FEDERAL COURT OF AUSTRALIA

NAWN v Minister for Immigration & Multicultural & Indigenous Affairs

[2005] FCA 328

MIGRATION – protection visa – appellant claims a well-founded fear of persecution for assisting in the Christian conversion of a Hindu in India – adverse findings as to the appellant’s credit – whether findings open to the RRT on the material before it – state protection

Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67 cited

Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487 applied

Horvath v Secretary of State for the Home Department [2001] 1 AC 489 cited

NAWN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 118 of 2005

SACKVILLE J

SYDNEY

1 APRIL 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs.

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

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

THE APPEAL

1                     This is an appeal from a decision of the Federal Magistrates Court handed down on 20 January 2005: [2005] FMCA 70.  The learned Magistrate dismissed an application for judicial review of the decision of the Refugee Review Tribunal (‘RRT’) made on 18 September 2003.  The RRT affirmed a decision of a delegate of the respondent (‘the Minister’), made on 10 February 2003, not to grant the appellant a protection visa.

THE APPELLANT’S CLAIMS

2                     The appellant is a citizen of India born in 1962 in Tamil Nadu.  He is an ethnic Tamil and claims to be a Christian.

3                     The appellant arrived in Australia on 4 November 2002.  On 22 November 2002, he lodged an application for a protection (class XA) visa.  He said that he had been a part-time gospel worker in India and that he feared persecution in that country at the hands of intolerant Hindus.

4                     The appellant claimed to be a qualified accountant, holding a Master’s degree obtained in 2000.  He said that in September 2001 he took a man to a Christian clergyman for baptism.  The man belonged to a traditional Hindu family and was a member of a very aggressive community.  The family of the convert became very angry with the appellant and wanted to kill him, although apparently they did not make the same threats to the clergyman.  According to the appellant, the family members belong to the Rashtriya Swayamsevak Sangh (‘RSS’), an organisation which espouses a return to Hindu values and cultural norms.

5                     The appellant claimed that he fled India because someone told him that the convert’s family would harm him.  The appellant said he could not go to the police because India is a Hindu country and the ruling party (the BJP) is Hindu. 

the rrt’s reasons

6                     The RRT noted that at the hearing the appellant was asked to name the apostles, but was unable to identify any of them.  The appellant also apparently acknowledged that the police might protect him if he made a complaint, but said that he fled India because of his fear of what the family of the convert would do to him.

7                     The RRT considered at some considerable length country reports concerning relations between various religious groups in India.  The RRT accepted that mobs had vandalised Christian premises and that there had been reports of an attack by Hindu extremists in 1999 on two Christian pastors in Kerala.  The RRT also accepted that there had been instances of persons who accused Christians of engaging in fraudulent conversions.  Five states in India, including Tamil Nadu, had enacted laws designed to prevent religious conversions by fraudulent means or coercion.  The RRT recorded that Christians in Tamil Nadu and elsewhere had been ‘gearing up’ to challenge the constitutionality of ‘anti-conversion’ legislation passed by some States in India.

8                     The RRT found that the various reports did not demonstrate that attacks on Christians occur in India with impunity or with the complicity of the authorities.  Nor did the independent evidence indicate that the BJP or RSS organised or promoted physical attacks on Christians.  While the RRT did not discount the seriousness of religiously-motivated crime, the available evidence did not suggest that the overwhelming majority of India’s 23 million Christians encountered difficulties in carrying out their normal religious practices.  The RRT was satisfied that all but a handful of incidents had occurred in Gujarat, Orissa or remote tribal areas.

9                     The RRT noted that in Tamil Nadu, persons engaging in proselytisation would have something to fear if they attempted to convert persons by force or fraud.  They would run the risk of the new law being applied to them.  The RRT observed that the appellant ‘was unaware of the provision of this new law or its effects’.

10                  The RRT’s factual findings concerning the appellant were set out briefly in its reasons, as follows:

‘I find it implausible that the [appellant] would fear harm because he introduced a person to a Reverend who subsequently was baptised [that is, the person was baptised], whilst the Reverend, who performed [the] baptism, had no such problems.  It does not ring true. 

Furthermore I do not accept the [appellant] was a part-time gospel worker or a Christian.  He had no knowledge of Christianity as he could not name any apostle.  I am of the view that a person who has no knowledge of basic Christian teachings would [not] be able to work as a gospel worker.  It follows I also do not accept that he took a person to a Reverend for baptism.  Nor do I accept that the family of the convert threatened the [appellant].  The [appellant’s] claim is implausible.  I am of the view that the [appellant] has created his claim in order to enhance his claims to refugee status.

Furthermore the [appellant] made no effort to access any of the avenues of protection which are available to him.  Independent information is that there is a fair if slow legal system, a functioning police force, a National Human Rights Commission and a number of human rights organisations.

In such circumstances there cannot be said to be a failure of State protection where a government has not been given the opportunity to respond to form of harm in circumstances where protection might reasonably have been forthcoming…

I note that whilst the [appellant] claims the family members belonged to the RSS and that the [appellant] would be unable to obtain protection from the police because of their membership of RSS, I have found no independent evidence to suggest that the BJP or RSS organises or promotes physical attacks on Christians or those doing gospel work. I am of the view that were this the situation it would be known to sources used by agencies such as the US State Department, the Australian Department of Foreign Affairs and Trade … and UNHCR.’

11                  As the RRT was not satisfied that the appellant had been harassed or harmed for a Convention reason in India, it was not satisfied that he had a well-founded fear of Convention based persecution on his return to India.

the magistrate’s decision

12                  The Magistrate noted that the appellant had not filed written submissions, but had identified ten grounds of review at the hearing.  Her Honour pointed out that a number of these grounds sought merits review of the RRT’s decision and were incapable of establishing jurisdictional error.

13                  The Magistrate observed that the RRT’s reasons appeared to contain a possible mistake.  The RRT had said that the appellant was unaware of the law introduced in Tamil Nadu in October 2002 relating to conversion of a person by force or fraud.  Her Honour pointed out that this finding might be regarded as contrary to the claims made by the appellant, since he had said in his application form that legislation had been passed in Tamil Nadu making it an offence to convert people in that state.  Her Honour, however, interpreted the RRT as drawing a distinction between knowledge that there was a law about conversion and knowledge about the circumstances in which that law would apply.  In any event, even if the RRT had made a mistake, it had not erred in law, let alone committed a jurisdictional error.

14                  The Magistrate held that the appellant had failed because the RRT did not find him a credible witness.  While the RRT had expressed its conclusions briefly, no error had been demonstrated.  Moreover, the findings in relation to state protection provided an alternative basis on which the RRT affirmed the decision not to grant the appellant a protection visa.  The RRT’s findings on this issue were open to it for the reasons that it gave, including the country information.

15                  The Magistrate went through each of the ten grounds identified by the appellant and concluded that there was no substance to any of them.  In particular, her Honour rejected the appellant’s claim that at the RRT hearing he had in fact listed six or seven apostles.  She pointed out that the transcript of the RRT hearing was not in evidence, despite the Minister’s written submissions having drawn the appellant’s attention to the absence of a transcript.  Moreover, the RRT’s account of what had occurred at the hearing was inconsistent with the appellant’s claim.  Accordingly, her Honour dismissed the application.

REASONING

16                  The amended notice of appeal raises two grounds, namely that the Magistrate erred in holding that:

(i)                  the RRT’s findings on credit were open to it;

(ii)        the RRT’s conclusion concerning state protection was open to it.

17                  The appellant relied on two arguments to attack the RRT’s findings on credit.  First, he argued that the RRT had erroneously assumed that he had been unaware of the anti-conversion law.  Secondly he repeated the claim that he had in fact named six or seven apostles at the RRT hearing despite being in a ‘state of distress and shock’ at the time.

18                  Notwithstanding the Magistrate’s construction of the RRT’s reason, I am inclined to think that the RRT did make a factual mistake when it said that the appellant was unaware of the new law in Tamil Nadu relating to forcible or fraudulent conversions.  The RRT’s reasons record the appellant as having said at the hearing that ‘[a] new law has come into effect that states that nobody can forcibly convert a person’.  I doubt that the RRT was drawing a distinction (as the Magistrate thought) between knowledge of the law and knowledge of the circumstances in which it would apply.

19                  However, this mistake appears to have had no bearing on the RRT’s findings as to whether the appellant had engaged in proselytisation and whether he feared retaliation from the family of a Christian convert.  There was no suggestion that the appellant had engaged in a forcible or fraudulent conversion, or otherwise risked prosecution under the law.  The RRT considered the appellant’s claims to have converted a Hindu and to have been a gospel worker implausible and found that he had manufactured them to enhance his claims to refugee status.  In any event, as the Magistrate held, a factual error does not constitute an error of law, let alone a jurisdictional error.

20                  There was no evidence before the Magistrate to support the appellant’s claim that he had named six or seven apostles at the RRT hearing.  In the absence of any such evidence, the Magistrate did not err in rejecting the claim.

21                  The appellant’s second ground challenged the RRT’s assessment of the country information relating to India.  However, it was a matter for the RRT to assess the information and to determine whether there had been a failure of state protection in that country.  The appellant’s invitation to engage in merits review must be resisted.

22                  The RRT relied on the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Kandasamy [2000] FCA 67 to support its conclusion that there had been no failure of State protection and that therefore the appellant did not have a well-founded fear of persecution for a Convention reason.  There Whitlam and Carr JJ (with whom Hill J agreed) observed (at [51]) that if the RRT found (as it had) that the applicant’s country of citizenship (Denmark) could and would provide the applicant with effective state protection, then:

‘(a)      it could not be said that the [applicant] was, in the relevant sense, “unable” to avail himself of the protection of Denmark.  He had a realistic choice of availing himself of that protection and reliance on Denmark would have been of practical utility…; and

 (b)      any fear of persecution on the [applicant’s] part would not be well-founded; his unwillingness to avail himself of Denmark’s protection could not be said to be “owing to such fear”.’

23                  As the jointjudgment of three members of the High Court observed in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 205 ALR 487, at [18]:

‘although the paradigm case of persecution contemplated by the Convention is persecution by the state or agents of the state, it is accepted in Australia, and in a number of other jurisdictions, that the serious harm involved in what is found to be persecution may be inflicted by persons who are not agents of the state.  But not all serious harm inflicted upon a person by his or her  fellow-citizens amounts to persecution, even if it is inflicted for one of the reasons stated in the Convention. The word used by Art 1A(2) is “persecuted”, not “harmed”, or “seriously harmed”.’

24                  Later (at [21]) their Honours adopted the view expressed by a majority of the House of Lords in Horvath v Secretary of State for the Home Department [2001] 1 AC 489, that:

‘in a case of alleged persecution by non-state agents, the willingness and ability of the state to discharge its obligation to protect its citizens may be relevant at three stages of the enquiry raised by Art 1A(2).  It may be relevant to whether the fear is well-founded; and to whether the conduct giving rise to the fear is persecution; and to whether a person … is unable, or, owing to fear of persecution, is unwilling, to avail himself of the protection of his home state.’

25                  The present case is one where, as in Respondents S152/2003, the appellant did not seek the protection of the relevant authorities in his country of citizenship.  The RRT found that India has a fair if slow legal system, a functioning police force and human rights organisations.  I interpret the RRT’s reasons, although expressed somewhat loosely, as finding that the Indian authorities, if advised of the appellant’s complaint, could provide the level of protection required by international standards: see Respondents S152/2003, at [27].  This constituted an independent ground on which the RRT affirmed the delegate’s decision.

26                  I should mention one other point.  The RRT said that because it had found that the appellant had not been harassed or harmed for a Convention reason, it was not satisfied that the appellant had a well-founded fear of persecution for a Convention reason.  It might be argued that this reasoning is, strictly speaking, incomplete, since an applicant for a protection visa may have a well-founded fear of persecution even though he or she has never actually experienced persecutory conduct.  Here, however, the appellant’s case rested entirely on his claims to fear persecution by reason of his proselytising activities as a Christian.  Once the RRT found that his claims were fabricated, there was no basis on which he could be found to have a well-founded fear of persecution in India for a Convention reason.

CONCLUSION

27                  The appeal must be dismissed with costs.

Associate:

Dated:              1 April 2005