W404/01A OF 2002 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia (Full Court)|2003-11-14|Before: Carr JJ, French J

introduction 2 This is an appeal from orders made by a judge of this Court dismissing an application for an order of review of a decision of the Refugee Review Tribunal made on 20 August 2001. The Tribunal affirmed a decision, made on 8 June 2001, not to grant to the appellant a protection visa. The application was filed in this Court on 31 August 2001 i.e. before the amendments made to the Migration Act 1958 (Cth) ("the Act") by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) which applied from 2 October 2001.

factual background 3 The appellant is a citizen of India who was born on 10 July 1963 in Jammu and Kashmir, the Indian-controlled portion of the disputed region of Kashmir. He is a Sunni Muslim. The appellant lived in Jammu and Kashmir from the time of his birth until December 1997. After completing his formal education in 1975 and until December 1997 the appellant worked as a farmer on land owned by his family. In December 1997 the appellant travelled to the Pakistani-controlled area of Kashmir, known as Azad Kashmir where he remained until December 2000. He married a Pakistani citizen on 8 October 1998. During that three year period the appellant continued to work as an employed farmer. His wife's family owned farmlands, but he was employed elsewhere. 4 The appellant's claims were, in summary, as follows: · fighting had come to his area (Jammu and Kashmir) in 1993; · in 1996 his brother, who had been an active member of the Jammu and Kashmir Liberation Front - ("the JKLF") since 1988, was killed by Indian forces; · between 1993 and December 1997 the appellant had been arrested by the Indian army, interrogated, beaten and then released about 20 times; · after he had travelled to Pakistan, the Inter-Services Intelligence Organisation ("the ISI") had been about to recruit him for training and subsequent service in the war against the Indian army in Kashmir. His "training number" had not come up. His induction into training had been postponed by his marriage and the fact that his wife was due to give birth to their first child in January 2001; · he could not relocate to anywhere in Pakistan because the ISI would either send him back for training and fighting in Kashmir or "would simply finish him off"; and · he could not relocate in India because, as a Kashmiri, he would be perceived as a traitor elsewhere in India and would be subjected to persecution, and furthermore, as a Muslim, and especially as a Kashmiri Muslim, he would be subject to violence from non-Muslims.

the Tribunal's decision 5 The Tribunal decided the matter on the basis of considering whether it would be reasonable in all the circumstances to expect the appellant to relocate to some other part of India. It also considered whether the appellant had effective protection in Pakistan. In our view, the Tribunal did not make a finding about whether the appellant had a well-founded fear of persecution for a Convention reason. It seems to have based its reasoning on an assumption that he did. 6 On the basis of independent country information, the Tribunal found that the Indian Government did not, as the appellant had suggested, encourage or tacitly accept attacks by Hindus on Muslims in India. It noted that some 12 per cent of the Indian population was Muslim and that when communal violence occurs, the Indian authorities seek to end it at the earliest opportunity. It preferred the advice of the Department of Foreign Affairs and Trade to that effect to the extent of any inconsistent evidence from the appellant. The Tribunal considered that the Indian Government would provide the appellant, as a Muslim, with the same degree of protection as that accorded to any other Indian citizen and with a level of protection sufficient to remove a real chance of persecution in the context of the periodic outbreaks of communal violence in India. It rejected the appellant's assertion that Kashmiri refugees in India would be regarded by the Indian Government as traitors. On the question of the appellant's ability to survive, the Tribunal said this: 'Although the Applicant is not well-educated, he is literate and he has skills as a farm labourer which enabled him to relocate successfully to Azad Kashmir. I consider, therefore, that it would be reasonable in all the circumstances of the present case to expect the Applicant to relocate from Jammu and Kashmir to one of the Muslim communities elsewhere in India.' 7 The Tribunal rejected the appellant's submission that he was perceived as a Kashmiri separatist by reason of his brother's involvement in the JKLF. It considered that his experiences of detention, interrogation and release were because of the perception (as initially put forward by the appellant) held by the Indian army that every young Kashmiri living in the hilly areas was a traitor, rather than because of any perception of the appellant's political opinion based on his brother's involvement in the JKLF. Accordingly, the Tribunal rejected the appellant's claim that he had a well-founded fear of being persecuted by reason of any political opinion imputed to him as a result of his brother's involvement in the JKLF if he were returned to India now or in the reasonably foreseeable future. The Tribunal noted that the appellant's parents, his two younger brothers and his sister continued to reside in Jammu and Kashmir. 8 Although it was not obliged to do so, the Tribunal then considered whether Pakistan was able to offer the appellant effective protection. It concluded that he would have effective protection in Pakistan for the following reasons. First, there was not a real chance that he would be forcibly recruited by the ISI. The Tribunal noted independent evidence to the effect that militant groups sponsored by Pakistan have no difficulty in recruiting Islamic fanatics. Secondly, there was no independent evidence that Kashmiris were perceived as a political threat by the Pakistan Government. Thirdly, the appellant was the husband of a citizen of Pakistan. Finally, there was no real chance that Pakistan would return the appellant to India.

The judgment at first instance 9 The appellant was not legally represented at first instance. The learned primary judge gave careful consideration to all the matters advanced by the appellant. His Honour found that none of those matters raised any basis for judicial review. In essence, the appellant had sought to argue the merits of his case.

the appeal 10 The appellant was represented in the appeal, on a pro bono publico basis, by Mr C P Shanahan, a barrister. We acknowledge Mr Shanahan's selfless efforts in redrawing the notice of appeal, preparing detailed submissions and appearing at the hearing of this appeal. 11 In essence, the appellant contended that the Tribunal had fallen into jurisdictional error. The amended notice of appeal contained four grounds. A theme common to the first three grounds was that the Tribunal had failed to consider the likely fate of Kashmiri Muslims relocating elsewhere in India.

GROUND 1 12 Ground 1, which alleged an error of law on the part of the Tribunal and, in turn, by the primary judge, is based on the following passage in the Tribunal's reasons: 'The Australian Department of Foreign Affairs and Trade has advised that generally speaking there would be no problems for Muslims relocating within India although consideration would need to be given to such issues as ethnicity, language and work skills.' [For completeness, this paragraph continued as follows:] 'It has said that there are Muslim communities in many parts of the country and well-educated and readily employable applicants could relocate to another part of India.' [two DFAT sources cited] 13 The error of law was said to be that the Tribunal should have conducted an investigation of the appellant's "ethnicity, language and work skills". In oral argument, Mr Shanahan submitted that the Tribunal had not considered the situation of Kashmiri Muslims relocating in India. Any such investigation, so it was asserted, required that these matters be put to the appellant individually and cumulatively.

OUR reasoning in relation to ground 1 14 The passage quoted above from the Tribunal's published reasons was in a section headed "Background" which preceded a section which was headed "Findings and Reasons for Decision". 15 However, the two sources of DFAT information were referred to once again in the latter section. At that point the Tribunal can be seen to have weighed up: · the appellant's reference to the problem of communal violence in India; · his suggestion that the Indian Government had not taken action against those responsible for violence against Muslims or Christians; and · his statement that it was not possible for Muslims, living in large communities throughout India, to protect newcomers from attacks by Hindus. 16 As against those claims, the Tribunal put to the appellant the information from the Australian Department of Foreign Affairs and Trade ("DFAT") that the Indian Government could not be said to be orchestrating outbreaks of communal violence, that when communal violence occurred, the Indian authorities seek to end it at the earliest opportunity and (on the next page of its reasons) the Tribunal's rejection of the proposition that the Indian Government was unwilling to prosecute Hindus responsible for attacks on Muslims. 17 The Tribunal stated that it preferred the advice of the DFAT and concluded in the following terms: 'I consider that the Indian Government will provide the Applicant, as a Muslim, with the same degree of protection as that accorded to any other Indian citizen and with a level of protection sufficient to remove a real chance of persecution in the context of the periodic outbreaks of communal violence in India.' 18 The Tribunal specifically considered the appellant's employment prospects in the paragraph which we have set out at [6] above. 19 The appellant complained that the Tribunal had relied on a cable from DFAT (Cable ND84486) dated 6 July 1992 and a country information report (No. 83/00) from DFAT dated 25 February 2000 without carrying out the processes to which we have referred at paragraph [13] above. In oral argument the complaint was expanded somewhat. The appellant submitted that if the Tribunal was going to accept country information it must apply it in its entirety unless it found that portion of it was outdated or had no utility or was irrelevant. 20 But the Tribunal can also be seen to have relied upon information in DFAT Cable ND9681, dated 8 July 1998 to the effect that although communal violence occurred in India, the Indian authorities sought to end it at the earliest opportunity. At p 17 of its reasons the Tribunal expressly stated that it preferred the advice of DFAT on this point to the evidence of the appellant, to the extent of any inconsistency. 21 At page 18 the Tribunal dealt with the question of the safety of Muslims in India. It also considered the position of Kashmiris in India. It then reached its conclusion that it was reasonable to expect the appellant to relocate to one of the Muslim communities elsewhere in India. The appellant complained that there was no reference to Kashmiri Muslims in this context. But, in our opinion, it can be seen that the Tribunal paid specific and express regard at this stage of its reasoning to the fact that the appellant was Kashmiri. It was well aware that he was a Kashmiri Muslim. 22 The Tribunal's findings were a combined set of findings that the Indian Government would provide the appellant with the same degree of protection as that accorded to any other Indian citizen sufficient to remove a real chance of persecution, that the Indian Government did not regard all Kashmiris as traitors or being against it, and that the appellant could relocate. 23 In our view, it was clearly open to the Tribunal to make the above findings. It did not err in law in the manner asserted in Ground 1 and nor did the primary judge err in rejecting that claim at first instance. The Tribunal can be seen to have asked the right questions and, on the basis of evidence which it chose to accept, to have answered those questions.

GROUND 2 24 In this ground, as we read the amended notice of appeal, the appellant challenged the Tribunal's conclusion which we have set out at paragraph [17] above concerning the degree of protection which the Indian Government would provide to the appellant as a Muslim. The Tribunal, so it was contended, had ignored the appellant's evidence to it. It had also erred in relying upon DFAT Cable ND9681 in which there was advice that persons considered to be inciting communal violence can be prosecuted under Indian law (emphasis added). This was not equivalent to information that they are prosecuted. The Tribunal's conclusion about the level of governmental protection was said to be "… a finding unsupported by any evidence" [Ground 2B].

OUR reasoning in relation to ground 2 25 Once again, in our opinion, this ground does not raise either jurisdictional error or other error of law. The appellant's submission that the Tribunal's finding was unsupported by any evidence is quite clearly incorrect, given the extensive reference by the Tribunal to the DFAT information upon which it relied. A fair reading of the Tribunal's reasons shows that it weighed up the appellant's evidence, but chose to accept the DFAT information about relocation in India. In our opinion, this ground has not been made out.

GROUND 3 26 In this ground the appellant asserted that the primary judge erred in law by accepting that: · the Tribunal had reached the conclusion that there were Muslim communities relocating in India and had, by that reason, clearly indicated by implication that it was referring to Kashmiri Muslims; and · had done so on evidence before it that the conduct by communities in India towards Muslims did not constitute persecution. 27 The appellant complained that there was no basis in law for the first of the above implications, being an implication which ignored both the country information, further country information supplied to the Tribunal and the appellant's evidence. 28 Nor, so the appellant submitted, did the Tribunal reach the second of its implied conclusions referred to above, which, so it was asserted, was inconsistent with the Tribunal's acceptance that the appellant would face a real chance of persecution for a Convention reason if he returned to the Jammu and Kashmir region.

OUR reasoning in relation to ground 3 29 In relation to the second aspect of these contentions, we see no such inconsistency. The Tribunal can be seen to have worked on an assumption that the appellant had a well-founded fear of persecution if returned to Jammu and Kashmir. It then turned to the question of the reasonableness of expecting the appellant to relocate elsewhere in India. 30 As to the assertion that the Tribunal ignored relevant country information, we reject it. A fair reading of the Tribunal's reasons makes it clear that it chose to accept the information from DFAT over the assertions and information put forward by and on behalf of the appellant. 31 In our view, by this ground the appellant is seeking to argue the merits of the matter before the Tribunal.

GROUND 4 32 Strictly speaking, in view of our conclusion that there was no reviewable error on the Tribunal's part in its treatment of the issue of reasonable relocation within India, there is no need to consider Ground 4. Ground 4 is concerned with the question of effective protection in Pakistan. But we shall consider Ground 4 briefly. 33 The essence of the appellant's argument in relation to Ground 4 was that the Tribunal's reasoning was illogical i.e. that because the Pakistanis had no need to recruit as there were many fanatics willing to join the forces against India, they would not need to recruit people like the appellant who had no wish to fight. The illogicality alleged was to conclude that because Pakistani authorities can recruit Islamic fanatics, they will not recruit others. This was said to amount to reliance upon an irrelevant consideration. 34 Secondly, the appellant contended that the Tribunal had failed to take into account his relationship with his wife when it relied upon the proposition that he could move freely within Pakistan. The appellant submitted that the Tribunal had assumed that he would either desert his wife or that if he moved with her elsewhere in Pakistan the move would not be known to Pakistani authorities or he would not be pursued. The Tribunal had made findings of fact without reference to such matters and had ignored relevant material raised by the appellant. 35 We would reject Ground 4 for the following reasons. First, we doubt whether the Tribunal's reasoning can be regarded as illogical. It chose to assess the availability of Islamic fanatics as reducing the likelihood of the appellant being drafted compulsorily into anti-Indian forces. Even if this reasoning were illogical, the authorities show that this is not in itself a ground of review, though it may on occasion manifest other reviewable error: see, for example, Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30. 36 Furthermore, if the Tribunal erred in relying upon the fact that militant groups sponsored by Pakistan have no difficulty recruiting Islamic fanatics this could not, in our opinion, be properly described as an irrelevant consideration. We do not think that the Tribunal fell into jurisdictional error or other reviewable error by taking that matter into account. There was independent evidence about this matter. Once again the Tribunal expressly chose to prefer that evidence to the appellant's evidence. 37 We do not think that the Tribunal fell into any reviewable error when it referred to the fact that the appellant could have gone to any part of Pakistan. The Tribunal did not, in our view, make any of the assumptions of which the appellant complains. It simply refused to accept, for reasons which it had earlier given, that the Pakistan ISI had any interest in forcibly recruiting persons like the appellant. In our view, Ground 4 has not been made out.

Conclusion 38 For the foregoing reasons we would dismiss the appeal with costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of Justices Lee and Carr.

Solicitor for the Respondent: Australian Government Solicitor

Migration Legislation Amendment (Judicial Review) Act 2001(Cth)

At a glance

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Before

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Judgment (14 paragraphs)

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Legislation Cited (2)

Cases Cited (1)