FEDERAL COURT OF AUSTRALIA

Modh v Minister for Immigration & Multicultural Affairs

[2000] FCA 1865

MIGRATION – test whether relocation not prevented by Convention reason is an error of law

Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525

Perampalan v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

RAHUL KUMAR MODH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1151 OF 2000

GYLES J

SYDNEY

18 DECEMBER 2000

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal made on 16 October 2000 be set aside and remitted to that Tribunal to be dealt with according to law.

2.                  Respondent pay costs of the applicant.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application for an order of review of a decision of the Refugee Review Tribunal (“the Tribunal”), which, on 16 October 2000, affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse an application for the grant of a protection visa.  The application as filed did not contain any particulars.  On about 8 December 2000 the respondent’s solicitor (and my associate) received from counsel, who had given some advice to the applicant, a proposed amended application and submissions.  The applicant, who appeared unrepresented, adopted what had been forwarded by counsel.  The respondent does not consent to the amendment proposed, but does not put forward any prejudice if it is granted.  In these somewhat unusual circumstances, I granted leave to amend the application in accordance with the draft included in MFI 1 and the argument proceeded on that footing.  I also indicated that I would have regard to the submissions which had been forwarded as, in effect, those of an amicus.  My acquiescence in what has occurred in this case should not be taken as any precedent for the future.

2                     The grounds of the amended application are as follows:

“1.       In making the decision the subject of this application, the procedures that were required by s 430 of the Migration Act 1958 (Cth) (“the Act”) to be observed in connection with the making of the decision were not observed, which constituted a reviewable error under s 476(1)(a) of the Act.

Particulars

(a)               The Tribunal failed to make a finding about whether the Applicant was unable to relocate to other parts of India because his father would require him to work in the family grain business.

(b)               The Tribunal failed to make a finding about whether there had been a sustained or systematic failure of state protection in relation to Muslim-Hindu clashes in the Applicant’s state, nor whether any lack of protection was such as to indicate that India was unable or unwilling to discharge its duty to establish and operate a system for protection against persecution.

2.                  The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law.

Particulars

(a)               The Tribunal, in considering whether the Applicant was able to relocate within India rejected his reasons for being unable to relocate (or some of them) on the basis that those reasons “do not link the applicant’s claim to the Convention”.  This involved an error of law.  It is not part of the test for whether a person can reasonably relocate that each reason that prevents such relocation is a Convention reason.

(b)               The Tribunal, in considering whether the Applicant had a well-founded fear of persecution, considered that his fear was not well-founded because there “is no reason the authorities will not offer the applicant the same protection they offer any other citizen of India”.  This is the wrong test.  It is not sufficient to find that the protection offered is offered on a non-discriminatory basis;  there must also be a positive finding that there are mechanisms capable of offering protection at all.”

It will be seen that there is a symmetry between the particulars of each ground. 

3                     The applicant, who is of the Hindu faith, fears that if he has to go back to his home in India he will be subject to violence between the Hindu and Muslim communities.  He comes from a town in Gujrab state where, apparently, the ratio of Hindu to Muslim is 50:50 and the police consist of representatives of each.  The applicant’s father is a prominent businessman, and a member of the Hindu community in his home town. 

relocation

4                     The Tribunal held that, even if the applicant’s claims are accepted:

“… even if rioting occurs in his home town other parts of India are relatively peaceful, especially for a person like the applicant who is part of the large Hindu majority in India.

Persons, like the applicant, who have the means to travel to Australia and are young, mobile, single, with work experience in Australia and healthy, can live in Mumbai, Calcutta, Delhi or other Indian destinations.  Such destinations are feasible, at least as temporary havens, until the tensions in the home town subside.  The applicant speaks Hindi, the language of the majority in India and some English as well as his regional language.  I am satisfied that he will not encounter serious harm for a Convention reason in living elsewhere in India.  He found work in Australia without apparent difficulty.  The applicant is educated and his qualifications are easily transportable in India.  He transferred university without difficulty and there is no Convention restriction of his ability to relocate to his new university town or any other place.  My findings are supported by the fact that when away from home as a student he did not encounter any difficulty in other parts of India.

The applicant claims he is not talented, has no work experience in India and that he has no money so it would be too difficult for him to set himself up in India.  The applicant claims he will be required by his father to work in the family grain business and this is a further reason he cannot relocate to another part of India.  However, these reasons do not link the applicant’s claim to the Convention.  I am satisfied that he will not encounter difficulty upon return to India for any Convention reason.

I am satisfied relocation is a reasonable and feasible option for the applicant.  I do not accept that he is at risk in every part of India or [sic] do I accept that the applicant will face persecution for a Convention reason should he relocate.  I am satisfied that any chance of harm if the applicant is away from his home town is remote.  I am satisfied that he would only come to harm in Hindu Muslim violence if he was in the wrong place at the wrong time and as such his fear of persecution is not well-founded.” (emphasis added)

5                     The applicant submits that the emphasised parts of the decision of the Tribunal reveal that it has required that the reason why the applicant cannot reasonably relocate be a reason relating to one of the five grounds of Convention protected persecution, and that this is wrong, referring to Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525 and the authorities referred to in it.  It is put that the Tribunal was required to make findings on whether the applicant had the financial and other resources to relocate within India, and whether he would be able to do so contrary to his father’s wishes regardless of any Convention persecution.  It is submitted that the failure to make these findings constitutes a breach of s 430 of the Act, and is therefore a reviewable error under s 476(1)(a) and also an error of law pursuant to s 476(1)(e) of the Act.

6                     The respondent does not challenge the legal basis for this submission and, indeed, counsel referred to a passage in Perampalan v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 at 284 to the same effect.  Rather, it was submitted that when the reasons of the Tribunal are considered as a whole and in a commonsense way (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272), the Tribunal had found:

(1)               that it was reasonable to relocate, taking into account the circumstances, and

(2)               that, having relocated, the applicant would not be likely to suffer Convention related persecution.

7                     Whilst there is something to be said for the submission made on behalf of the respondent, it seems to me that the emphasised parts of the decision, and particularly the sentence “However, these reasons do not link the applicant’s claim to the Convention”, appearing where it does, suggest that the Tribunal has conflated the two issues identified in the submissions on behalf of the Minister, and, consequently, did not address each separately.  In my opinion, this was an error of law within the meaning of s 476(1)(e) of the Act.  This makes it unnecessary to consider the argument that it was a breach of s 430 and therefore a reviewable error under s 476(1)(a).

state protection

8                     The reasons for the Tribunal, having dealt with relocation, proceeded as follows:

“It is not necessary for me to determine whether the applicant faces a real chance of persecution in some part of his country of origin because I am satisfied that he can relocate.  However I will discuss this issue briefly as it was raised in the hearing.”

9                     After reference to some authorities, the reasons continue:

“I am aware that it would be erroneous to suggest that communal violence, like that which occurs in India from time to time, which results in a general state of indiscriminate violence or general danger affecting a whole community, necessarily precludes the existence of persecution for a Convention reason.  However, I am satisfied that the applicant has no well founded fear of persecution for any Convention reason even in his home town.  I make this finding because it is clear from the applicant’s evidence that his father’s business operates successfully and police have acted in accordance with the law in relation to his family.  There is no reason the authorities will not offer the applicant the same protection they offer any other citizen of India.

I am satisfied that the applicant has no well founded fear of persecution in the sense of the Convention upon return to India.”

10                  Two issues arise out of this.  The first is the status of the finding, bearing in mind that the issue was said to be unnecessary to be determined, and was to be discussed briefly.  The second is whether (as submitted by the applicant) the Tribunal asked itself the wrong question, namely, whether the Indian authorities would offer the applicant the same protection as everyone else in India, without considering whether the Indian police, courts and other authorities are capable of offering any protection during the period of religious violence in issue.  It was put that the Tribunal should have considered the position of the applicant’s home state and determined whether the police and courts there had a reasonable willingness to protect, prosecute and punish offenders.

11                  In my opinion, the issue of State protection was not dealt with as a ground of decision.  This led to, as the Tribunal said, brief reasons being given which do not fully explore the issue.  In those circumstances, I would not draw any conclusions one way or the other as to whether the Tribunal did misdirect itself on an issue which it only discussed briefly.  The question has importance, because if I had been satisfied that the finding was an alternate ground of the decision, and if it were not affected by error, there would have been no proper basis upon which the matter should have been returned to the Tribunal for further consideration.  The error in relation to the issue of relocation would not have affected the final result.  That is not, however, the case.

conclusion

12                  I have been somewhat troubled as to whether, notwithstanding the error I have identified in dealing with the relocation issue, the decision ought to be set aside and remitted to the Tribunal for further consideration as it might be thought that a properly instructed Tribunal could only find that relocation was reasonable within the relevant principles in the circumstances here.  However, in my view, the applicant is entitled to have the matter considered by a Tribunal correctly addressing the separate questions for consideration, although I see no reason why that consideration should necessarily be by another Tribunal member.  I therefore order that the decision of the Refugee Review Tribunal made on 16 October 2000 be set aside and remitted to that Tribunal to be dealt with according to law.  The respondent should pay the costs of the applicant.

Associate:

Dated:              18 December 2000