FEDERAL COURT OF AUSTRALIA

Sowrimuthu v Minister for Immigration & Multicultural Affairs [2001] FCA  300

IMMIGRATION – refugee – application for review of decision of Refugee Review Tribunal affirming decision to refuse a protection visa – applicant claiming to be Roman Catholic Indian fearing persecution for reason of religion – whether Tribunal properly understood and addressed claim – whether fear was of persecution by “distant relatives” who were “Naxalites” or by Naxalites generally – whether Tribunal had addressed question whether effective protection was available from Indian authorities.

Migration Act 1958 (Cth) s 476(1)(a), (e), (g)

Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 (FC) referred to

Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 (FC) referred to

Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95 (FC) discussed

A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545 discussed

Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1657 doubted

Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469 applied

ROBERT KENNEDY SOWRIMUTHU v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1286 OF 2000

LINDGREN J

23 MARCH 2001

SYDNEY

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.                  The applicant pay the respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     Section 29 of the Migration Act 1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to do one or both of the following:

(a)                travel to and enter Australia;

(b)               remain in Australia.

2                     The applicant (“Mr Sowrimuthu”) applies under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“RRT”) affirming a decision of the Minister’s delegate (“the Delegate”) not to grant him a protection visa permitting him to remain in Australia.  It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.

3                     Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa.  The validity of Mr Sowrimuthu’s application for the protection visa is not in question.  One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied.  Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as “amended” by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, “the Convention”).  Australia is a party to the Convention.

4                     Article 1A(2) of the Convention provides that a refugee is 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 is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5                     Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6                     The RRT’s decision was a “judicially reviewable decision” (par 475(1)(b) of the Act); the Applicant was entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction with respect to it (ss 485, 486).

7                     Mr Sowrimuthu’s case is that he is outside the country of his nationality, India, and is unwilling to return to it because of a well-founded fear of being persecuted for reason of religion.

Procedural background

8                     Mr Sowrimuthu arrived in Australia on 26 June 2000 and was taken into immigration detention.  On 4 July 2000 he lodged an application dated 3 July 2000 for a protection visa (visa sub-class 866). The application was supported by a four-page typewritten statement by Mr Sowrimuthu dated 4 July 2000.  Craddock Murray & Neumann, solicitors, acted for Mr Sowrimuthu and wrote letters dated 14 and 26 July to the Department of Immigration and Multicultural Affairs (“the Department”) making submissions on behalf of their client in support of his application.  The Delegate refused the application on 11 September 2000.  On 13 September 2000, Mr Sowrimuthu, lodged with the RRT an application for review of the Delegate’s decision.  Craddock Murray & Neumann made a written submission to the RRT dated 6 October 2000 and the RRT conducted a hearing on 11 October 2000.  After the hearing, Craddock Murray & Neumann made supplementary written submissions on behalf of their client.  On 21 November 2000 the RRT affirmed the Delegate’s decision.  On 1 December 2000 Mr Sowrimuthu filed his application in this Court for review of the RRT’s decision and on 7 March 2001 he filed in Court an amended application.

The reasons for decision of the RRT

9                     The RRT’s reasons for decision summarised Mr Sowrimuthu’s claims and evidence and separately made its findings and gave reasons for its decision.  The case presented peculiar difficulties because of Mr Sowrimuthu’s loss of memory.

Claims and evidence before the RRT

10                  The RRT summarised Mr Sowrimuthu’s claims and evidence under the headings “Airport Interview”, “Application”, “Departmental Decision”, “The Tribunal Hearing”, “Post-Hearing Submissions, etc.” and “Independent evidence – Naxalites”.  I need not attempt so detailed a summary.

11                  In order to understand what follows, it is useful to know, as the RRT recorded (based on documentary reports), that the “People’s War Group of Naxalites” are generally identified as extreme leftist activists:

·        who violently protest against the current socio-economic order;

·        who often target political leaders, law enforcement authorities, landowners and public servants;

·        who are active across large tracts of forest straddling the states of Andhra Pradesh, Madhya Pradesh, Orissa and Maharashtah; and

·        whose name is derived from the Indian town of Naxalbari, where their movement began decades ago.

12                  Mr Sowrimuthu arrived at Sydney airport on a flight referred to as “unknown” and without documentation on 26 June 2000, and requested Australia’s protection.  He claimed to be married to an Australian citizen but because of medical problems had lost his memory and did not remember his wife’s family name.  He said he had suffered head injuries during a beating by distant relatives and had been hospitalised for two months.  He said he went by boat to Colombo where he met a man who arranged documentation for him to travel from London to Australia.  He said his documents had disappeared.

13                  These claims made in the airport interview were elaborated upon in a four-page typed statement dated 4 July 2000 by a Mr Sowrimuthu in support of his application for the protection visa.  At the heart of Mr Sowrimuthu’s application to this Court is his contention that the RRT misapprehended, and therefore did not address, the true nature of his claim.  In summary, the submission is that the RRT addressed a claim of past persecution and a fear of future persecution on ground of religion, by Naxalites in general, whereas in truth Mr Sowrimuthu’s claim was, or included, one of past persecution and a fear of future persecution on ground of religion, by distant relatives who happened in fact to be Naxalites. 

14                  In view of the importance that this submission attaches to the claim Mr Sowrimuthu in fact made, I will set out in full pars 1-8 of his statement:

“1.      I have problems remembering many things.  I do not remember many things that happened to me before April 2000.  For example I am not even sure if I am married. My mother told me that I was married and that I lived overseas but I do not remember being married.  I only know my date of birth because it is stated on my birth certificate and I have my birth certificate at Villawood.  The reason I do not remember is that I was badly tortured by a group of distant relatives who belonged to a group of naxalites.  I was in the hospital for two months.

2.         I was born in India on 25 December 1975 and I am aged 24 years.  I am a citizen of India.  I completed my Bachelor degree in Business administration at Madras University.

3.         My father is a Sri Lankan Hindu and my mother is an Indian Roman Catholic.  They got married and settle in Sri Lanka.

4.         At the time of the war in Sri Lanka between LTTE and Sri Lankan army, they came to Chennai as a refugee.  I do not remember when they came to India and how long they lived over there.  I belonged to a minority religion and most backward class.

5.         My parents told me that I was in abroad for three years and I came to see my parents in February 2000.  My parents asked me to marry a girl from my distant relatives, since the distant relatives compelled my parents.  But I said to them that I got married in abroad. This made my distant relatives upset and angry. They came and assaulted me with arms. Their motive was to force me to marry a Hindu girl and to convert me into Hinduism. By doing these they decided to take me into their armed group. The object of the group was to revolt against Christianity and involuntary conversion in India.

6.         My parents said that my mother is a Christian and my father was a Hindu he was converted into Christianity after his marriage.  My distant relatives did not like this conversion.  Therefore the relatives forced me to marry a girl from their side in order to convert me into Hindu religion.  Their final motive was to make me a member of the Naxalite group.

7.                  My parents said that since I was only the son in my family, the Naxalite groups wanted me to convert into Hindu religion or else is to put end to my family by killing me.

8.                  My parents said that they attacked and stolen all my goods including my passport which I brought from abroad.  They attacked me all over my body especially on my head.  This took place at my home.  They also attacked my parents and destroyed our home, I was then admitted in Apollo hospital in Chennai.” (my emphasis)

Mr Sowrimuthu’s statement continued by referring to his loss of memory and his inability to remember what had happened to him in his life, as a result of his “severe torture”.  He said he still bore “marks and scars all over [his] body”. 

15                  He said that after he was discharged from the hospital in Chennai, he searched for, but could not find, his parents, and so returned to the hospital.  A priest and hospital staff took him to a “hut house near the beach to see [his] parents”.  He said his parents told him that his “life was in danger at the hands of the Naxalite groups” and that if they ascertained his whereabouts they would kill him.

16                  Mr Sowrimuthu’s parents told him he had been overseas but could not tell him in which country he had “lived longer”.  His statement continued:

“My parents wanted me out of India to save my life from the Naxalite terrorist groups.  My parents or I did not complain to the police due to a fear of retaliation by the Naxalite groups.” (my emphasis)

17                  According to Mr Sowrimuthu’s statement, his mother sold jewels to raise money to send him out of India, he went by ship to the northern part of Sri Lanka then travelled to Colombo by bus and looked for and found an agent who could assist him to reach a foreign country.  He told the agent he wished to travel to London, Australia and New Zealand (according to his statement, his parents had told him that he had been to those countries previously).  Mr Sowrimuthu said he paid US$2,000 to the agent who accompanied him to London, but Mr Sowrimuthu did not know anything of the passport which was used for the purpose.  He said he decided to travel to New Zealand via Australia “to find out [his] past”. 

18                  On arrival at Sydney airport, the agent asked him whether he was familiar with the place and Mr Sowrimuthu replied “yes”.  He said the two of them sat in the transfer hall at the airport, and after a while the agent said he wanted to go to the toilet and “disappeared”.  Mr Sowrimuthu “became upset and was crying”.  An officer asked him why he was waiting so long at the airport and asked for his passport.  Then he was interviewed for some two hours with the assistance of an interpreter and was taken to the Villawood Detention Centre, where he has remained since.

19                  Mr Sowrimuthu’s statement concluded with paragraphs 19 and 20 as follows:

“19.    I fear that if I am forced to return to India my life will be in danger at the hands of the Naxalite groups.  Because I could not meet the demand of the Naxalite armed groups.  I could not relocate in other part of India due to fear of Naxalites who are in active all over in India.  I cannot speak Hindi language that is a communicative language other than my own State.

20.       I am seeking your medical assistance because I have been suffering from a sever headache since my head injuries.  Especially, whenever I think about my past I get a severe headache.  I am worried about my health condition that may affect my current memory in my day to day life.” (my emphasis)

20                  In the course of the hearing before the RRT, Mr Sowrimuthu’s claims were explored and tested.  For example, the RRT put to him that his account of his journey to Sri Lanka lacked credibility because the sea voyage from Chennai to Jaffna, a distance of some 400 kilometres, would have taken much longer in a small fishing boat than the six or so hours Mr Sowrimuthu had claimed.  It was also put to him that there was no bus route from Jaffna to Colombo and that no land route between Jaffna and Colombo had been open during the year 2000.  Mr Sowrimuthu insisted that he had travelled by land across Sri Lanka and had receipts for expenditures and some addresses of places where he had stayed which he undertook to submit to the RRT.  Notwithstanding further opportunity given him by the RRT for this purpose, he has never provided that documentary evidence.

21                  Mr Sowrimuthu did, however, submit reports on MRI and CT scans on his brain performed on him at the Apollo hospital in Chennai in February 2000.  These showed multiple haemorrhagic contusions, a thin rim of subdural haematoma in both temporal regions and an arachnoid cyst in the anterior temporal region.  He also supplied a photocopy of a birth certificate in his name showing that he was born on 25 December 1975 and that his mother and father were Indian and were living at an address in Chennai at the time of his birth.

Findings and reasons of the RRT

22                  The RRT found Mr Sowrimuthu’s claims to be “often contradictory and confused”, but said that it had taken into account evidence from a clinical psychologist that Mr Sowrimuthu had:

“short-term and intermediate memory problems, and¼patches in his long-term memory, possibly because of a ‘blocking’ of memory due to intense emotional trauma or to post concussion.”

Indeed, the RRT noted that the medical evidence from the Apollo hospital in Chennai of February 2000 appeared to confirm the clinical psychologist’s assessment.

23                  The RRT considered, however, that the remainder of the evidence submitted by Mr Sowrimuthu did not support his claims.  He had claimed to have been able to enter Sri Lanka because his parents were from there and because he had a birth certificate recording him as having been born there, but the copy birth certificate produced in fact stated that he had been born in Chennai and that his parents were citizens of India.  (It is not clear when, if at all, Mr Sowrimuthu claimed to have been born in Sri Lanka – in the form of application for protection visa and in his typewritten statement in support of that application he claimed to have been born in India, but no doubt it is possible he claimed in the hearing before the RRT to have been born in Sri Lanka.)

24                  As noted earlier, the RRT found his account of his journeying implausible.  In a passage attacked by counsel for Mr Sowrimuthu, the RRT stated as follows:

“The applicant was able to provide only scant detail of the family situation which he claimed had placed him in danger of persecution by Naxalites.  He stated at hearing that he only knew what his parents had been able to tell him in the two hours he had with them before leaving for Sri Lanka.  There is no evidence before the Tribunal that the so-called Naxalites are motivated by religious bigotry, nor that they are active in the Chennai region, as the applicant has claimed, but rather that they target landowners and government authorities.  Furthermore, [documentary evidence before the RRT] indicates that the Indian authorities in all the States where Naxalites are active are committed to providing their citizens with effective protection.  While it might be plausible that the applicant and his family were targeted by a “Naxalite” group, the Tribunal does not have evidence from which it could infer a Convention nexus.  It was evident at his hearing that the applicant had a very good command of English, indicating that he had a good education, and the Apollo Hospital’s web-site shows it to be one of the best and doubtless expensive hospitals in the country.  It is possible, therefore, that the family might have been subject to extortion, but the applicant was unable to provide any relevant details.”

25                  The RRT next turned its attention to the question of protection available to Mr Sowrimuthu in India.  The RRT accepted that Mr Sowrimuthu was a Roman Catholic.  After referring to certain country information, it found that while there is anti-Christian violence in India, the Central and State governments have taken “appropriate” action against its perpetrators.  The RRT stated:

“Should the applicant fear persecution for reason of his religion, he would have recourse to the protection of the State.”

26                  The RRT then expressed its conclusion as being that while it sympathised with Mr Sowrimuthu’s “plight”, it was unable on the evidence before it to find that he had a well-founded fear for a Convention reason.

Grounds of amended application

27                  Mr Sowrimuthu relied on the following three grounds permitted by pars 476(1)(e), (a) and (g), respectively, of the Act:

“1.      The Tribunal erred in law, being an error in the interpretation of the law, or in the application of the law to the facts as found.

Particulars

a.                      The Tribunal failed to address the applicant’s case, that being that he was assaulted by distant relatives who had joined a group generically known as “naxalites”, that these relatives resented his marriage to a foreign woman, wanted him to marry a Hindu and force him to convert from Catholicism to Christianity.

b.                      The Tribunal failed to consider the possibility of there being multiple effective causes to the harm feared.

c.                       The Tribunal failed to address the issue of whether the Indian authorities could provide sufficient protection to this applicant to allay a well founded fear of persecution in India.

2.         The Tribunal failed to observe procedures which were required by the Migration Act to be observed.

Particulars

a.                      The Tribunal failed to make a finding on a material question of fact, being as to whether distant relatives of the applicant assaulted him with the motive of forcing him to marry a Hindu and convert to Hinduism.

3.         There was no evidence or other material to justify the making of the decision.

Particulars

a.         The Tribunal based the decision on a fact, being that there is ‘no evidence before the Tribunal that the so called Naxalites are motivated by religious bigotry¼’ and that fact did not exist.”

Reasoning on the present application

28                  Counsel for Mr Sowrimuthu said that the case involved two major issues: whether the RRT had failed to address the specific fear his client claimed to have; and whether it failed to make a finding as to whether his claimed fear of persecution for reason of religion was well-founded, in the light of the availability or non-availability of effective protection.  I will, however, structure the following reasons by reference to the grounds stated in Mr Sowrimuthu’s amended application.

The first ground relied on – error of law – failure to address Mr Sowrimuthu’s case, to consider the possibility of multiple causes and to address the issue of the sufficiency of protection available from the Indian authorities

(a)        Failure to address Mr Sowrimuthu’s case

29                  Counsel for Mr Sowrimuthu submits that the RRT failed to address his client’s “specific claims” which counsel described as follows:

“That he had been specifically targeted by distant relatives who resented his father’s conversion from Hinduism to Catholicism and were trying to force a marriage upon him to, amongst other things, convert him to Hinduism.”

According to counsel, the issue the RRT was required to address was not the one addressed by the RRT, whether Naxalite groups, in general, are motivated by religious bigotry and attempt to force conversion to Hinduism, but rather whether the “distant relatives”, who happened to be connected with a Naxalite group and may have had mixed motives, had done so.  Counsel submitted:

“This issue having been raised was required to be addressed by the Tribunal in the exercise of its jurisdiction and in its obligation to review the decision of the delegate pursuant to s 414 [of the] Act.”

Section 414 of the Act provides, relevantly, that the RRT must “review” the RRT-reviewable decision in question.  For the proposition that relief may be available where the RRT fails to address a claim, counsel for Mr Sowrimuthu referred to Thevendram v Minister for Immigration & Multicultural Affairs [1999] FCA 182 (FC) (“Thevendram”); Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 (FC) (“Sellamuthu”) at 290-293; Minister for Immigration & Multicultural Affairs v Sarrazola (1999) 95 FCR 517 (FC) (“Sarrazola”); Minister for Immigration & Multicultural Affairs v Sameh [2000] FCA 578 (FC) (“Sameh”) at [34]-[42] and Minister for Immigration & Multicultural Affairs v Rajadurai [2000] FCA 1671 (FC) (“Rajadurai”) at [12], and to various single Judge decisions.

30                  It is established by Full Court authority that “the RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all the material and evidence before it and make findings on all the material questions of fact raised by that material and evidence”: Thevendram at [37].  In Thevendram, the Court concluded that the RRT had failed to address a family harassment claim which was a “substantial issue” on which the case might turn.  The Court said that the family harassment claim was an issue of that kind because if it had been dealt with and accepted, it was “capable of supporting in a significant way ‘the factual centrepiece’ of Mr Thevendram’s claim of feared political persecution and thus was a material question of fact” (at [34]).

31                  Similarly, in Sellamuthu the Full Court concluded that the RRT had not applied itself to all substantial matters which might bear on the question whether the applicant was a refugee, and observed that “all the substantial claims, and information in support of them, put forward by the applicant must be considered” (at [19] per Wilcox and Madgwick JJ).  Also, in Rajadurai the Full Court held that the RRT errs if it does not deal with a claim that is central to the application for the protection visa (at [12]-[14]).  For a useful discussion and illustration of the requirement, see Sameh at [40]-[43].

32                  It is a sufficient answer to Mr Sowrimuthu’s first submission to say that in my opinion the RRT did address the claim he made.  Naturally, the terms in which his claim was made were not identical every time he made it, and it is no failure of the RRT for it not to address every way in which he did so from time to time.  Rather, the question is one of substance.  The substance of the matter was that Mr Sowrimuthu claimed to have a well-founded fear that he, a Roman Catholic, would be persecuted by Naxalites because he was not a Hindu.  In order to show that his fear was well-founded, Mr Sowrimuthu relied on his past.  The alleged activity of the distant relatives explained the genesis of the alleged Naxalite persecution, but the essential claim with which the RRT had to deal was one of fear of persecution by Naxalite groups.

33                  Mr Sowrimuthu’s present submission is a difficult one for him to make. If it were that his unaddressed claim was simply that his distant relatives beat him because he was Roman Catholic, not Hindu, and refused to marry a Hindu girl, the claimed fear might not have raised a Convention ground, or, if it had, his alleged fear might not have been well-founded because of the possibility of his relocation within India, and of the availability of governmental protection to safeguard him from the distant relatives.  If, on the other hand, his claimed fear was that “Naxalites” would persecute him for reason of religion, the claim, while clearly Convention-based and not so obviously difficult in respect of the protection issue, was in fact addressed by the RRT.

34                  It is useful to consider the various ways in which the claim of persecution for reason of religion was made by or on behalf of Mr Sowrimuthu.

35                  First, I set out earlier extracts from his statement dated 4 July 2000.  He claimed there

·        that his distant relatives wished him to marry a Hindu girl and then convert to Hinduism and become a member of “their armed [Naxalite] group”;

·        that “[t]he object of the group was to revolt against Christianity and involuntary conversion in India”;

·        that “the Naxalite groups wanted [him] to convert into Hindu religion”;

·        that his “life was in danger at the hands of the Naxalite groups”;

·        that his parents wanted him out of India to save his life from “the Naxalite terrorist groups”;

·        that he feared “retaliation by the Naxalite groups”.

36                  Secondly, in their letter dated 14 July 2000 to the Department, Mr Sowrimuthu’s solicitors stated:

“I asked the applicant to provide a details [sic] account of this Naxalite group.  He said that the group was known as a Hindu militant group in the North and as a political armed group in the South.”

37                  Thirdly, the Delegate recorded Mr Sowrimuthu as having stated at his interview that the “distant relatives” were members of a Naxalite group and that the purpose of their contact with him was to have him marry within their caste “in order to both become Hindu and lend his expertise to their group’s cause”.

38                  Fourthly, by their letter dated 6 October 2000 to the RRT, Mr Sowrimuthu’s solicitors stated:

“¼we note that the applicant’s fear [is] of persecution from Naxalite groups due to his religion.”

In the same letter, the solicitors asserted:

·        Naxalites are violent groups.

·        They have been responsible for torture and killings of their opponents.

·        Christian minorities are vulnerable under the current Government in India.

The letter also referred to “the growing Naxalite menace” in Andhra Prabesh.

39                  Fifthly, in a letter to the RRT dated 23 October 2000, Mr Sowrimuthu’s solicitors asserted that the Convention nexus of his claim was established on the basis of his religion because he claimed his distant relatives belonged to a Naxalite group and he feared harm at their hands due to his religion.

40                  In summary, Mr Sowrimuthu’s claim was that he feared persecution by Naxalite groups generally, including his distant relatives, for reason of religion.  A fair understanding of his claim was that Naxalites, including the distant relatives, were religious zealots.  His claim was certainly not one that he feared harm from his distant relatives alone.

41                  In the passage from the “Findings and Reasons” section of the RRT’s Reasons for Decision set out earlier, the RRT did not expressly refer to the “distant relatives”.  But it had done so earlier in the “Claims and Evidence” section.  It had stated there:

“The applicant had claimed that his distant relatives belonged to a Naxalite group, and he feared harm from them because he is a Christian.”

I do not think it matters that the RRT did not expressly refer to the “distant relatives” in its “Findings and Reasons” as well.  In any event, in the passage from the “Findings and Reasons” section set out in par [24] earlier, the RRT referred to “the family situation which [Mr Sowrimuthu] claimed had placed him in danger of persecution by Naxalites”.  This is clearly a reference to the distant relatives as the means by which his fear of the Naxalites in general came into being.

42                  In my opinion, the substance of Mr Sowrimuthu’s claim was addressed by the RRT.

43                  If, contrary to what I have said above, the claim of persecution by distant relatives was an independent and otherwise essential one which the RRT failed to consider, Mr Sowrimuthu’s application nonetheless fails because of the RRT’s conclusion (discussed under (c) below) that effective protection was available to him.

(b)        Failure to consider the possibility of multiple causes of the harm feared

44                  Mr Sowrimuthu also submits that the RRT erred in law by failing to consider the possibility of the existence of multiple effective causes of the harm he feared.  In his written submissions, counsel for Mr Sowrimuthu contended that the RRT “closed its mind” to the possibility of there being multiple effective causes of the persecution feared, since, despite the RRT’s statement to the contrary, there was evidence from which to infer that Mr Sowrimuthu had suffered because of, inter alia, his religion.  Counsel referred to Sarrazola at [13]-[17].  In that case, the Full Court found that the RRT had made an error of law by failing to recognise that one person may be motivated to persecute another for more than one reason, and that a motivation of extortion is not inconsistent with a motivation to harm for a Convention reason, such as race or political opinion.  In substance, counsel for Mr Sowrimuthu did not elaborate on this particular in his oral submissions. 

45                  Counsel for Mr Sowrimuthu accepted that this particular ((b)) “stemmed” from particular (a) above.  Once it is accepted that Mr Sowrimuthu’s Convention claim was that he had a well-founded fear of persecution from Naxalites on the ground of religion, this particular does not provide an independent ground of attack on the RRT’s decision. The RRT addressed the claim that the alleged persecutors (the Naxalites) were motivated to harm Mr Sowrimuthu by reason of religion.

(c)                Failure to address the issue of the sufficiency of protection available from the Indian authorities

46                  The RRT found

·        that “the Indian authorities in all the States where Naxalites are active are committed to providing their citizens with effective protection”,

·        that the Indian “Central and State governments have taken appropriate action against [the] perpetrators” of anti-Christian violence, and

·        that if Mr Sowrimuthu feared persecution for reason of his Christian religion, “he would have recourse to the protection of the State”. 

Counsel for Mr Sowrimuthu submits that an essential finding is missing.  This is that the protection available would be adequate to prevent Mr Sowrimuthu’s subjective fear of persecution from being objectively well-founded.  Counsel submitted that the issue is whether such protection as the Indian authorities do provide is “effective”, that is, that the test is not simply whether they provide a ‘system’ of protection, but whether that system is adequate.  Counsel referred to what I said (in which Burchett J and Whitlam J agreed) in Minister for Immigration & Multicultural Affairs v Prathapan (1998) 86 FCR 95 (FC) (“Prathapan”) at 102, 104-105, and to the Full Court’s reasons in A v Minister for Immigration & Multicultural Affairs (1999) 53 ALD 545 (“A”) at [38]-[54]. 

47                  In Prathapan, I expressly reserved (at 105-106) the question whether there is a “presumption” in the absence of evidence of a breakdown in state protection, that a country of nationality can provide to its nationals effective protection against persecution.  A presumption of that kind had been approved by the Supreme Court of Canada in Re Attorney-General (Canada) & Ward (1993) 103 DLR (4^th) 1 (“Ward”) at 23.  In Prathapan, I said that the Full Court’s apparent approval of the relevant passage from Ward in Minister for Immigration & Multicultural Affairs v Thiyagarajah (1997) 80 FCR 543 was persuasive as to the general approach the Court should take.

48                  Ultimately, however, Prathapan was decided on the basis that there was evidence establishing the existence of effective law enforcement and judicial systems in France and of the respect of the French government for human rights, and that the respondent had failed to prove he would not be given adequate protection.  I stated (at 106):

“It is not countervailing evidence to show that the authorities cannot guarantee immunity from persecution and reprisals. The material on which Mr Prathapan relied did not even begin to suggest that level of ineffectuality of state protection that would allow or give rise to a real chance that he would be persecuted by the LTTE regardless of his resorting to the French authorities.”

49                  In A, the Full Court stated that the obligations imposed on states by the Convention is “conditioned upon the need for protection” (at [36]) and that a person “cannot be said to be at risk of persecution if she can access effective protection in some part of her state of origin” (also at [36], quoting from Hathaway, The Law of Refugee Status, Butterworths, Toronto, 1991 at 135 – my emphasis).  The Full Court stated (at [38]):

“¼the language of Art 1A [of the Convention] focuses upon the well-founded fear of persons claiming Convention protection and their inability or unwillingness, owing to such fear, to avail themselves of the protection of the country of nationality. In that sense the willingness or ability of the country of nationality to provide protection is not the ultimate question. But it is a question which must be considered in the assessment of refugee status. The availability of protection in the country of origin or nationality is relevant to the existence of an objective basis upon which the well-founded fear of persecution that is necessary for Convention protection rests.” (my emphasis)

50                  Their Honours made the following observations concerning the approach to be taken in relation to the question whether effective protection is available:

·        Firstly, there is no “golden rule” that a person may never be given refugee protection if the person comes from “a democratic country governed by the rule of law and with generally effective judicial and law enforcement institutions” (at [39]).

·        Secondly, the proposition that “a person claiming refugee status is not ordinarily entitled to rely upon the supposed inadequacy of reasonable state protection available to him or her if it is not inferior to that available to a fellow citizen at risk of serious criminal harm for non-convention reasons” may need to be treated with caution (at [40]).

·        Thirdly, the Court rejected the presumption which had been recognised in Ward that nations are capable of protecting their own citizens, and stated that the conclusion of the primary Judge, Nicholson J, in A, “that ‘there is no foundation in authority or principle which should lead this court to accept the [Minister’s] submission for the existence of a presumption in terms of Ward’ is plainly correct” (at [41]).  Their Honours characterised the rejected presumption as one “without a basic fact” and therefore as “a rule of law relating to the existence of a burden of proof [which] has no part to play in administrative proceedings which are inquisitorial in their nature” (also at [41]).

·        Fourthly, the Court stated “the broad proposition that there must be information or material available to the decision-maker from some source or sources on the issue of effective protection”, and added “[i]n some cases the claimant may have to do little more than to show that [he or she] falls within a particular class of person or possesses particular attributes to make out want of effective protection as a basis for a well-founded fear of persecution and inability or unwillingness to avail [himself or herself] of the relavant protection [while] [i]n other cases the claimant may face a very difficult task indeed” (at [43]).

Their Honours stated (at [42]):

“Thus the delegate may well have the view that a particular country is one which has effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort said to be feared by the claimants. In such a case and in the absence of evidence advanced by the claimant, the delegate will be entitled to reject the contention that the claimant is unable or unwilling because of a well-founded fear of persecution for a convention reason, to avail him or herself of the protection of that country…In other cases a delegate or the [RRT] might be apprised of information indicating that for persons of particular classes or circumstances the relevant protection was ordinarily not forthcoming from their state of nationality.”

51                  Counsel for the Minister relied on the decision of Beaumont J on 23 November 2000 in Minister for Immigration & Multicultural Affairs v Tas [2000] FCA 1657.  In that case, his Honour thought that the RRT had addressed the wrong question, namely, whether the German authorities could “guarantee an adequate level of protection”, rather than, as they should, according to his Honour, have done, “whether there [was] a reasonable willingness on the part of the law enforcement agencies and the courts to detect, prosecute and punish offenders” (at [55]).  In this respect, his Honour followed the House of Lords in Horvath v Secretary of State for the Home Department [2000] 3 WLR 379, where their Lordships held, according to his Honour’s summary, that “when determining whether there is sufficient protection against persecution in the person’s country of origin, it is sufficient that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies” (at [37]). 

52                  It may be that his Honour intended by his reference to “reasonable willingness” to incorporate a reference to the notion of effectiveness of enforcement.  If not, what his Honour said would not be consistent with what the Full Court said in A, to which his Honour does not seem to have been referred.  As Merkel J said, in summarising the effect of A in Paramanayagam v Minister for Immigration & Multicultural Affairs [2000] FCA 1744, “it [is] necessary that the decision maker form a conclusion about the effectiveness of the relevant State protection and do so on material presented by the claimant or on material otherwise available to the decision maker” (at [8]). 

53                  There was material before the RRT both ways as to the effectiveness of the Indian authorities’ protection of the Christian minority against Hindu zealots.  The RRT referred in its Reasons for Decision to the 2000 “Annual Report on International Religious Freedom: India” which dealt with the subject at length.  That Report refers to many instances of violence done to Christians in India and of destruction of places of Christian worship and of the homes of Christians in that country.  It also refers to some prosecutions and to other forms of action taken by the authorities designed to reduce the religious tensions.  Ultimately, the treatment of this material was a matter for the RRT, not for this Court.

54                  It is a sufficient answer to Mr Sowrimuthu’s submission to say that in my opinion, when the RRT said that the Indian authorities in the states where Naxalites were active were “committed” to providing the citizens with effective protection, and described the action taken by governments against the perpetrators of religious persecution as “appropriate”, and said that Mr Sowrimuthu “would have recourse to the protection of the state”, it was deciding as a matter of fact, based on the country information before it, that Mr Sowrimuthu would have recourse to protection which would be effective to safeguard him.  Whether I would have reached that conclusion on the material which was before the RRT is beside the point.  Of course, there can be no guarantee, no matter how effective State protection is, that an instance of ineffectiveness will not occur.  But that possibility does not signify that a person is “unable” to avail himself or herself of state protection or that his or her fear of persecution is well-founded, for the purposes of the Convention definition of “refugee”; cf Minister for Immigration & Multicultural Affairs v Kandasamy [2000] FCA 67 at [51] per Whitlam and Carr JJ.

The second ground relied on – failure to observe required procedures – failure to make finding on material question of fact

55                  The particulars of this ground of appeal are that the RRT did not make a finding as to whether distant relatives assaulted Mr Sowrimuthu because he would not marry a Hindu and convert to Hinduism.  The meaning of the expression “material question of fact” in par 430(1)(c) of the Act was discussed by the Full Court in Minister for Immigration & Multicultural Affairs v Singh (2000) 98 FCR 469.  In their joint judgment four of the five members of the Court stated (at [56] and [57]):

“¼if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one. But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact are to be dealt with: see [Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham (2000) 168 ALR 407] at [65] and [67].

…A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.”

56                  The Minister submits that the RRT’s finding that there was no evidence that Naxalites are motivated by religious bigotry amounts to “a rejection or a non-acceptance of the claim of the motivation by the individual distant relatives”.  I accept this submission. 

57                  The RRT stated:

“The applicant was able to provide only scant detail of the family situation which he claimed had placed him in danger of persecution by Naxalites.  He stated at hearing that he only knew what his parents had been able to tell him in the two hours he had with them before leaving for Sri Lanka.”

Throughout, Mr Sowrimuthu’s claim was that the religious bigotry of the distant relatives was an aspect of their being Naxalites.  In stating, after the passage just quoted, that there was no evidence before it that Naxalites are motivated by religious bigotry, the RRT was rejecting Mr Sowrimuthu’s claim that he had been beaten by the distant relatives by reason of religion.

58                  In any event, the RRT’s conclusion that effective protection is available to Mr Sowrimuthu from the Indian authorities makes the question of persecution by the distant relatives a non-material one.

The third ground relied on – “no evidence” ground –that there was no evidence Naxalites motivated by religious bigotry

59                  The final ground relied on by Mr Sowrimuthu is that there was no evidence or other material to justify the making of the decision.  This ground is that the RRT based the decision on a fact, being that there was no evidence before it that Naxalites were motivated by religious bigotry, and that that fact did not exist.  The submission seems to be, in substance, that in the absence of a specific finding that the claim of assault by distant relatives was false, Mr Sowrimuthu’s evidence that such an attack occurred and was motivated by religious bigotry remained. 

60                  A sufficient answer to this submission is that Mr Sowrimuthu claimed to fear persecution from “Naxalites”, not just from his distant relatives alone, or from them otherwise than by their being Naxalites.  It was correct, as the RRT observed, that there was no evidence before it that Naxalites are motivated by religious bigotry.  Accordingly, there was no evidence before the RRT supporting the claim Mr Sowrimuthu made.

Conclusion

61                  For the above reasons the application will be dismissed with costs.

Associate:

Dated:              23 March 2001