VMOS v Minister for Immigration & Multicultural & Indigenous Affairs

Country information 5 In the course of its reasons for decision the Tribunal reviewed an extensive body of "country information" about the activities of Naxalites in India. This information was gleaned from an India "country report on Human Rights Practices for 1993" by the United States Department of State; 'The United States Department of State in 1993 reported on the nature of the conflict: 'Maoist revolutionary Naxalites in the states of Andhra Pradesh and Bihar targeted politicians, landlords and government officials in terrorist attacks. The Andhra Pradesh Civil Liberties Committee, in turn, charged the state government with killing (hundreds of) suspected Naxalites in faked 'encounters' .... In February 1993, the Naxalite People's War Group (PWG) assassinated the Additional Director of the Andhra Pradesh police academy in a daylight attack and killed several dozen other police and paramilitary personnel in ambushes and land mine attacks. The Maoist Communist Centre (MCC), a Naxalite group active in Central Bihar, operated a parallel judicial system that ordered summary executions of landlords and other 'class enemies'.' 6 Further "country information" referred to by the Tribunal included the following material; 'Followers of Hinduism represent around eighty percent of the Indian population ('India' The Far East and Australasia 1997 London, Europa Publications, 1996 p 341). Freedom of religion exists in India and all faiths generally enjoy freedom of worship. It is a secular state but the government 'sometimes does not act effectively to counter societal attacks against religious minorities and attempts by state and local governments to limit religious freedom. This failure results in part from the legal constraints inherent in the country's federal structure, and in part from the law enforcement and justice systems, which at times are ineffective. The ineffective investigation and prosecution of attacks on religious minorities is interpreted by some extremist elements as a signal that such violence likely is to go unpunished' (United States Bureau of Democracy, Human Rights and Labor International Religious Freedom Report 2002: India Washington DC, October 2002). There was a major confrontation between Hindus and Muslims in Ayodhya in October 1990. The conflict was about the location of an ancient Muslim mosque on the site where Hindus believed there had once been a Hindu temple. A number of people were killed there and in associated riots which broke out in several other cities in northern India. Muslims were the main victims of the violence. In December 1992, the mosque at Ayodhya was demolished by Hindu radicals and widespread rioting broke out, again leading to many deaths, largely of Muslims ('India' The Far East and Australasia 1997, cited above, p 314 - 316). 'The destruction of the mosque remains a raw wound in the Muslim psyche' ('Strange wooing' The Economist (US edition) 13 December 1997 CX34296). The Tribunal is aware of many more recent outbreaks of violence between Hindus and Muslims across India and understands that there are some hundreds of incidents each year. These sometimes lead to a cycle of retaliation (Hardgrave, Robert L 'India: the dilemmas of diversity' Journal of democracy Vol 4, No 4 October 1993 p 54 - 68).' 7 However, later country information also from the US Department of State, suggested that, by 1999, the Naxalites had themselves become targets of the police or groups condoned by the authorities. In this context the Tribunal noted in its reasons: 'Human rights groups allege that 'encounters' are usually faked by the police to cover up the torture and subsequent murder of Naxalite suspects, sympathisers or informers. Villagers in PWG-dominated areas complain of regular harassment and arbitrary detention by police. Police officials rarely if ever are held accountable for human rights abuses (United States Department of State India country report on human rights practices for 1998 Washington DC, February 1999, Section 1(a)).' 8 The Tribunal also reviewed information provided in a Department of Foreign Affairs and Trade cable suggesting that; 'Parts of the applicant's state of Andhra Pradesh have been described as a 'communally inflammable' area and there has been violence there between Hindu and Muslim groups on several occasions …' The Tribunal's conclusions and findings 9 The Tribunal summarised the applicant's case as follows; 'There are four elements in the applicant's fear of what might follow for him should he return to India: his fear of the Naxalites; of the implications for him of communal tensions; his fear of being pressed to repay money to people; and his fear of facing financial hardship and possible displacement should the state of Andhra Pradesh be broken up.' 10 The Tribunal discounted the applicant's evidence of his fear of the Naxalites observing, in particular, that; '… the applicant's assertions that the police help the Naxalites and do not protect people against them is not supported by independent information which states that the authorities take extreme action against Naxalites and anyone suspected of being so. I do not believe that people targeted by the Naxalites over a lengthy period to a degree which saw them lose all of their assets would not have sought the assistance of the police and would not have pursued further assistance if they had come across an officer unwilling to act against the Naxalites. … I do not accept that the applicant's account of his parents' action in relation to the police is credible. I have concluded that the applicant's family has not suffered at the hands of the Naxalites to the extent described by the applicant or at all. … I have considered independent information about Naxalite activity and the chance that the applicant could be targeted by them if he were to return to his family in India. I note that the Naxalites are reported to target police, landlords, local leaders and officials, politicians and suspected police informers. I do not consider that the profile of the applicant on return gives rise to a real chance that he would be a person of particular interest to the Naxalites.' 11 On the issue of inter-faith religious violence, the Tribunal found as follows; 'I accept that the applicant has been troubled by the tensions which exist between Hindus and Muslims and that he was beaten and harassed by some Muslims and told to keep away from particular areas. The evidence indicates, however, that the applicant was able to go about his life and that the problems between Hindus and Muslims occurred spasmodically. I do not consider that the harm the applicant claims to have experienced is of a character to constitute serious harm of the kind envisaged in s.91R of the Act: it may have been frightening but I do not consider that what he experienced was persecution as I am required to interpret the term. … There is considerable tension between religions in India and I understand why the applicant may fear that he or a member of his family could be harmed in the event of an outbreak of serious communal violence. The difficult relations between Hindus and Muslims will most probably continue as they have occurred for a very long time but I note that the United States Department of State has reported that relations between various religious groups are generally harmonious. I have concluded that the chance of the applicant being caught up in serious violence motivated by religious differences, and seriously harmed as a result, is remote. In reaching this conclusion I have had regard to advice from the Department of Foreign Affairs and Trade that the Indian authorities are willing and able to act to contain outbreaks of communal violence when they occur and to prosecute people who incite such violence. I have also considered efforts to promote interfaith understanding and so reduce the likelihood that communal violence will erupt. The Indian authorities do not encourage or condone religious intolerance or violence nor the type of behaviour feared by the applicant and I do not consider that the authorities are powerless to prevent it. As also relevant to the applicant's fear of the Naxalites, what the applicant claims to fear because of religious tensions lacks an 'official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of a person's country of nationality' which, as already stated, is necessary for conduct to be regarded as persecution within the meaning of the Refugees Convention.' 12 The Tribunal dealt as follows with the remaining issues raised before it by the applicant; 'The applicant told me at the hearing about his fear of being pressed to repay money to people who lent money to him for fees here in Australia and who have since returned home. He clearly is concerned about this because he does not have the funds to enable him to do so. I explained to the applicant at the hearing that what he described in relation to his debt was not a matter which could engage Australia's protection obligations. … The remaining elements of the applicant's fear of what might follow his return concerned facing financial hardship and possible displacement should the state of Andhra Pradesh be broken up. ... Again, I am not satisfied that what the applicant fears in this regard will be because of any of the reasons in the Refugees Convention and so what he could face cannot therefore constitute persecution. I also consider that the break-up of the state of Andhra Pradesh and the possibility that the applicant's family might have to relocate is very speculative and does not indicate that the applicant faces a real chance of persecution.' 13 The Tribunal member concluded; 'I am not satisfied from the evidence before me that there is a real chance that the applicant would face persecution because of his race, religion, membership of a particular social group, nationality or political opinion if he were to return to live in his home area in India. I therefore find that his fear of persecution there is not well-founded and that he is not a refugee. …' The basis of the present appeal 14 The applicant's essential ground of appeal is that the Tribunal failed correctly to apply the test of whether the applicant faced "serious harm" (or, in the alternative, asked itself a wrong question) by not considering the applicant's claims that he had been, in the Tribunal's language, "beaten and harassed a couple of times" by Muslims and told by them "that if they saw him again in the area he would be killed". Certainly, a threat to kill, if found by the Tribunal to be credible, is a threat of serious harm. However, to amount to persecution under the Convention, such a threat requires an official character or has to arise in a context where the authorities are incapable of preventing the infliction of death or serious injury. The Tribunal correctly applied this test when it said; 'I have concluded that the chance of the applicant being caught up in serious violence motivated by religious differences, and seriously harmed as a result, is remote. In reaching this conclusion I have had regard to advice from the Department of Foreign Affairs and Trade that the Indian authorities are willing and able to act to contain outbreaks of communal violence when they occur and to prosecute people who incite such violence. ... The Indian authorities do not encourage or condone religious intolerance or violence nor the type of behaviour feared by the applicant and I do not consider that the authorities are powerless to prevent it. As also relevant to the applicant's fear of the Naxalites, what the applicant claims to fear because of religious tensions lacks an 'official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of a person's country of nationality' which … is necessary for conduct to be regarded as persecution within the meaning of the Refugees Convention.' 15 It is apparent from its clear findings of fact that the Tribunal has considered the whole of the applicant's evidence, objectively assessed the situation in India and concluded that the applicant is not at real risk of suffering violence for a Convention reason. Moreover, it has found that such violence would not be officially sanctioned or tolerated and that the Indian authorities are not powerless to prevent it. I cannot detect in the Tribunal's reasons any failure properly to apply the test erected by s 91R of the Act. 16 The applicant contends the Tribunal fell into error by not expressly considering whether this particular claim was founded on a "a threat to the person's life or liberty" in terms of s 91R(2)(a). The short answer to this contention is that it is not sufficient that there be a threat to an applicant's life. Section 91R(2)(a) is merely an elaboration of s 91R(1) which requires, by par (c), that "the persecution involves systematic and discriminatory conduct". Here the Tribunal made the clearest of findings that the religious violence in the applicant's home state was not systematic in character, the chances of its affecting the applicant were "remote" and that it was not condoned by the authorities or beyond their power to prevent. The failure to refer again to the specific threat when assessing communal violence in the applicant's home state is manifestly not an error of law. If the Tribunal finds that there is no real chance that the threat will be carried out, it follows, self-evidently, that there can be no well-founded fear of persecution. 17 The Tribunal's decision is thus without legal error. Accordingly, issues of relief flowing from jurisdictional error as discussed in SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 and Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 do not arise. 18 For the reasons given above, the application must be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Counsel for the Applicant: Ms S Moore (Pro Bono)

Solicitor for the Respondent: Blake Dawson Waldron