FEDERAL COURT OF AUSTRALIA

SZBOT v Minister for Immigration & Multicultural & Indigenous Affairs

[2006] FCA 411

Migration Act 1958 (Cth) s 91R

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

SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36

SZBOT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL

NSD1724 OF 2005

BENNETT J

13 APRIL 2006

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.      The appeal be dismissed.

2.      The appellant pay the first 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

1                     The appellant is an Indian national who arrived in Australia on 18 June 2002.  On 24 September 2003, the Refugee Review Tribunal (‘the Tribunal’) confirmed the decision of a delegate of the first respondent to refuse him a protection visa.  The appellant claimed to fear persecution at the hands of Muslim fundamentalists on grounds of being a Hindu and a former member of the Bharatiya Janata Party.  His claimed fear was not due to any personal experiences on his part or particular mistreatment suffered but was based upon the existence of communal violence in India.

2                     On appeal to the Federal Magistrates Court, Barnes FM dealt comprehensively with the various grounds of the application for review relied upon by Mr Turner, the solicitor for the appellant.  I do not propose to repeat or summarise the detail of her Honour’s decision other than as necessary to deal with the grounds of appeal.  Mr Turner confirmed that, despite the notice of appeal and written submissions repeating each of the grounds before her Honour, there were two grounds of appeal pressed before me.

Ground 1: Did the Tribunal apply the wrong test of well-founded fear of persecution?

3                     The Tribunal set out, at the beginning of its reasons, the test of fear of persecution to be applied.  No criticism is made of that statement of principle.  Mr Turner submits that the Tribunal failed to apply the test in that it failed to consider whether or not the protection afforded by the Indian government was adequate or sufficient.

4                     The Tribunal made the following relevant findings:

·         Various parts of India have suffered and continue to suffer communal violence between Hindus and Muslims and it is an ongoing problem.

·         The violence ‘is not systematically organised or institutionalised in any way’ and mostly ‘the product of unpredictable frictions over a range of issues’.

·         The authorities have not always been successful in containing the violence.

·         In general, the Indian government has demonstrated a willingness and ability to provide protection to citizens irrespective of their religious beliefs.

·         There was nothing in the evidence from which to conclude that there is a real chance that the appellant would be persecuted in the reasonably foreseeable future upon his return to India.

·         Even if he were to have difficulties in the foreseeable future in Pune (where he had lived), effective protection would be available to him in Pune or elsewhere in India.

·         The appellant conceded that the police in India do investigate complaints, the government tries to control Muslim activists and the same standard of protection is available to all Indian citizens.

·         If the appellant were to seek assistance or protection from the police it would be provided. 

5                     The Federal Magistrate concluded that the Tribunal’s decision, read as a whole, addressed not only the claims about the past and whether the applicant had been persecuted but also whether the appellant faced a real chance of persecution in future and, in doing so, applied the correct test for the purposes of a determination of persecution in the sense required by s 91R of the Migration Act 1958 (Cth).

6                     As her Honour said at [16]:

‘It is relevant that the Tribunal also accepted the country information contained in the decision of the delegate.  Such information dealt with the issue of the protection available to Hindus or members of the BJP (such as the applicant had been).  In that context the Tribunal found that, despite acknowledged shortcomings, it was satisfied that, as was conceded by the applicant at the hearing, in general the Indian government had demonstrated ‘a willingness and ability’ to provide protection to citizens irrespective of their religious beliefs.  This finding, based on independent information and the applicant’s concession, as well as the other matters conceded by the applicant (being that the police do investigate complaints, that the government tries to control Muslim activists and that the same standard of protection is available to all Indian citizens) formed the basis for the Tribunal’s satisfaction that effective protection would be available to the applicant.  The Tribunal also addressed the applicant’s contention that the police ‘can do nothing’.  However it was satisfied that if the applicant were to seek assistance or protection from the police (something he had never done) it would be provided.  Read as a whole it is clear that the Tribunal was not simply applying a test of the same standard of protection being available to all.’

7                     I see no error in the reasons of the Federal Magistrate.  While the argument before me emphasised different aspects of the Tribunal’s decision and the test to be applied, it is clear to me that the Tribunal did turn its mind to the question of the availability of protection and to the adequacy or sufficiency of that protection. .  The Tribunal found effective State protection was available without discrimination to all citizens of India.   As shown in the emphasised parts of the Tribunal decision summarised in [4], this was taken into account both in the assessment of fears of persecution based on past events and in the assessment of a well-founded fear of persecution in the reasonably foreseeable future.

8                     The question whether the State can be said to provide sufficient protection is the relevant question where, as here, the State was not complicit in the persecution and did not actively condone or tolerate the persecution (SZDWR v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCAFC 36 at [17]).  The standard of protection is of not of complete efficacy but of a reasonably effective police force and a reasonably impartial system of justice (Minister for Immigration & Multicultural & Indigenous Affairs v Respondents S152/2003 (2004) 205 ALR 487 at [28]; SZDWR at [18]).

9                     There was no failure on the part of the Tribunal to apply the correct test.

Was there a denial of procedural fairness?

10                  Mr Turner submits that the Tribunal made a finding that Pune was a safe place for the appellant and that this finding was not based on reasonably probative evidence.  This is based upon a paragraph in the Tribunal’s decision in a section under the heading “Applicant’s case”, before the section headed “Findings and Reasons”.  In that paragraph, [51], the Tribunal said:

‘I put to the [appellant] that I had difficulty thinking of a safer place in India than Pune.  He said that Pune had not been so safe since the destruction of the Babri Mosque in 1992.’

11                  In the section under the heading “Findings and Reasons”, the Tribunal said at [64]:

‘Further, even if the [appellant] were to have difficulties in the foreseeable future in Pune I am satisfied that effective protection would be available to him whether in Pune or elsewhere in India.’

12                  Barnes FM held at [25] that there was no necessity for her to determine the extent to which a failure to base a decision on reasonably probative evidence constitutes jurisdictional error because the factual basis for the submission was not established.  As her Honour observed at [27], the Tribunal did not make a finding that it had difficulty thinking of a safer place than Pune.  Rather, the statement was a comment put to the appellant for his response in the course of the Tribunal hearing.  As her Honour said, if the Tribunal puts its thought processes to an applicant, it ‘does not constitute jurisdictional error so long as it does so fairly and gives the applicant the opportunity to address concerns raised’.  Mr Turner has not established, and I do not find, an error in that approach.

13                  Mr Turner submits that the Tribunal found that Pune was safe.  It did not do so.  The Tribunal found that the evidence did not enable it to conclude that the appellant would be persecuted in the reasonably foreseeable future upon his return to India.  It also found that, even if the appellant were to have difficulties in the foreseeable future in Pune, it was satisfied that effective protection would be available to him whether in Pune or elsewhere in India.  That finding is consistent with recognition by the Tribunal that communal violence may take place in Pune.

14                  The appellant has not established error on the part of the Federal Magistrate or jurisdictional error on the part of the Tribunal.  The appeal must be dismissed with costs.

Associate:

Dated:              13 April 2006