19 I interpolate that there may well be an error in the way this matter was approached. The Convention speaks of a "well-founded fear of being persecuted for reasons of ... religion ...". In my opinion, if persons are persecuted because they do not hold religious beliefs, that is as much persecution for reasons of religion as if somebody were persecuting them for holding a positive religious belief. The Convention protects people in relation to the subject matter of religious belief. It does not protect believers and leave non-believers to the wolves. If there is anything in Shahzad Gul Awan v Minister for Immigration & Multicultural Affairs [1998] FCA 435 to the contrary, with respect I disagree with it, believe it to be clearly wrong and would not follow it.
20 As I have indicated, the Tribunal was prepared to accept, generously I think, that persons who breach caste rules may form a particular social group in India in the Convention sense. The Tribunal member rejected persecution for reasons of membership of such a social group because ostracism from family members did not amount to persecution, nor did ostracism by some friends. The Tribunal also rejected the allegation that they could not find a house to rent because they were an unmarried couple and de facto relationships were not accepted in India.
21 There may be, with respect, some confusion of concepts in the exposition of the Tribunal's reasons on this issue and there seems to have been a failure to make positive findings one way or the other about whether the applicants were physically assaulted on account of their flouting caste mores. However, as will appear, it is not necessary for me to consider these matters further.
22 The Tribunal member went on to consider the applicants' claims "cumulatively as the claims are inter-woven and cannot be readily categorised within just one of the reasons raised in the Convention". However, the claim was rejected on this basis as well. Reference was made to the facts that in late 1996 and early 1997 the applicants evidently had no fear of persecution in India and that the husband had the support of senior government Ministers and officials for his sporting endeavours.
23 The Tribunal member accepted evidence, though I think there was evidence to the contrary, that they were free under Indian law to marry, so that there was no persecution of them in that regard.
24 The Tribunal member then considered whether the wife might be a refugee for reasons of her membership of the social group defined as "women in India". The Tribunal member rejected the claim that she was "assaulted by police in Convention related circumstances in Guwahati and Punjab". The basis of the rejection of this claim was that the applicant's evidence was implausible. The reason for implausibility given was that it was extremely unlikely that the Punjab police would be brought into the matter and that they would arrange for three to four police officers to travel for several days to collect her and return her to the Punjab where they would assault and then release her. In rejecting this claim, the Tribunal member said:
"… I am satisfied the applicant has not been truthful in giving evidence in relation to this aspect of her claim. I am satisfied that the applicant is not at risk of persecution because she is a woman."
However, the Tribunal member did say:
"I am also aware that there is evidence to indicate that police have often misused their power and sexually assaulted women in Indian prisons."
25 As a matter of fact, this process of reasoning may not have been followed by everyone. Certainly it would be logically possible that the applicant wife may have been raped by police on two occasions in two locations even if police from the latter location did not travel across India to bring her back. It was submitted that the Tribunal had misapprehended that the applicable test was whether there was a "a real chance" that the applicant wife might be persecuted and that relevant to that question, was whether there was a real chance that her story as to rape by officials had some credibility, and that it was unreasonable to reject her story. There may or may not be anything in this submission but to my mind it is quite clear from s 476(2)(b) that the matter is not reviewable before me upon that basis.
26 Finally, before dealing with the issue of relocation, the Tribunal member rejected a claim of sur place issues of persecution arising out of an attempt to bribe the applicants in relation to the process of having their claims considered in Australia. No more I think need be said about the matter than that. The Tribunal's approach was plainly correct.
27 Very importantly, the Tribunal member dealt with the question of relocation. The Tribunal member applied the approach enunciated in Randawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 by Black CJ (with whom Whitlam J agreed) and referred also to remarks of Mansfield J in Singh v Minister for Immigration & Multicultural Affairs (2000) 98 FCR 469 at para 30. The Tribunal member noted that the applicant husband had carried on an established business, had access to financial resources through friends and sponsors and had a quite vast amount of travel experience both in India and other countries. There were therefore "no logistical barriers to his finding a part of India in which to settle".
28 The Tribunal member said:
"In this case having regard to a broad range of issues I am satisfied relocation is a real option and the applicants have genuine access to meaningful protection in their country of origin. I must look at the genuineness of the domestic protection, the quality of internal protection to be satisfied that it meets basic norms of civil; political, and socio-economic human rights, which internal safety is not illusory or unpredictable and state accountability for the harm is established."
29 The Tribunal member noted that both applicants had managed to obtain employment in Australia; that they had the resilience and flexibility to be able to re-settle themselves in a foreign milieu; that they were both well-educated, having university degrees recognised in India, and that the husband had been able to establish a successful and profitable business and sell himself to sponsors before and after marriage. In particular, the Tribunal member noted that India was a country with a population of over a billion people and he accepted a description of India as:
"a democratic country which holds regular elections in which Governments do change and which has independent courts of integrity which strive to fulfil their role as honest arbiters between the citizen and the state."
30 The Tribunal member also referred to the fact that the applicants speak three languages, would have no difficulty communicating and are young and healthy. The Tribunal member concluded:
"I am satisfied that the practical realities are such that they are able to relocate without difficulty. Their abilities are such that the applicants could relocate to many parts of India far from their former home and not expect to encounter any Convention difficulty. I [recognised] that safety is clearly one of the prime factors. I am satisfied that they will have the same level of protection [as] all other Indians."
31 The Tribunal member rejected a submission of the applicants that "relocation has been tried and failed". He pointed out that the difficulty in Guwahati, if the applicant wife actually had suffered any, was not directly related to the earlier matters. In this regard the Tribunal member said:
"While it is not necessary for me to identify a particular place to which the applicants may relocate looking realistically and sensibly at the possibility [ies] I am satisfied that the south of India where in some parts [the] majority are not Hindu is a reasonable alternative and an area where they are not at risk."
32 With the exception of one matter to which I will come in a moment, these findings about relocation appear to me to be decisive of the case and, if there were other errors involving any failure to properly consider whether the applicants may be refugees pursuant to the Convention, they are legally irrelevant if the findings as to relocation are legally unassailable. In my opinion, such findings are legally unassailable.
33 It may be that in another country, in other circumstances, if a putative refugee had for Convention reasons suffered serious social insult and assaults in one place and moved to another and suffered similar harm, to insist that the applicant should try a third or a fourth place might indicate legal error in considering the question of reasonableness of relocation. Relocation, it must be remembered, is relevant to the actual Convention test of whether the putative refugee has a "well-founded fear" of persecution in their country of nationality. However, that is hardly the case here. Although the Tribunal member did not expressly articulate it, it is inherent in the references to the vastness of India's population (and is, I think, notorious) that India is a country of immense social diversity. The conclusion to which the Tribunal member came, having regard to the various factors to which he quite properly referred, seems to me not only legally unassailable but, if I may say so, factually unavoidable.
Bias
34 The remaining matter to which I should refer is the question of supposed actual bias on the part of the Tribunal member. In support of this ground it was suggested that the Tribunal member had, in relation to the female applicant's claims of rape, failed to keep the proceedings confidential. Further, the circumstances of the attempted bribery of the applicants indicated that the would-be extortionist knew the Tribunal member's name before the applicants had received notification of the hearing. Neither matter betokens any bias on the part of the Tribunal member, however unfortunate the circumstances otherwise were.
35 The submissions go on to confuse a necessity for justice to be seen to be done with a supposed necessity that the Tribunal member should have disqualified himself from the hearing for the actual bias. At best what might have been involved was apprehended bias, which is not reviewable in this Court. It was finally submitted that the Tribunal member had closed his mind to the issues raised in relation to the bribery matter but in my opinion, with respect, this is a confusion of ideas and there is nothing in it.
36 The written submissions deal with a good many other matters but, in view of my conclusions about the relocation questions, I need not refer to them as they could not overcome that matter.
Disposition
37 The application for judicial review will be dismissed. The applicants are to pay the respondent's costs of the proceeding.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.