S1983 of 2003 v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 The Appellant, who is identified for the purposes of these proceedings as Applicant S1983 of 2003, is an Indian citizen who was born on 21 July 1956. On 8 November 1994 he arrived in Australia travelling on an Indian passport and using an Australian Business Visa which authorised him to remain in the country for up to three months. 2 On 25 September 1997 he applied for a Protection Visa (866). On 2 October 1997 the Minister's delegate refused that application. 3 On 15 October 1997 the Appellant applied to the Refugee Review Tribunal ('the Tribunal') for review of the Minister's delegate's decision. 4 By letter dated 9 February 1999 the Tribunal advised the Appellant that it was unable to decide the matter favourably to him on the information then available to it. Accordingly, it invited him to attend a hearing of the Tribunal to give oral evidence in support of his claims. 5 On 17 May 1999 the Appellant appeared at a hearing of the Tribunal which lasted for a little over an hour. 6 On 31 May 1999 the Tribunal handed down its decision which was to affirm the Minister's delegate's decision not to grant a Protection Visa to the Appellant. The Tribunal was not satisfied that the Appellant was a person to whom Australia had protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees ('the Refugees Convention'). 7 On 8 October 2004 the Appellant applied to the Federal Magistrates Court of Australia for constitutional writ relief under s 39B of the Judiciary Act 1903 (Cth). On 17 December 2004 the Appellant filed an Amended Application in the Federal Magistrates Court of Australia and thereafter filed a Further Amended Application dated 24 August 2005. 8 The last mentioned Further Amended Application was the application which was considered by the Federal Magistrates Court of Australia on 8 September 2005. On that occasion Mr A N Silva, solicitor, appeared for the Appellant and Ms L Clegg of counsel appeared for the Respondent Minister. When the matter came before this Court on 9 March 2006 the Appellant was again represented by Mr Silva and the Respondent Minister by Ms Clegg. 9 On 22 November 2005 the Federal Magistrate before whom the matter had come delivered his decision and dismissed the application. 10 On 6 December 2005 the Appellant filed a notice of appeal from the decision of the Federal Magistrate and on 9 March 2006 made an application for leave to file in Court an amended notice of appeal. That application sought to amplify both grounds 1 and 2 as expressed in the original notice of appeal. The application for leave to amend the notice of appeal was refused in respect of ground of appeal 1 but, by consent, allowed in respect of ground of appeal 2. 11 Accordingly, the grounds which now fall for consideration are as follows:- 'Ground 1 The Federal Magistrate erred by not holding that the Tribunal made jurisdictional error as it held that the Applicant's fear of persecution was not well founded based on critical findings which were without evidence. Ground 2 The Federal Magistrate erred by not holding that the Tribunal made jurisdictional error in that it used wrong test in (a) deciding whether the state protection is available for the Applicant in India (b) deciding that it is reasonable for the Applicant to relocate in India' 12 Section 45(1) of the Migration Act 1958 (Cth) ('the Act') makes provision for non-citizens to apply for visas of particular classes. Under s 65(1) of the Act the Minister is to grant the visa, after considering a valid application therefor, if satisfied of certain matters. Section 65(1)(a)(ii) provides:- '(1) After considering a valid application for a visa, the Minister: (a) if satisfied that: … (ii) the other criteria for it prescribed by this Act or the regulations have been satisfied; and … is to grant the visa;' 13 If the Minister is not so satisfied, the Minister is required under s 65(1)(b) of the Act to refuse to grant the visa. 14 In the case of the class of visas known as Protection Visas the relevant criterion in respect of which the Minister must be satisfied is set out in s 36(2) of the Act which provides as follows:- '(2) A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; …' 15 Under Clause A(2) of Article 1 of the Refugees Convention the term 'refugee' applies to any person who:- 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and … owing to such fear, is unwilling to avail himself of the protection of that country …' 16 The Tribunal recorded the Appellant's claim of persecution as follows:- 'The applicant is claiming persecution for reason of membership of a particular social group in that he claims he fears harm from Shiv Sena Hindu extremists and from the Indian government due to his membership of both the Sindhi community and his being a low caste Hindu. He also states that poverty exacerbates his situation.' 17 In respect of the Appellant's claims the Tribunal's 'Findings and Reasons' were expressed as follows: 'The Tribunal accepts the applicant's claims that he and his family have suffered as members of the Sindhi minority in India and as low caste Hindus. Although the independent information above would appear to indicate that Muslims from Pakistan have been particularly targeted by such Hindu extremists as Shiv Sena, it is plausible that hostility to people from Pakistan would spill over and result in hatred of Sindhi Hindus, particularly where they are of a low caste. Specifically, the Tribunal has no reason to doubt that the applicant's father was killed in a communal riot and that the shop of the applicant was also destroyed in a riot. The independent evidence cited above indicates that the Shiv Sena in Bombay would seem to be particularly intolerant of minorities and that this intolerance is supported by the state government which they dominate. However, the Tribunal finds no support for the applicant's contention that "the Indian government encourages fundamentalist people to 'kill and eradicate' low caste people". Indeed, the independent information indicates that the Indian government through constitutional and legislative provisions is taking steps to address the discrimination experienced by scheduled castes. The Tribunal also acknowledges that the independent evidence indicates that there occurs regularly in India inter-caste tensions and that there is evidence of inter-caste based communal violence. However, the independent evidence indicates that most state and federal governments take active steps to put an end to communal violence. Clearly no State can ensure the complete safety of all of its citizens against all forms of harm, mistreatment or even death (See Thiyagarajah v MIMA (1997) 73 FCR 176 at 179 and Full Federal Court in MIMA v Prathapan (1998, 156 ALR 672 at 682). However, the independent evidence indicates that the Indian authorities act to restore order in situations of civil disturbance and take action against those who have committed criminal offences. In the light of this, the Tribunal finds that the applicant's fear of persecution for his membership of a particular social group, being low caste Hindus, not to be well founded. [the findings for which the Appellant alleges that there was no evidence as recorded in ground 1 are those which have been highlighted in bold] The Tribunal finds that it is reasonable in the circumstances for the applicant to move to a different part of India where discrimination on the basis of caste or of being a Sindhi is not so prevalent and does not have the degree of state government support as is found in the applicant's home state of Maharashtra. The Tribunal notes that the US State Department's India Country Report on Human Rights Practices for 1998, identifies certain areas of India where caste discrimination is worse than other areas. In the circumstances the Tribunal finds it is reasonable for the applicant to relocate to an area of India where caste discrimination is not so prevalent and where state protection would be available. [the last mentioned passage which has been highlighted is said to demonstrate that the Tribunal used the "wrong test" in deciding whether State protection was available for the Appellant in India and in deciding that it was reasonable for the Appellant to relocate in India as suggested in Ground 2] The Tribunal has considered the applicant's statement that he could not relocate because his family were too poor to move. The Tribunal finds this to be implausible in the light of the applicant's ability to find the money to relocate to Australia. The Tribunal finds the applicant has relocated to Australia for some four and a half years and he holds a bachelor's degree and an electrician's diploma indicating that he has skills that are readily transferable to live elsewhere in India. In the light of this, the Tribunal finds it is reasonable for him to relocate to some other area of India where he would be at some distance from the danger he feels in Maharashtra state. The applicant has cited poverty as exacerbating his difficulties in living in India. The Tribunal sympathises with the applicant but finds that any harm arising from poverty not to be for a convention reason. In the light of the evidence before it, the Tribunal cannot be satisfied that there is a real chance the applicant might face persecution in the foreseeable future for his membership of a particular social group or for any other Convention reason. Therefore the Tribunal finds his fear is not well founded.'