NAWD v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-06-02|Before: Bennett J

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) seeking review of a decision made by the Refugee Review Tribunal ( 'the Tribunal') on 19 August 2003 and handed down on 16 September 2003. The Tribunal affirmed a decision of a delegate of the respondent ('the Delegate') to refuse the applicant a protection visa. The application to this Court, filed on 29 September 2003, makes no assertion of jurisdictional error nor does it give any particulars relevant to such an assertion. The application, in effect, asks for the decision of the Tribunal to be set aside and provides a chronology of the applicant's arrival in Australia, when he applied for a protection visa and when the application was refused by the Delegate and the Tribunal. At the hearing before me today, the applicant appeared in person assisted by an interpreter.

background 2 The applicant is a 27 year old male and a national of India. He entered Australia on 31 March 2002 on a business visa. On 29 April 2002 he lodged an application for a protection (class XA) visa. The applicant claimed a well-founded fear of persecution in India on the basis of his political opinion arising from his support of the Kerala Congress (M) Party. In his application he claimed that: (a) he was a candidate in his school elections in 1990 and that members of the opposition Communist Party of India threatened that they would not allow him to enter the school; (b) he complained to the police who arrested some of them but thereafter 'party members attacked [him] frequently'; (c) he started his own business in 1997 but his workers were members of the Communist Party and 'they were making problems with Party support'; and (d) after the assembly election in his state, party members attacked him and their intention was to kill him. 3 On 21 May 2002, the Delegate wrote to the applicant and invited him to comment on the following information:

(a) BBC news reports that the Congress Party had won the assembly elections in Kerala in 2001 and that the Communist Party did not do well in Kerala, indicating that the applicant's party was in government and that the applicant could seek protection from the authorities from his perceived enemies; and

(b) the USA State Department report on human rights practices which states that freedom of movement is guaranteed and respected in India, indicating that the applicant could re-locate to other parts of India where the Communist Party does not have any influence.

4 The applicant responded by letter, received on 26 June 2002, and stated that:

(a) even though the Communist Party had lost the election it did not lose its majority amongst government officers;

(b) in Kerala the Communist Party still attacked Ministers, in particular Mr Raghavan and Mr Gauriamma; and

(c) the Communist Party is a national party and has branches all over India. A person on their 'hit list' can easily be chased down.

The applicant also enclosed documents in relation to his election campaign in 1990, a letter from a Congress Party official in relation to his college admission and a photograph from his marriage which apparently included a Congress Party official. 5 The applicant did not provide any further information in support of his application. His application was refused by the Delegate on 28 June 2002.

the tribunal decision 6 On 18 July 2002, the applicant applied to the Tribunal for a review of the Delegate's decision. The applicant repeated his claims and included further claims that:

(a) the Communist Party members attacked his office twice 'and all the properties were destroyed';

(b) that after the applicant departed India 'they again attacked [his] house' and his father had received an anonymous letter saying that they would kill him; and

(c) the Communist Party members working in government departments such as the Tax Department were not allowing the applicant 'to continue the business the proper way'.

The applicant included copies of his school election posters and letters of introduction from Congress Party leaders. 7 On 7 May 2003, the Tribunal advised the applicant that it was not able to make a favourable decision on the information he had provided and invited him to attend a hearing on 11 July 2003. The applicant attended the hearing and gave oral evidence on 11 July 2003. On 25 July 2003, after the hearing, the Tribunal received a letter from the applicant enclosing a bundle of untranslated newspaper articles. The applicant stated in that letter that the newspaper articles proved that: 'still Communist Marxist Party is still attacking the other political party workers. Which proves that, even though the Communist Party is in opposition in Kerala and other states, they are still making political revenge on others. One of it shows that a party worker of Minister M. V. Raghavan is attacked and killed. So I feel they still may attack me if I go back to India'. 8 On 16 September 2003, the Tribunal handed down its decision, affirming the decision of the Delegate to refuse the protection visa. The Tribunal found that the applicant embellished his claims and that much of his story was implausible. In particular, the Tribunal made the following findings:

(a) noted that in May 2001, the Congress-led United Democratic Front alliance, which includes the Kerala Congress (M) Party, won a majority of more than two-thirds of the vote;

(b) accepted that there was an incident when the applicant was a 14 year old boy in 1990 or 1991 and that he may have had some difficulties with workers and tax officials in his first business from 1997;

(d) noted that claims made in his written statement were either not raised at the hearing or only repeated after specific prompting;

(e) did not accept that any difficulties with his workers or state officials from 1997 onwards was because he had made a complaint to police as a 14 year old boy;

(f) did not accept that, because of the 1991 incident, a major state political party would seriously target and pursue the applicant over a decade later; (g) did not accept that the applicant's life had been threatened or that there had been any attempt on his life; (h) did not accept that Communist Party harassment of him had increased after the Communist Party lost the election in 2001; (i) was unable to locate any independent information to suggest that Congress Party members or supporters are generally at risk of persecution or attack by political opponents; (j) considered that, in any event, there was effective state protection as it did not accept that Communist Party members or supporters could target or pursue government supporters with impunity without state authorities responding to criminal acts in accordance with normal practices and expectations; (k) was not able to locate any information about Ministers such as Mr Raghavan being attacked but, even if the material submitted by the applicant did demonstrate that some government activists have been attacked or harassed, it did not demonstrate that the Communist Party is able to target and persecute Congress Party members with impunity, or that the government was not willing and able to protect its citizens in Kerala. 9 Accordingly, the Tribunal was satisfied that the applicant did not face a real chance of persecution if he returned to India by reason of his actual or imputed political opinion. Further the Tribunal found that the applicant could relocate having regard to:

· the various other states in India where the Congress Party is in power;

· his ability to speak English which is widely used in India.

decision 10 A finding as to whether an applicant should be believed in his claim is a finding on credibility is a function of the Tribunal (Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Durairajasingham (2000) 168 ALR 407 per McHugh J at [67]). There was no suggestion in this case that the government of India was not in control of the country, including those parts of the country controlled by the Congress Party such as Kerala, or that the police force and judicial system were not reasonably effective and impartial. There was no basis to conclude that there was a failure of state protection nor, indeed, that such protection was sought after the applicant began to encounter problems in 1997, other than broad references (without detail) to complaints to the police which did not result in arrests during the time that the Communist Party was in power. The Tribunal stated that there was no evidence that the government refuses to take action when the Communist Party commits criminal acts, although the applicant disagreed with that proposition. 11 There was no evidence before the Tribunal to support a conclusion that India (or Kerala) did not provide its citizens with a level of state protection (Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18 ('S152') at [28] per Gleeson CJ, Hayne and Heydon JJ). As was said in S152 at [29], it was not enough, even if the Tribunal had accepted the applicant's claims, for him to show that there was a real risk that, if he returned to his country, he might suffer harm. He had to show that the harm was persecution and he had to justify his unwillingness to seek the protection of his country of nationality. 12 As the respondent submits, relying on S152, the effective state protection finding was open to the Tribunal as, in a practical sense, it was implausible that a party in government would not attempt to protect its supporters from harm (noting that there can be no guarantee of protection from harm) and the applicant had not justified why he had not sought that protection. It is also difficult to describe the events as set forth by the applicant as persecution within the meaning of article 1A(2) of the Convention (Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967) and as discussed in S152. Further, the Convention looks to the future and the Tribunal was satisfied that the applicant does not face a real chance of persecution on return to India by reason of his actual or imputed political opinion (S152 per McHugh J at [74]). 13 The country information did not suggest that Congress Party members or supporters are generally at risk of persecution. There was no information to satisfy the Tribunal that there is a real chance in the reasonably foreseeable future that the Congress Party would find itself out of office in all States or that Congress Party members or supporters would generally be persecuted. 14 Country information before the Tribunal led the Tribunal to conclude that it was reasonable for the applicant to relocate within India. This was put by the Tribunal to the applicant at the Tribunal hearing and, apparently, not challenged. It was open to the Tribunal to determine whether there was some location within India where he could reasonably be expected to live and was not at risk of harm (Randhawa v Minister of Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437). 15 The relocation principle as applied only means that the putative refugee is not at risk of persecution in his country of nationality. That principle is not contrary to the High Court decision in Appellant S395/2002 v Minister for Immigration & Multicultural & Indigenous Affairs; Appellant S396/2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 71 (see SKFB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 142). 16 At the hearing before me, the only matters raised by the applicant were that he told the Tribunal that there was a problem with the government and that the Tribunal had found there was no problem at all. He also referred to the material that he sent to the Tribunal on 25 July 2003 and said that this material was not referred to in the letter received by him from the Tribunal on 16 September 2003. That letter informed the applicant that the Tribunal had decided that he was not entitled to a protection visa. The material was, however, referred to in the Tribunal decision and dealt with. 17 The only other matter raised by the applicant was that he told the Tribunal that the Communist Party was strong in Kerala and that the Tribunal said it was not the case. That again was a finding of fact that was open to the Tribunal on the evidence before it. 18 The applicant has not established error on the part of the Tribunal let alone jurisdictional error. No such error is apparent to me. The application must be dismissed.

conclusion 19 The application is dismissed and the applicant is to pay the respondent's costs. I certify that the preceding ninteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bennett.

The Applicant appeared in person assisted by an interpreter

Counsel for the Respondent: R Francois

Solicitor for the Respondent: Clayton Utz

Date of Hearing: 2 June 2004

Date of Judgment: 2 June 2004

At a glance

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Judgment (29 paragraphs)

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