APPEAL TO THIS COURT
14 The appellant, by notice of appeal, appeals the decision of Driver FM on three grounds as follows:
'(a) the Refugee Review Tribunal erred in concluding that a refugee applicant may Be [sic] persecuted not because of his affiliation to a particular social group but because of the affiliation of the persecutor's affiliation [sic] to a particular social group.
(b) The Refugee Review Tribunal took an irrelevant consideration into account as to the significance of the nature of applicant's friend's death in refusing refugee status to the appellant.
(c) The Refugee Review Tribunal failed to find that the Appellant has no state protection.'
15 The appellant has provided written submissions and made oral submissions today. Those submissions have been directed to explaining his original claims and pointing out the factual errors in the Tribunal's decision.
16 As expressed, the first ground raised in the appellant's notice of appeal seems to be a challenge made to the statement by Driver FM reproduced at [10] above, rather than a challenge to any statement by the Tribunal. This would seem curious since Driver FM's statement would, if anything, have assisted rather than hindered the appellant's cause. However, the appellant's submissions suggest that he supports, rather than challenges, the statement of Driver FM.
17 The first respondent has submitted that the statement at [6] by Driver FM is not supported by authority. It refers to Applicant A and Anor v Minister for Immigration and Ethnic Affairs and Anor (1997) 190 CLR 225 at 257-8, where McHugh J stated:
'When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind. The discrimination must constitute a form of persecution, and it must be discrimination that occurs because the person concerned has a particular race, religion, nationality, political opinion or membership of a particular social group. Discrimination - even discrimination amounting to persecution - that is aimed at a person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.'
18 I agree that Driver FM's statement does not appear consistent with authority or with the provisions of the Convention. In determining whether persecution is for a Convention reason, it is the social group of the applicant for a protection visa which is relevant, not the social group of any persecutors. I consider that the principle suggested by Driver FM at [6] of his Honour's reasons is incorrect. I make no finding about whether the persecution alleged by the appellant in this case could have constituted persecution for a Convention reason.
19 In any event, Driver FM himself concluded that this was a case in which it was open to the Tribunal to find that the dispute was personal in nature, so the comments made by his Honour at [6] were not in fact applied in this case.
20 In respect of the claim that the Tribunal took into account an irrelevant consideration, being the nature of the appellant's friend's death, I reject this submission. Whether his friend had been murdered or had committed suicide was clearly relevant to the determination whether the appellant's fear of persecution was well-founded. It was also relevant to the question whether the dispute claimed by the appellant involved conduct which amounted to persecution. It was a matter which properly formed part of the Tribunal's consideration and accordingly this ground cannot succeed.
21 The third ground raised by the appellant is that the Tribunal failed to find that the appellant was not afforded state protection. This is a challenge to a factual finding of the Tribunal, which could only be the subject of challenge if there was no evidence upon which the Tribunal could make that finding. In fact, the Tribunal had evidence that the police had taken action in respect of degree certificates which had previously been stolen from the appellant, allegedly by the wife's brother. There was no evidence before the Tribunal to suggest the appellant would be unable to access police protection. In these circumstances, the Tribunal was entitled to conclude that the appellant would be afforded state protection. In any event, even if it were accepted that state protection was inadequate, the Tribunal found that the appellant would be able to relocate within Tamil Nadu.
22 The appellant was at pains to point out that the Tribunal had misunderstood his claims. In fact, it appears that the Tribunal did not misunderstand those claims; rather, it was not satisfied that material before it gave rise to an entitlement to a protection visa. Those findings were factual findings and were open to the Tribunal on the evidence before it. This Court does not have the power to revisit factual findings in these circumstances.
23 For these reasons, I consider that the appeal should be dismissed with costs.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Cowdroy.