appellant was able to identify the murderer. As a result, the VHP tried to prevent him from giving evidence in the Court by harassment and threats. THE DECISION OF THE TRIBUNAL 6 After setting out the claims made by the appellant, the tribunal outlined independent information about India. It reviewed the place of Muslims in India, noting that followers of Islam make up about 12 percent of India's population, while 81 percent are Hindu. Nine percent of the population of Gujarat is Muslim. It then examined the serious incidences of violence between Hindus and Muslims in India in the 1990s. Turning to Gujarat in particular, the tribunal described the 2002 Godhra railway massacre, where 58 passengers were killed, most of them VHP activists returning from Ayodhya. It described the retaliation brought against the Muslim community. It described the political events in Gujarat in 2002, and noted the re-election of the BJP with its strongly pro-Hindu, traditional Hindu ideology. A picture was painted of very serious communal violence at certain times in Gujarat. 7 The tribunal then gave its reasons for rejecting the appellant's application. Firstly, it dealt with the subject of extortion and said at 15-16: The applicant has claimed that he was for an extended period, he said for a number of years, subjected to demands for money from people he said were with the VHP, a Hindu group. I accept that as a shop owner, and so someone thought to have money, the applicant was subjected to such demands as were other business people. The applicant said that Hindus were not pressed to pay the money as the Muslims shop owners were but his evidence was that they were asked just as he was. The applicant said that he had previously complained to the police about the extortion demands but they had done nothing. The applicant suggested that this was because the state was governed by Hindus. He said that he had not provided a statement for fear that the harassment from the goondas would have worsened. The applicant states that the demands increased after the eruption in communal violence following the Godhra incident in February 2002 and I accept that those who had extorted money could have taken advantage of the troubled situation to increase their demands. The applicant said that he usually gave the money but had once refused and been beaten up and had to have stitches. What the applicant said he feared seemed to me to be analogous with the circumstances described in Ram v MIMA (1995) 57 FCR 565. In his judgment (at 569), Justice Burchett stated: Plainly, extortionists are not implementing a policy, they are simply extracting money from a suitable victim. Their forays are disinterestedly individual. … [The appellant] does not fear persecution for reasons of membership of a particular social group, but extortion based on a perception of his personal wealth and aimed at him individually. 8 The tribunal went on at 16: I do not consider that the evidence about the applicant's experiences as a business owner indicates that it was his religion which was the essential and significant reason for the extortion demands which he experienced or which he may face up on return. His own evidence indicated that Hindu business owners were also subjected to such demands. I note that he has claimed that they were not pressed to pay as the applicant claims the Muslims were and note that this may have been because they agreed to pay more readily. The evidence indicates to me that the essential and significant reason for the extortion demands was the applicant's perceived possession of money, a perception reinforced by him having given them money for a long time. Consequently such treatment does not constitute serious harm under section 91(R) of the Act for a Convention reason. I note as well that the applicant's evidence about the police response to the extortion demands which the applicant reported to them did not indicate that their lack of action was determined or influenced by the applicant's religion; it appears that they had required a statement which the applicant had not given them. He said that this was because he was afraid that the harassment by the extortionists could increase had he done so but if this was in fact why he refused to give the police a statement then it is hard to see why he would have reported what was happening to the police in the first place. He had been a successful business man and must have some understanding that the police require reports and some evidence before they can act to arrest or charge a person. I do not consider that the evidence indicates failure or significant shortcomings in relation to the police response to the extortion demands. 9 The tribunal then dealt with to the claim relating to the consequences of the appellant's witnessing of the murder of a Hindu customer. The tribunal said at 16-17: I have considered carefully the applicant's evidence about the murder of a Hindu customer which occurred in his shop. He claimed at the hearing that this occurred following some six months harassment by the people who extorted money from him about a very large payment which had been sought but which he said he had refused to pay. The applicant had been beaten at the time and a customer was shot. There were aspects of the applicant's evidence which gave rise to concerns that he was not providing an accurate account. The applicant said that he saw those responsible for the killing but did not know their names, made a statement to the police and two people were arrested. His evidence indicated that the police identified the two from his description, that the two were goondas and that the police knew the goondas in the area, that there were only two in the locality and that the police were afraid of them. Yet different goondas arrived at his home fifteen or so days after the murder to tell the applicant not to be a witness and the police did arrest two people notwithstanding being afraid of them. The applicant's evidence about conduct of the prosecution was confused. He said at the hearing that from Australia he had telephoned a friend who said that the people charged might be released and the applicant said that the people would be out by now although also appeared to think that the case would open in court some time in the future. It is possible that people facing such serious charges could be released on bail in advance of the trial but the applicant's claim that they are out because the government is the BJP and the police cannot do anything does not sit easily with the police action to charge the people with murder which he has said occurred. If the applicant were in fact to give evidence in the case as he claims (the resulting threats are a major reason for his fear of returning), it is surprising that his evidence about the conduct of the case was so confused. If the applicant was in fact a witness to the murder and was to give evidence against those accused and if people associated with those accused have threatened him with harm if he were to give such evidence, I do not consider that such circumstances engage the provisions of the Refugees Convention. What the applicant fears - that is is being hurt by people who want to stop him from giving evidence about the crime - will not in my view occur because of a reason in the Refugees Convention. What he fears will not happen because of his race, religion, nationality or political opinion and there is no particular social group to which the applicant could be seen to belong and which would be the reason for what he fears might occur. The reason for what the applicant fears is that he witnessed a crime which occurred in the context of extortion demands and this is not a matter which can give rise to a finding of persecution as the term is used in Australia's refugee law because the harm will not be for a reason specified in the Refugees Convention. 10 The tribunal then considered the final part of the claim, namely that which related to the demand for property. The tribunal said at 17-18: … As with my finding about the reason for the demands for money which the applicant experienced, I do not consider that the evidence indicates that the essential and significant reason for the demand that the applicant give property was his religion or any of the other reasons in the Refugees Convention. I consider that the evidence indicates that the demand was an opportunistic attempt to take something from a person who was reasonably well off. … 11 Having made the findings that each of the claimed incidents of persecution was not related to a reason provided for in the Refugees Convention, the tribunal moved to consider whether the general situation in Gujarat for Muslims did engage the Refugees Convention. That is, would the appellant suffer persecution for the reason that he was Muslim. The tribunal stated at 18-19: Notwithstanding my conclusion that matters associated with the extortion demands and having witnessed a crime do not engage the provisions of the Refugee Convention, the applicant is a Muslim from a state where there has been over the last two years, including time when the applicant was still there, terrible violence between Hindus and Muslims in which Muslims have been most of the victims. Independent information confirms that they was large scale retaliatory action taken against Muslims in many parts of Gujarat after the burning of the train at Godhra in February 2002. I accept that the troubles are not over and that the situation remains volatile. Such conflict would not only be manifested in acts of extreme violence and information I have read indicates that there has also been suspicion, harassment, abuse and intimidation between followers of the two religions. The applicant has submitted that the BJP government of Gujarat has been complicit in aspects of the mistreatment of Muslims and independent information suggests that there were occasions when this was so. It has pointed also to concerns that the issues of concern to Hindus have been given greater attention that those where Muslims have been affected. That some people in a country have suffered or suffer persecution and that an applicant claims to have suffered as these people have, or to be in similar circumstances as those who have suffered and so be at risk of similar treatment, does not, of itself, establish that an applicant's claimed fear is well-founded within the meaning of the Refugees Convention. The Tribunal is obliged to consider the totality of the evidence about the particular circumstances of the applicant against information about conditions in the country in reaching its conclusions about what has happened to the applicant in the past, what might follow on the applicant's return to their country and how these facts relate to the definition of a refugee in the Refugees Convention. I have had regard to the evidence which indicates that the applicant has not experienced persecution on account of his religion in the past even though he lived in a Hindu area. As well, I have had in mind the number of Muslims in Gujarat (some 4 million in a population of some 50 million), the numbers of people who have been killed or displaced in the violence and the information I have read which indicates that most of these have occurred in eruptions of violence in a limited number of particular localities. It has been at these times when state protection has been found to be less than adequate. I note that the applicant has stated that he lives in a Hindu area and consider that he could choose to move to live in a different area of the city. While I can understand the applicant's wish to leave his country, I have come to the view that the chance of the applicant coming to serious harm, of a kind which could constitute persecution, as a consequence of communal trouble in the reasonably foreseeable future on account of his religion is remote. CONSIDERATION OF THE GROUNDS OF APPEAL 12 The Federal Magistrate was pressed with three grounds of review and rejected each of them. Those same grounds have been raised in this appeal. The first ground of appeal is that the tribunal failed to consider whether the acts of past persecution by members of the VHP occurred for reasons of imputed political opinion. 13 In NABE v MIMIA (No 2) (2004) 144 FCR 1; [2004] FCAFC 263 at [55] to [63], the Full Court determined that the tribunal is not only bound to deal with claims expressly articulated by the applicant but must consider an unarticulated claim that is 'raised squarely' on the material available to the tribunal. There is no precise standard for determining when an issue is raised squarely, but a claim which is not expressly advanced will nonetheless need to be considered by the tribunal if it is apparent on the face of the material before the tribunal. 14 Mr Gibson, counsel for the appellant, accepted that the tribunal was not required to engage in any particularly creative investigation, or make out the case for the appellant. However, he relied upon the decision of the Full Court in Dranichnikov v MIMA [2000] FCA 1801 at [49], which established that the appellant does not have to identify the correct Convention 'label' in order to succeed before the tribunal. Mr Gibson also contended that in order to properly raise the ground of imputed political opinion, it was unnecessary for the appellant to show that he had engaged in political activity or action. The ground concerns the perception of others as to the political opinion which the appellant is thought to hold. 15 The factual foundation for this argument was said to be in the reasons for the tribunal's decision where it stated at 15: The applicant has claimed that he was for an extended period, he said for a number of years, subjected to demands for money from people he said were with the VHP, a Hindu group…. 16 Mr Gibson contended that throughout its reasoning, the tribunal's emphasis was on the religious threat to the appellant. There was no reference to the possibility that the appellant was targeted by reason of the VHP's perception that, as a Muslim, he would be opposed to the political aims and aspirations of the VHP. This focus was said to be in error because it failed to understand that part of the appellant's claim, as expressed in his visa application as follows: … VHP group is supported by Gujarat government. Its [sic] is the political party against the Muslims in entire Gujarat state. … 17 On the basis of this description, Mr Gibson argued that the imputed political opinion of the appellant was sufficiently raised on the materials to require the tribunal to address it directly as a ground of the application. He said that the political opinion to be imputed to the appellant flowed from the fact that the appellant was a Muslim and the VHP was a political organisation which was, according to the claim, against Muslims. 18 In my view, the Federal Magistrate was correct in rejecting this ground of challenge to the decision of the tribunal. On a fair understanding of the claims being raised by the applicant his complaint was, taken at its very highest, a claim which sought to rely on his religion as the reason for the harm which he suffered. There was no suggestion in his application that there was any basis upon which people would view him as having any particular political opinion. The mere fact that the VHP was a political organisation unfavourable to Muslims is, on its own, insufficient to establish any claim based on an imputed political view held by the appellant. 19 Next, the appellant contended that the tribunal failed to consider the question of whether the acts of past persecution by the VHP occurred for reasons of membership of a particular social group, namely, Muslim shopkeepers and businessmen. Again, in my view, the short answer to this challenge is that the suggested claim of membership of a particular social group was not raised by the appellant. It is to read too much into the claims made by the appellant to conclude that they suggested that the VHP targeted Muslim shopkeepers. The tribunal analysed the facts, and found not only that there was no Convention reason for the acts taken against the appellant, but that at 16: … The evidence indicates to me that the essential and significant reason for the extortion demands was the applicant's perceived possession of money, a perception reinforced by him, having given them money for a long time. … 20 The same view of the facts was expressed by the tribunal in relation to the threats associated with the appellant's witnessing of the murder. The tribunal said at 17: … What he fears will not happen because of his race, religion, nationality, or political opinion and there is no particular social group to which the applicant could be seen to belong and which would be the reason for what he fears might occur. The reason for what the applicant fears is that he witnessed a crime which occurred in the context of extortion demands and this is not a matter which can give rise to a finding of persecution as the term is used in Australia's refugee law because the harm will not be for a reason specified in the Refugees Convention. 21 In relation to the third element of the claimed persecution against the appellant, the tribunal again found as a fact, that the reason for the demands for property was not based on religion, or any other reason in the Convention. The tribunal concluded at 18: … I consider that the evidence indicates that the demand was an opportunistic attempt to take something from a person who was reasonably well-off. … 22 Thus, the tribunal's finding of fact in each of the three areas of the claim was that the reason for the threats and conduct was that the appellant was seen to be a person who had resources which the VHP could access. The claim made by the appellant did not naturally suggest that he was targeted for any reason other than that he possessed those resources. So much was held by the tribunal, and no error as suggested is demonstrated. 23 Finally, the appellant contended that the tribunal erred in law by finding that the appellant could choose to move to another part of the city where he lived, without considering whether he was able, or whether it was reasonable for him, to relocate. In essence, this ground of appeal seems to suggest that the tribunal, in the paragraphs previously set out in [11] of these reasons, failed to properly consider the question of relocation in accordance with the authorities of Randhawa v MILGEA (1994) 52 FCR 437 and SZDSI v MIMA [2006] FCA 425. It was also suggested that the reasoning of the tribunal in this regard failed to avoid the error identified in Appellant S395v MIMA (2003) 216 CLR 473; [2003] HCA 71 (Appellant S395). It is true that the tribunal said at 19: … I note that the applicant has stated that he lives in a Hindu area and consider he could choose to move to live in a different area of the city. … 24 It is also true that, as a treatment of relocation, the statement would be lacking as a full consideration of the question. However, the focus of those two paragraphs was not directed to relocation alone. In those two paragraphs, the tribunal, very properly, looks at the communal situation between Hindus and Muslims in Gujarat. This discussion is linked to its review of the country information. In undertaking this investigation, the tribunal extended the scope of its inquiry beyond the precise boundaries formulated by the appellant. It took on the task for itself of examining whether the difficulties of the appellant, as a Muslim living in a majority Hindu society in Gujarat, was likely in the future to create a threat of persecution to qualify the appellant as a refugee within the Convention. 25 The tribunal summarises the country information and outlines the potential threats to Muslims in Gujarat. It then states for itself the task as follows at 19: … The Tribunal is obliged to consider the totality of the evidence about the particular circumstances of the applicant against information about conditions in the country in reaching its conclusions about what has happened to the applicant in the past, what might follow an applicants' return to their country and how these facts relate to the definition of a refugee in the Refugees Convention. … 26 Importantly, the tribunal started on a process of reasoning which begins with its previous finding that the applicant did not experience persecution on account of his religion in the past, even though he lived in a Hindu area. The tribunal, taking account of that background, considers the circumstances in Gujarat. It comes to the conclusion on the facts that at 19 : … the chance of the applicant coming to serious harm, of a kind which could constitute persecution, as a consequence of communal trouble in the reasonably foreseeable future on account of his religion is remote. 27 In other words, the primary purpose of the discussion in these paragraphs is to make an assessment of the communal situation between Muslims and Hindus in Gujarat, against the findings of the personal circumstances of the appellant. The conclusion reached as a result of that examination is that the risk to the appellant of persecution in the reasonably foreseeable future is remote. 28 I agree with the submission of the first respondent that the relocation conclusion is but a reinforcement of the primary line of reasoning in those paragraphs. Thus, even if one were to find that the way in which the tribunal dealt with relocation or with the Appellant S395 issue was defective, it would not be an effective challenge to the tribunal's decision. Consequently, in my view the appeal must be dismissed. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.