FEDERAL COURT OF AUSTRALIA

BPX17 v Minister for Immigration and Border Protection [2018] FCA 763

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellants pay the costs of the first respondent, to be assessed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BARKER J:

1    The appellants appeal from a decision of the Federal Circuit Court of Australia dismissing their application for judicial review of a decision of the Administrative Appeals Tribunal. The Tribunal’s decision affirmed a decision of a delegate of the Minister for Immigration and Border Protection refusing to grant them protection (class XA) visas under the Migration Act 1958 (Cth).

2    The appellants – who are wife and husband now in their 30s – are citizens of India. They arrived in Australia in 2009, after the wife was granted a student visa.

3    They first applied for protection visas in July 2011, however their initial application was refused.

4    The refusal decision was affirmed on merits review in March 2012.

5    The appellants again applied for protection visas on 2 November 2012. This second application was considered valid in light of the decision in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71, on the basis that a claim for complementary protection had not been considered on the earlier application. The wife was the primary applicant on the second application, with the husband included as a member of the same family unit and not raising claims in his own right.

6    The complementary protection provisions of the Act were introduced into it by the Migration Amendment (Complementary Protection) Act 2011 (Cth), which have applied since March 2012. They give effect to Australia’s obligations under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Opened for signature 10 December 1984. 1465 UNTS 85 (entered into force 26 June 1987), the International Covenant on Civil and Political Rights. Opened for signature 16 December 1966. 999 UNTS 171 (entered into force 23 March 1976) and the Convention on the Rights of the Child. Opened for signature 20 November 1989. 1577 UNTS 3 (entered into force 2 September 1990).

7    Section 36(2A) of the Act now provides that Australia is not permitted to remove people to countries where they face a real risk of one of more of the following:

    Arbitrary deprivation of life

    The death penalty

    Torture

    Cruel or inhuman treatment or punishment

    Degrading treatment or punishment

8    Section 36(2B) sets out three exceptions. They are that there is no “real risk” of significant harm:

    If the applicant can safely relocate to another part of the country.

    If an authority within the country can provide protection.

    If the risk is faced by the population generally and not by the non-citizen personally.

9    Section 36(2C) sets out exclusion clauses which are not presently relevant, but include where a person has committed a crime against peace, war crime or crime against humanity, as understood at international law.

10    In the second protection visa application, the wife claimed the appellants left India due to religious intolerance in the country. She stated that since arriving in Australia they had both converted to the Jehovah’s Witness faith and, if they were to return to India, would have to remain clandestine adherents and significantly modify their religious practices, including by not engaging in preaching activities, in order to avoid serious harm in India. She said Jehovah’s Witnesses were ostracised and vulnerable members of the Indian community.

11    She referred to hostility directed toward people of her faith, including that her family and community would not accept her and her husband’s conversion and would seek to seriously harm them. The wife claimed that, due to their religion, she and her husband would face severe discrimination tantamount to persecution in relation to legal protection, employment, inheritance and education. She stated that, given that India remains largely a caste system, their rights derived from their class would be taken away due to being apostates.

12    The wife further claimed that Indian society did not accept converts, particularly those who converted to Jehovah’s Witness faith, and stated that the authorities would not intervene in religiously motivated crimes.

13    In July 2015, the delegate refused the appellants’ application.

14    The appellants applied for merits review of the delegate’s decision in the Tribunal. The Tribunal affirmed the delegate’s decision on 14 March 2017. The Tribunal ultimately found, having considered the evidence before it, that it did not accept that there was a real risk that the wife would suffer significant harm outside Punjab as a necessary and foreseeable consequence of being removed from Australia to India.

15    The appellants applied to the Circuit Court for judicial review of the Tribunal’s decision. A judge of the Circuit Court dismissed the application on 7 December 2017, finding that no jurisdictional error had been established.

16    The appellants now appeal on a single ground, namely:

1.    The primary judge erred by failing to conclude that the [Tribunal] had made a jurisdictional error in its purported application of the tests for determining a relevant risk of significant harm.

A.    The primary judge erred by concluding that the First [appellant] had not properly raised before the Tribunal the fact she would proselytise across India as a Jehovah’s Witness.

B.    The Primary judge erred by concluding that the decision of the High Court in S395 did not apply in relation to complementary protection.

C.    The primary judge erred by concluding that the Tribunal was not required to assess the reasonableness of the Appellants refraining from visiting States with anti-conversion laws.

D.    The primary judge erred by concluding that the Tribunal had not properly determined whether such reasonableness was present in relation to the Appellants and /or had failed to conclude that it was unreasonable for the Appellants to modify their conduct in refraining from visiting the states of India with anti-conclusion laws.

17    To understand this ground it is necessary to understand how the appellants’ second protection visa application was dealt with by the delegate, the Tribunal, and the judge.

Delegate’s Decision

18    On 2 November 2012, the Department of Immigration and Citizenship, now the Department of Home Affairs, sent the appellants a notification of an invalid visa application, due to previously having been refused protection. In August 2013, however, they received notification that this same application was now valid, as a result of the Full Court’s decision in SZGIZ.

19    In late 2013, the appellants sent the Department baptism photos, and materials distributed in the conduct of preaching.

20    The appellants attended an interview with the delegate in May 2014.

21    Further evidence of the wife’s religious activities was provided in early 2015, including photos and religious meeting notices regarding Jehovah’s Witness conventions in Australia.

22    The delegate refused the appellants’ protection visa application by a decision dated 8 July 2015.

23    The delegate accepted that the wife was a member of the Jehovah’s Witness movement, having converted to the religion from Hinduism while in Australia.

24    However, the delegate found that the wife demonstrated that she did not know if there were any Jehovah’s Witnesses living in India, and did not show an understanding of the situation for people of her religion in India.

25    In regard to the wife’s claims regarding her parents and their disapproval of her conversion, the delegate did not accept that they were aware of her Jehovah’s Witness membership and did not accept there was a current risk of her parents harming her in India as a result of her religion.

26    The delegate considered country information in holding that, despite cases of attacks on Jehovah’s Witnesses in India, there was a sizeable Jehovah’s Witness community, noting that the number of members had grown each year. He considered there was no indication that there was ongoing and specific targeting in respect of members of the religion in India, and that the number of the Indian population affected by attacks on Jehovah’s Witnesses was statistically very small.

27    The delegate concluded that the wife applied for a protection visa for reasons other than requiring protection, including that she wanted to stay in Australia to work and have a family. He did not consider the wife to be a credible witness.

28    The delegate stated that he was not satisfied the wife had a real chance of being persecuted for a reason under s 36(2)(a) of the Act or a real risk of being subjected to significant harm under s 36(2)(aa).

Tribunal’s Decision

29    As part of the review process, the appellants were invited to attend a hearing before the Tribunal in November 2016. This hearing was postponed twice, until January 2017. At the hearing, the appellants were represented by a migration agent and assisted by a Punjabi interpreter.

30    The appellants provided the Tribunal with letters of support from a local congregation of Jehovah’s Witnesses.

31    The appellants’ representative provided submissions to the Tribunal in January 2017, after the hearing, in response to adverse information put to them during the hearing. These submissions referred to relocation to Nepal, and access to health care for Jehovah’s Witnesses in India, and attached country information in support.

32    Based on authority, the Tribunal properly considered the wife’s claims only in relation to the s 36(2)(aa) complementary protection criteria, due to her having previously been refused a protection visa under s 36(2)(a) of the Act.

33    The Tribunal set out country information in relation to Jehovah’s Witnesses, women, relocation and the treatment of returnees. It noted that the wife’s claims arose after she came to Australia, rather than having been subjected to persecution in India before her departure.

34    The Tribunal accepted, at [70] of its decision record, that despite some concerns regarding the wife’s credibility and motivation for involvement with the Jehovah’s Witnesses, she had been baptised and would likely seek to proselytise in line with her religious beliefs if returned to India.

35    It referred, at [71], to the claims made in regard to the wife’s family, and considered that there was no evidence before the Tribunal showing that her family had threatened harm, other than claims that she was told to “stay away” from her family, and that she was “dead” to them by reason of her conversion. The Tribunal did accept that, particularly in Punjab, the wife’s family’s honour may be diminished as a result of her conversion, however held that she would likely stay away from her family which would limit the adverse effect on her family’s honour.

36    The Tribunal did not consider the evidence of threats in respect of the husband’s family to be serious.

37    The Tribunal referred to the chance of the appellants being pursued or located by family members in India, and considered this was remote and far-fetched. While acknowledging that some tracing could occur through Jehovah’s Witness communities, the Tribunal considered that there was nothing to indicate that a family member, relative or community member would be so aggrieved by the appellants’ return to India that, despite their settling in another place, they would seek to locate them outside of their own villages.

38    At [74], the Tribunal commenced its analysis by accepting that religious intolerance, especially in respect of proselytising, may lead to a reaction in the community and that the nature of the practice of evangelising by knocking on strangers’ doors would put a Jehovah’s Witness at a risk of harm each time they engaged in such conduct.

39    At [75], the Tribunal accepted that there was a real chance the wife would suffer a degree of social ostracism and discrimination, including verbal abuse and harassment from conservative-minded Hindus if they knew she had been a Hindu and converted to Jehovah’s Witness. It held, however, that based on the information before it the chance of this occurring was more than remote. In this respect the Tribunal made reference to reports of increased tolerance to Jehovah’s Witnesses in India, reports which were disseminated by Jehovah’s Witnesses themselves. Here the Tribunal noted that this tolerance was reportedly particularly prevalent in large cities where people were more progressive.

40    The Tribunal also noted no incidents had been reported in India in relation to Jehovah’s Witnesses in the previous two years, and that the vast majority of Indians were tolerant and accepting of other religions, and referred also to the large population of Christians throughout the country.

41    The Tribunal stated, in this light, at [76]:

… the available independent information does not support a finding that there is a real risk of the review applicant suffering significant harm for reasons of her practice of inviting strangers to have a conversation about religion in an attempt to try and persuade them of the correctness of her beliefs, or simply because she is, and identifies as, a Jehovah’s Witness.

42    In regard to the appellants’ claim with respect to anti-conversion laws in some Indian states, the Tribunal, at [77], stated that the laws were intended to prohibit conversion of individuals in India by others through force or fraudulent means. It considered that the wife converted outside of India and that her conversion would not fall within the purview of these laws.

43    At [78], the Tribunal said:

I note the argument that as a practising Jehovah’s Witness, the review applicant could fall foul of these laws were she proselytising in a state which had enacted the laws, but for reasons discussed below, I consider that the review applicant can relocate to avoid the effect of these laws.

44    To this effect, at [86], the Tribunal stated that the laws only currently existed in six states, but not in 23 other states including Punjab. The Tribunal said the laws did not exist in Haryana or Delhi, which were states where Punjabi was particularly prevalently spoken and to which it considered the appellants could reasonably relocate.

45    Further, the Tribunal found there was no indication that the wife faced a real risk of extreme unemployment, homelessness and poverty as a result of her gender. It held that her marriage to her husband, language ability, employment history and education “impacted” her lack of risk.

46    Nor did it consider that if she were forced to undergo medical treatment contrary to her religious beliefs as a medical or therapeutic necessity, that this would constitute inhuman or degrading treatment. The Tribunal also did not consider that her deprivation of economic, social and cultural rights or the lack of availability of medical treatment suitable given her religious beliefs amounted to significant harm.

47    In concluding, the Tribunal stated at [87] of its decision record:

Having considered the applicant’s claims singularly and cumulatively, the Tribunal does not accept there is a real risk the review applicant would suffer significant harm outside the Punjab as a necessary and foreseeable consequence of being removed from Australia to India. The Tribunal therefore finds the applicant does not satisfy the criteria set out in s.36(2)(aa).

Judicial Review in the CIrcuit Court

48    The appellants’ sole ground of appeal in the Circuit Court was:

The [Tribunal] committed a jurisdictional error by applying the incorrect test for determining what amounts to a real risk of significant harm.

Particulars

1.    At paragraph 27 of the decision record, the [Tribunal] concluded at para 83 of the decision record that this risk could be ameliorated by her relocation to another part of Punjab or another part of India.

2.    The [Tribunal] failed to consider the integer of the Applicants claims that as a Jehovah’s Witness she would be involved in evangelical-style preaching, which cannot be restricted or discerning as to whom or where she conducts her proselytising activities.

3.    Being discerning or limiting her proselytising activities to certain part of India or states as determined by the [Tribunal] would amount to unreasonable restriction and render proper/effective adherence to her faith untenable.

49    At [8] of the Circuit Court’s decision, the judge made reference to the supporting material the wife provided which was before the Tribunal. His Honour stated that these materials referred to Jehovah’s Witness meetings, none of which were interstate, and noted that the letters from the local congregation made no reference to proselytising interstate.

50    The judge’s finding at [24]-[29] of his reasons are central to this appeal:

24.    Mr Jones of counsel skilfully argued that the first applicant on the reasoning of the Tribunal would have to suppress an attribute of her religion in her desire to proselytise because of the existence of the anti-conversion laws in six of the 22 states. Mr Jones argued that the applicant wished to proselytise pan India. No such claim was made by the first applicant that she wished to proselytise pan India.

25.    On a fair reading of the first applicant’s claims they were identifying a desire by the first applicant to practise her religion in and around her community and there is no basis for suggesting that the first applicant was the subject of an attribute of her religion that she had to travel to the six states that had anti-conversion laws in order to practise her religion. Mr Jones skilfully argued that because the real chance and real risk test are the same it should follow that the principles in S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 in respect of persecutory harm had direct application to the issue of significant harm under s 36(2)(aa). Significant harm is defined by s 36(2A). I do not accept the submission that S395 has direct application in terms of the suppressing of an attribute to the determination of complementary protection.

26.    In any event, in the present case the first applicant’s claim was not that she wished to practise or proselytise her religion throughout India and, whilst the Tribunal identified the capacity of the first applicant to be able to relocate, and that they could reasonably do so, no error was made by the Tribunal in the application of the significant harm test in determining whether or not the applicants were entitled to complementary protection.

27.    I reject the submission that this Court is the subject of binding authority because of the reference to the real chance and real risk tests being the same in respect of the argument being advanced by Mr Jones that persecutory harm must therefore necessarily fall within the complementary protection assessment in respect of significant harm. Further, in the present case, as a matter of fact, the first applicant did not advance a claim that she would proselytise pan India. The first applicant’s activities in her practice of her religion were apparently community or local-based on the material before the Tribunal.

28.    No such pan India claim could fairly be said to arise on the material before the Tribunal.

29.    The first applicant would not be suppressing an attribute of her religion by not going to a state that has anti-conversion laws. The adverse findings by the Tribunal are not the subject of any jurisdictional error by applying the incorrect test. No jurisdictional error is made out by Ground 1.

51    His Honour concluded that the application for judicial review had failed to establish jurisdictional error on the part of the Tribunal.

Appeal to This Court

52    On 18 December 2017, the appellants filed a notice of appeal in this Court, appealing from the judgment and orders of the Circuit Court. They seek an order that the Tribunal’s decision be set aside and that the Minister pay their costs.

53    The appellants’ sole ground of appeal, as noted above, is that:

1.    The primary judge erred by failing to conclude that the [Tribunal] had made a jurisdictional error in its purported application of the tests for determining a relevant risk of significant harm.

A.    The primary judge erred by concluding that the First [appellant] had not properly raised before the Tribunal the fact she would proselytise across India as a Jehovah’s Witness.

B.    The Primary judge erred by concluding that the decision of the High Court in S395 did not apply in relation to complementary protection.

C.    The primary judge erred by concluding that the Tribunal was not required to assess the reasonableness of the Appellants refraining from visiting States with anti-conversion laws.

D.    The primary judge erred by concluding that the Tribunal had not properly determined whether such reasonableness was present in relation to the Appellants and /or had failed to conclude that it was unreasonable for the Appellants to modify their conduct in refraining from visiting the states of India with anti-conclusion laws.

54    The appellants filed an outline of submissions in the appeal which were emphasised in oral submissions made on their behalf at the hearing of the appeal.

55    The appellants highlight the Tribunal’s findings which appear at [70], [78] and [86] of its decision record, and [24]-[29] of the judge’s reasons for dismissing the judicial review application (referred to above).

56    The appellants rely on the following excerpt from Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176 at [82]-[83] (Kenny, Tracey and Griffiths JJ), referring to the authority Appellant S395/2000 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473; [2003] HCA 71:

82     … As McHugh and Kirby JJ observed in S395 at [43] (to similar effect, see Gummow and Hayne JJ at [82]):

43.     The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.

83    Based on the [Immigration Assessment Authority’s] own findings, which flowed from the material before it, it had to consider whether the first respondent would not practice his faith more often and be more politically active on return to Iran because he feared the harm that would follow. Its failure to address these matters involves jurisdictional error.

57    The appellants contend that essentially the same jurisdictional error arises in this appeal, with two arguable points of distinction. The first distinction is that this matter does not involve past conduct of proselytising in India. The second is that this appeal involves the Tribunal’s assessment of the reasonableness of relocation to particular places, being Haryana or Delhi.

58    However, the appellants submit, there is a common, decisive thread. They say the proselytising required by their religion is without restriction as to location and, by its nature, would involve proselytising in all locations.

59    The appellants state that the Tribunal effectively asked them to avoid proselytising in particular locations due to the risk of harm in those locations. In this respect, the appellants submit:

In S395, the Court held that the ‘notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality’. The same arises in the present case. By insisting it was reasonable for the Appellants to avoid particular locations, the Tribunal failed to determine whether there was a real risk the Appellants would face significant harm. In other words, as it would require the Appellants to restrict their religious beliefs, the Tribunal did not properly determine the reasonableness of relocation in the present case.

60    The appellants submit that the judge said nothing to displace their submission. They contend, in particular, that:

    They did not express that their proselytising would be restricted as to location, and it was instead expressed in general terms, with the result that the Tribunal was required to proceed on the basis that proselytising would be pan-Indian.

    The notion of their proselytising on a pan-Indian basis meant that it was necessarily material to ask whether they would suffer significant harm should they proselytise on that basis, in accordance with Appellant S395 and BBS16. For present purposes, there is no material distinction between a well-founded fear of persecution and a real risk of serious harm.

    By failing to consider the basis on which they would come to be present in the relevant states of India, the Tribunal did not properly consider the reasonableness of the appellants refraining from visiting those states. It was not enough for the Tribunal to assess the reasonableness of them confining themselves to other states of India. Rather, it was necessary for it to consider that reasonableness, in light of the fact that the appellants, by confining themselves, would do so contrary to their religious beliefs.

61    The Minister contends that the appeal is without merit and should be dismissed, for two reasons which he claims are consistent with the reasons given by the Circuit Court.

62    First, the Minister submits that the wife made no claim to the effect that her religion required her to travel to proselytise outside her area of residence and in all areas of India. Rather, the Minister contends, the wife’s claimed desire to practise her religion was “more local or community based in nature”, meaning the Tribunal made findings open to it, in considering her claims.

63    Secondly, the Minister says that the reasoning in Appellant S395 is specific to the refugee criterion and does not apply to the complementary protection provisions. The Minister argues that, unlike s 36(2)(a), s 36(2)(aa) does not operate by reference to particular traits or characteristics of a person, and does not operate to protect specific attributes, as were the subject of consideration in Appellant S395.

64    In contrast, the Minister says, s 36(2)(aa) requires the risk to arise as a “necessary and foreseeable consequence” of a person’s removal, rather than incorporating the “well-founded fear” concept, or characteristics of a “particular social group”. He cites Minister for Immigration and Citizenship v Anochie and Another (2012) 209 FCR 497; [2012] FCA 1440 at [62] regarding the phrase “necessary and foreseeable consequence”, namely:

One should observe the high standard set by this test. A foreseeable consequence is one thing, but a ‘necessary and foreseeable consequence’ is another altogether. It is foreseeable that I may get wet on the way home today, but on no view is it both necessary and foreseeable that this should occur – the clouds may clear.

65    Therefore, the Minister submits, a risk said to arise due to a person’s own conduct and choice does not occur as a “necessary and foreseeable consequence” of her or his removal, citing SZQDF v Minister for Immigration & Anor [2017] FCCA 519 at [39]. He contends that if there is a risk in the wife proselytising in specific states, that is not as a necessary and foreseeable consequence of her removal to Australia, but rather a risk consequential and dependent upon her decision to travel to those states and perform those activities.

66    Finally, the Minister contends that there is insufficient textual support for an extension of the reasoning in Appellant S395 as contended by the appellants, whereas the Minister’s position is supported in the statutory history and purpose of s 36(2)(aa), which was enacted to implement international non-refoulement obligations that are not identical to those under s 36(2)(a). Thus, the Tribunal considered the wife’s claims on the terms made and the Circuit Court did not err in finding as it did.

Consideration

67    As noted above, the Tribunal, having considered the evidence before it said it did not accept that there was a real risk that the wife would suffer significant harm outside the Punjab as a necessary and foreseeable consequence of being removed from Australia to India and so did not satisfy the criteria set out in s 36(2)(aa).

68    I have mentioned at the outset of these reasons the key provisions of the Act that enable a person to obtain a protection visa by reason of the complementary protection provisions of the Act. I should deal with those provisions in a little more detail.

69    Section 36(2)(aa) relevantly provides that a criterion for a protection visa is that the applicant is a non-citizen in Australia in respect of whom the Minister (or in this case, on review, the Tribunal) is satisfied Australia has protection obligations because the Minister has “substantial grounds” for believing that, “as a necessary and foreseeable consequence” of the non-citizen being removed from Australia to a receiving country, “there is a real risk that the non-citizen will suffer significant harm”.

70    I interpolate to observe that the relevant statutory language owes itself to the international obligations Australia has assumed. See discussion: Perram J in Anochie; McAdam J and Chong F, “Complementary Protection in Australia Two Years On: An Emerging Human Rights Jurisprudence” (2014) 42 Fed L Rev 441.

71    So far as the expression “significant harm” is concerned, s 36(2A) provides that a non-citizen will suffer significant harm if:

(a)     the non‑citizen will be arbitrarily deprived of his or her life; or

(b)     the death penalty will be carried out on the non‑citizen; or

(c)     the non‑citizen will be subjected to torture; or

(d)     the non‑citizen will be subjected to cruel or inhuman treatment or punishment; or

(e)     the non‑citizen will be subjected to degrading treatment or punishment.

72    However, as provided for by s 36(2B), there is taken “not to be a real risk” that a non‑citizen will suffer significant harm in a country, if the Minister is relevantly satisfied that:

(a)     it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; …

73    There are other exceptions in s 36(2B), in para (b) and para (c), but they are not presently relevant.

74    Nor are the ineligibility criteria for a grant of a protection visa on complementary protection grounds that are specified in s 36(2C).

75    The first question calling for consideration in the Tribunal in reviewing the Minister’s decision was whether the wife will suffer significant harm of one or other defined kind. Part of that decision-making process required the decision-maker to ask, if relevant, whether the wife was not to be taken as having a real risk of suffering that harm because it would be reasonable for her to relocate to an area of the country where that would not be a real risk.

76    As a matter of sensible structured decision-making, however, it is open to the decision-maker to approach its task under the Act by asking (1) if significant harm of the defined kind is apparent, and, if so, (2) whether it would be reasonable for the wife to relocate to another area where that would not be a real risk.

77    The instances of possible significant harm on the claims made by the wife, would appear to be those encapsulated by s 36(2A), para (a) – arbitrarily deprived of her life; (b) – death penalty will be carried out; (c) – subjected to torture; (d) – subjected to cruel or inhuman treatment or punishment; and (e) – subjected to degrading treatment or punishment.

78    The Tribunal, at [44], noted that the wife asserted that she cannot return to India because she fears being persecuted by her family and she fears that she will not be able to practise her religion free of harassment, persecution and prosecution. She also fears her husband’s family, because she will be seen as having converted him.

79    It follows that the wife’s claims, as viewed by the Tribunal, were three-fold:

(1)    If she returned to India she would be persecuted by her own family, by reason of her conversion to the Jehovah’s Witness faith.

(2)    As a Jehovah’s Witness in India, she would not be able to practise her religion free of harassment, persecution and prosecution.

(3)    Her husband’s family would cause her to fear harm because of her having been seen to have converted him to her religion.

80    The Tribunal noted the submissions made by the wife’s representative, that the very nature of being a Jehovah’s Witness involves evangelical-style preaching which would result in the wife facing harm by simply practising her religion.

81    Reference was made by the representative and by the Tribunal in its decision record to country information regarding attacks and anti-conversion laws in India.

82    In its discussion of country information, the Tribunal dealt directly with Jehovah’s Witnesses in India, as well as the question of sexual harassment of women and domestic violence in India, especially in Punjab. In this context, it also dealt with the question of relocation, noting that the Department of Foreign Affairs and Trade (DFAT) had assessed that internal relocation may be a viable option for people in Punjab seeking to avoid certain types of mistreatment. New Delhi, in particular, it noted, is a popular destination for many people from Punjab seeking to improve economic opportunities and relatively greater social freedoms.

83    The Tribunal also dealt with the treatment of returnees to India and noted that DFAT was not aware of any credible reports of mistreatment of returnees by Indian authorities, including failed asylum seekers.

84    The Tribunal then turned to making its findings on whether or not the wife will be at a real risk of significant harm if returned to India.

85    The Tribunal noted that the Full Court of this Court has held that the “real risk” test imposes the same standard as the “real chance” test applicable in the assessment of a “well-founded fear” in the s 36(2)(a) Refugee Convention definition.

86    In Minister for Immigration and Citizenship v SZQRB (2013) 210 FCR 505 at [246]; [2013] FCAFC 33, Lander and Gordon JJ expressed the view that the “real risk” test stated in s 36(2)(aa) was the same as the “real chance” test applicable in respect of s 36(2)(a). Their Honours said the question was whether there was a “real chance” that the non-citizen would suffer significant harm if returned to their country.

87    It is not clear exactly what Besanko and Jagot JJ held in their joint judgment in SZQRB. At [297], their Honours said that, for the reasons given by Lander and Gordon JJ, the assessment made in the International Treaties Obligations Assessment was not made in accordance with law because the assessor failed to apply the correct standard of proof to the issue of whether there was a real risk that the applicant would suffer significant harm and because the assessor failed to observe the requirements of procedural fairness. Perhaps it can be taken that their Honours in saying that also adopted the “real chance” test.

88    The fifth member of the Court in SZQRB, Flick J, at [342], expressed concurrence with the reasons of Lander and Gordon JJ and with the orders their Honours proposed.

89    It may be said then that despite the observation made by Perram J in Anochie that the tests are different but the results may be the same, the Court must proceed on the basis that the real risk and real chance tests are the same. No authority of the High Court has ruled otherwise or suggests otherwise.

90    Because of the adoption of the “real chance” test, the Tribunal also observed that what was said by Mason CJ in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379; [1989] HCA 62 about the expression “a real chance” was also relevant, namely that it clearly conveys the notion of a substantial, as distinct from a remote, chance of persecution occurring, even though it may be less than a 50% chance of persecution occurring. It is noted that this was a discussion of persecution for the purposes of s 36(2)(a). Nonetheless, the same concept of a substantial, not remote risk would appear relevant to an assessment of real risk for s 36(2)(aa) purposes.

91    The Tribunal properly noted that there was no evidence before the Tribunal that the wife had been subjected to adverse treatment in India that would constitute persecution, because she converted after arriving in Australia. The Tribunal accepted that it was not necessary to prove “persecution” in the past in order to be able to demonstrate a well-founded fear. This language is a little loose as here the question is not a s 36(a) “well-founded fear” one, but a real risk of suffering significant harm.

92    The Tribunal then proceeded with its assessment on the basis that the wife was a member of the Jehovah’s Witness faith and “would likely to seek to proselytise, in line with her religious beliefs, if she were to be returned to India”. The Tribunal then properly considered the question of real risk of significant harm, as required by the Act.

93    The Tribunal considered there was no indication that family had threatened to harm the wife; only that she should stay away from them and that she was “dead” to them.

94    The Tribunal accepted that in India and in Punjab in particular, the family’s honour may be considered diminished by the wife’s religious conversion. But the Tribunal considered that, based on her lack of contact with her family in recent years, she would be likely to stay away from them, thereby limiting any adverse effect on her family’s honour.

95    The Tribunal did not consider the husband’s position to indicate he was threatened with significant harm. The Tribunal may be taken to have made an implied, if not express, finding to the effect that he was not.

96    The Tribunal accepted that in either of the villages of the wife or husband, were they to proselytise, religious intolerance may result in a “reaction” of the community. The Tribunal accepted that:

The very nature of the practice of evangelising by knocking on the doors of strangers puts a Jehovah’s Witness at risk of harm each and every time he or she engages in such conduct.

97    The Tribunal accepted that on the information before it, there was a “real chance the review applicant would suffer a degree of social ostracism and discrimination, which would include verbal abuse and harassment from conservative-minded Hindus if they came to know that she had been a Hindu and had changed her religion and become a Jehovah’s Witness”.

98    The Tribunal then went on to say (emphasis added):

However, the information does not indicate or support a finding that the chance of her facing significant harm for those reasons and in those circumstances is more than remote. The Tribunal has had regard to the reports of apparent increased tolerance of Witnesses in India disseminated by the Jehovah’s Witnesses themselves. This tolerance is particularly prevalent in large cities, where reports indicated people were more progressive.

99    From this it should be concluded that the Tribunal did not find that the wife would suffer significant harm of a s 36(2A)(a)-(e) type.

100    At [76], quite expressly, the Tribunal referred to independent country information and concluded that, in its view, the available independent information did not support a finding that there is a real risk of the wife suffering significant harm for reasons of her practice of inviting strangers to have a conversation about religion in an attempt to persuade them of the correctness of her beliefs, or simply because she is, and identifies as, a Jehovah’s Witness.

101    Having so found, the Tribunal, at [77], immediately made reference to the wife’s submissions concerning anti-conversion laws in some Indian states which are intended to prohibit conversion of individuals in India through force or fraudulent means.

102    The Tribunal said that the wife converted outside of India in Australia and so her conversion would not fall within the purview of those laws.

103    But, at [78], the Tribunal proceeded expressly to countenance the circumstances of the wife, if she were to proselytise in some such states. The Tribunal may be taken to have accepted that, if the wife were to proselytise in such states, she could fall foul of anti-conversion laws. However, the Tribunal considered that she could “relocate to avoid the effect of these laws”. I infer the Tribunal thereby accepted that significant harm of a defined s 36(2A) type could be suffered by the wife were she to proselytise in one of the six states, but then proceeded to consider whether the real risk of significant harm would be avoided if she avoided doing so in those six states, that is, by relocating.

104    The Tribunal further rejected the submission made on the wife’s behalf that there was a real risk of her facing extreme unemployment, homelessness and poverty as a woman in India. The Tribunal noted that her marriage to her husband, her language ability, her employment history and education suggested otherwise.

105    The Tribunal also noted submissions made on behalf of the wife that she would face “degrading treatment” and that she might be forced to undergo medical treatment without her consent and contrary to her religious beliefs. The Tribunal found, assuming that forced medical treatment would be undertaken without her consent only for a medical or therapeutic necessity, this would not constitute inhuman or degrading treatment.

106    The Tribunal did not accept that the evidence about the availability of medical care and the alternatives to blood transfusions, as well as a lack of awareness of the beliefs of Jehovah’s Witnesses with respect to medical treatment, supported an argument of forced medical treatment.

107    The Tribunal made it clear that it did not consider there was any relevant deprivation of economic, social and cultural rights that constituted inhuman or degrading treatment. Nor did the lack of availability of certain medical treatments amount to significant harm.

108    Ultimately, the Tribunal considered that, “to the extent that the [wife] faces any risk of harm”, this could be ameliorated by her relocation to another part of Punjab, or another part of India. The Tribunal said at [83]-[85]:

… [I]t would be reasonable for the [wife] to relocate in the circumstances that she is an educated, married woman. She has the protection of her husband. She and her husband speak languages most widely spoken throughout India, being Punjabi and English.

As discussed with the applicants at the hearing, India is a populous country with no central registration or national identification system. The chances of the applicants being pursued or located by a family member, relative or community member from their home areas appears to be remote and far-fetched.

While some level of tracing could be done through the Jehovah’s Witness communities, the Tribunal notes that there are over 600 congregations across India. There is nothing to indicate to the Tribunal that a family member, relative or community member would be so aggrieved by the applicants’ return to India, despite their settling in another place, they would seek to make these efforts to locate the applicants. The applicants’ claims in this regard are all based on speculation and … there is no clear evidence to indicate that family members, relatives or community members from their home areas would actively take steps to locate them and subject them to significant harm outside of their own villages.

109    I should observe here that the Tribunal made these observations about relocation only “to the extent” that the wife faces any risk of harm. As I have pointed out above, the Tribunal did not consider that any real risk of significant harm existed so far as family members, relatives or community members from the appellants’ home areas and beyond were concerned. So these further observations seem, strictly speaking, to be redundant in the proper application of s 36(2)(aa).

110    The Tribunal then specifically turned to the question of the anti-conversion laws that exist in six states, but do not exist in Punjab and 22 other states. Notably the Tribunal said, they do not exist in Haryana or Delhi or other states where Punjabi is particularly prevalently spoken, and to which the appellants could reasonably relocate.

111    In the particular circumstances in which the Tribunal made these findings, I take the Tribunal to have found, as I noted above, that if the appellants were to find themselves in one of the six states with anti-conversion laws (and so be located there), they may face a real risk of significant harm, of one sort or another, but that, in such an event, both the wife and husband could reasonably relocate to other parts of India to avoid such harm. As a result, they would not satisfy the s 36(2)(aa) complementary protection criterion.

112    In Minister for Immigration and Border Protection v SZSCA and Another (2014) 254 CLR 317; [2014] HCA 45, by reference to earlier authority including Appellant S395 and SZATV v Minister for Immigration and Citizenship and Another (2007) 233 CLR 18; [2007] HCA 40 (Gummow, Kirby, Hayne, Callinan and Crennan JJ), French CJ, Hayne, Kiefel and Keane JJ said of the relocation question (as it arose in the s 36(2)(a) context) at [25]:

The factum upon which the principle of a relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm. In this matter it was found by the Tribunal that Kabul was such a place. By analogy with the internal relocation principle, given the existence of a place within his country of nationality where the respondent would have no well-founded fear of persecution, it could not be concluded that he is outside Afghanistan and unable to return to that country owing to a well-founded fear of persecution if it could reasonably be expected that he remain in Kabul and not travel outside it. As in SZATV, it is the question of what may reasonably be expected of the respondent which must be addressed.

113    While the Court was there addressing the question of relocation in a s 36(2)(a) context, I consider what their Honours said is relevant to the way s 36(2B)(a) is applied. On that basis, the Tribunal, in my view, properly asked whether it would be reasonable for the wife to relocate to an area of India where there would not be a real risk that she would suffer significant harm from proselytising, rather than locate in one of the six states where such harm might be suffered. The Tribunal concluded that if she was not located in any of the six states that have anti-conversion laws she would not suffer any real risk of significant harm. The Tribunal simply applied the statutory criterion in s 36(2B)(a). That finding seems to me fairly to have been open to the Tribunal. It was not a finding that required the wife to suppress an attribute of her religion. Unlike in Appellant S395 and BBS16, the appellants could freely practise all attributes of their religion in India outside the six states. The risk of harm from proselytising was not a generalised one. I do not consider that that finding is affected by any jurisdictional error.

114    Having so found, I nonetheless consider that the judge in the Circuit Court did make some errors in his analysis of the Tribunal’s decision.

115    For example, as alleged in particular (a) of the ground of appeal, it would appear from the way the Tribunal approached the evidence before it, that the wife did raise the prospect that potentially she might proselytise across India as a Jehovah’s Witness. It must be said, however, the evidence of her doing so was not strong and was raised more as a theoretical possibility.

116    Whether or not it may be said that the judge erred by concluding that the decision in Appellant S395 did not apply in relation to complementary protection, as I have set out above, I consider the Tribunal did approach the question of the application of s 36(2)(aa) criterion correctly. On the facts, Appellant S395 was not on point.

117    I do not, however, consider that the primary judge erred by concluding that the Tribunal was not required to assess the reasonableness of the wife and husband refraining from visiting states with anti-conversion laws having regard to the attributes of their religion. The application of the relocation exception, as I have pointed out, invites consideration of whether it would be reasonable for the appellants to relocate to an area of the country where there would not be a real risk that they would suffer significant harm. The Tribunal correctly adopted and applied the statutory criterion. No error is thereby revealed in the judge’s dismissal of that contention.

118    Similarly, I do not consider it has been demonstrated that the judge erred by concluding that the Tribunal did not properly determine whether reasonableness was present or failed to conclude that it was unreasonable for them to modify their conduct in refraining from visiting the states with anti-conversion laws. The Tribunal, as I have said, correctly adopted and applied the statutory criterion in s 36(2B)(a).

119    Put another way, the Tribunal was entitled to be satisfied that there were no substantial grounds for believing that, as a necessary and foreseeable consequence of the appellants being removed from Australia to India, there was a real risk they would suffer significant harm, and the judge did not err in so concluding.

120    Once the Tribunal, on the evidence, reasonably accepted that the wife and husband need not proselytise in the six states with anti-conversion laws, and thereby avoid exposing themselves to any harm in those states that might constitute significant harm, and could still practise their religion as Jehovah’s Witnesses freely throughout the other 23 states of India, then no question of significant harm could arise for the purposes of the Act.

121    For these reasons, the appeal should be dismissed.

Conclusions and Orders

122    For the reasons given above, the Court orders:

(1)    The appeal be dismissed.

(2)    The appellants pay the costs of the first respondent, to be assessed if not agreed.

Associate:

Dated:    14 June 2018