D'Souza v Minister for Immigration & Multicultural Affairs [1999] FCA 1849 (17 December 1999)

Last Updated: 22 February 2000

FEDERAL COURT OF AUSTRALIA

D'Souza v Minister for Immigration & Multicultural Affairs [1999] FCA 1849

BENET ANTHONY D'SOUZA & ANOR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1010 OF 1999

EINFELD J

17 DECEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1010 OF 1999

BETWEEN:	BENET ANTHONY D'SOUZA & ANOR Applicants
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EINFELD J
DATE:	17 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 The applicant seeks judicial review of a decision of the Refugee Review Tribunal made on 12 August 1999. The Tribunal affirmed the decision of the delegate of the Minister to refuse the applicant, his wife and at that time, one child, refugee asylum. I am informed that since the hearing before the Tribunal the applicant and his wife have had another child, also a son, so that if they do not get refugee status, the four of them will be deported back to India.

2 The applicant and his wife and the first child are citizens of India who arrived in Australia on 19 April 1998. They subsequently lodged combined applications for asylum and have come to this Court now to seek the limited form of judicial review of Tribunal decisions permitted under the Migration Act 1958 (Cth). The applicant has been represented by counsel under the recently concluded court-appointed legal assistance protocols, and the Court expresses its appreciation of counsel's very considerable assistance in the matter.

3 An amended application has been permitted to be filed in Court complaining that the decision of the Tribunal reflects errors of law under sections 476(1) and 430 of the Act, including that there has been a failure by the Tribunal to publish and identify the evidence supporting its findings on material issues.

4 The first claim of the applicants was that the Tribunal erred in its consideration of the nature of the persecution of which the applicants were complaining. I think that there was indeed some confusion in the matter but it was not really the fault of the Tribunal, rather that it was not clear what the applicants were actually attempting to claim. Part of this problem appears to have been a language difficulty and part of it was because the material presented to the Tribunal was fairly sparse.

5 It seems that the first applicant was, and is now, alleging that he and his family had suffered at least three different types of persecution, and that these incidents would revisit themselves upon him and his family now if they were forcibly returned to India. He is or was a Christian in that he followed the Catholic faith and attended Mass in India. At a certain time, relevantly for present purposes before 1996, he had been an active member of an organisation called Shiv Sena, which appears to be a fairly extreme right wing Hindu nationalist and fundamentalist party or sect. In about the middle of 1996 when he and his family were going to church on two particular consecutive Sundays, he complains that they were harassed by Muslims, the inference being that the harassment occurred by reason of their adherence to Christianity.

6 It is certainly true that in recent years there has developed in India a certain anti-Christian violence which led amongst other things to some very serious incidents in which, amongst others, some Australian Christian missionaries or supporters were killed. While recognising that there has been some violence towards Christians in recent years, the Tribunal concluded that this development was not necessarily or only generated by Muslims even though it was certainly antagonistic to Christians. The Tribunal found that the Indian Government, which in recent years has been dominated by a Hindu nationalist party, has been tolerant towards religious freedom and has stepped in to prevent anti-Christian and other religious violence. The overwhelming inference was that these moves would protect the applicant from further harassment. Thus on the possibility that the applicant would, on return to India, face persecution as a Christian at the hands of Muslims, the Tribunal has, it seems to me, committed no error of law either in relation to the various provisions of section 476 nor in any failure to comply with the indicia of section 430.

7 The second possible assertion made was that the applicant may have suffered some persecution or harassment at the hands of Muslims on the basis of his adherence to the Shiv Sena party. It is more than a little doubtful this case was put to the Tribunal at all - if it was, it was put fairly peripherally. The Tribunal did not directly confront the question of whether the applicant was harassed by Muslims because of his Shiv Sena adherences, largely on the basis that the applicant had not made any claims in this regard. But I am prepared to proceed on the basis that the matter was before the Tribunal because the Tribunal does seem to have dealt with it, even if only adjectivally to other findings.

8 The important finding of fact in this regard was that the anti-Christian violence had largely come from Hindu extremist groups such as the Shiv Sena Party itself. Thus if he had been discriminated, harassed or persecuted in this regard by reason of his Christian beliefs, it is more likely that the offending conduct would have come from Hindus rather than from Muslims. Harassment or persecution by Muslims would more likely have been on the basis that he was a Hindu or a Hindu supporter, not a Christian.

9 So far as concerns the applicant as a Hindu partisan, in that he was once a member and supporter of the Shiv Sena Party, there should be two observations. One is that he has severed those associations some years ago, and has not re-established them in any way. In these circumstances, if there is to be Muslim-Hindu violence, and regrettably this does arise in India from time to time, it does not seem likely that it would be directed towards him when his active association with the Hindu movement is now many years old.

10 The second comment is that although the Tribunal did short circuit these matters somewhat, and that it would have been preferable if it had separated them out and come to distinct clearcut findings, I think it is quite clear, when you take the reasons for judgment as a whole, that the reasons are there. The Tribunal in effect found that the risks to the applicant of an anti Christian attack were more real because it would be unlikely to come from his own people. Whereas the applicant's claims were divided into two when perhaps they might more preferably have been divided into three, nevertheless the reasons given ground the finding that there is not more than a remote possibility of further harm from Muslims to the applicant as a Christian. In my view the Tribunal was therefore correct in legal terms in deciding that the applicants face little real possibility of harm from Muslims.

11 That is not to say of course that in general riots and in general uprisings it is not possible that the applicant and his family may suffer because regrettably the major sufferers in such events are usually innocent civilians. But the question here is whether they would suffer for a Convention reason, which in this case must mean either because of his Catholicism or because of his past Shiv Sena association. In these regards as well, I have not found anything in the Tribunal's reasons which call for any intervention by way of judicial review.

12 The applicants took the Tribunal to task for its finding that the applicant survived for two years after the 1996 harassment apparently because he was able to move around India. This conclusion was said to activate considerations that arise from the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437 which generally speaking was to the effect that if safe relocation of persons within their own country is possible, they will normally not be entitled to refugee status. The general principle is that if a person can safely relocate to a place within their own country, there is no warrant for third party resettlement. In other words, as is eminently sensible, third party asylum should only be considered when there are no other alternatives in the home country.

13 The applicant did say that he sometimes moved to other parts of India to visit his family in Delhi and elsewhere, and from time to time came back to the various places from which he had originally emanated. But in my opinion this case is not about relocation and it does not require the application of the principles to emerge from Randhawa. There is nothing in the Tribunal's consideration of the relocations which the applicant undertook which can be said to have been attended by any error of law.

14 The third possible claim is that he suffered persecution from the Shiv Sena Party. This proposition is the most serious, I think, of all the claims. The position here is that apparently in January and February 1996 the Shiv Sena Party, through its representatives, had him arrested by the police and imprisoned and tortured. The events occurred after he had become engaged to his wife and against the background that he had decided to move on in his political and religious beliefs and turn his back on the extremist policies and practices of the party which had previously attracted him. It appears that the applicant was held in gaol for a little time and eventually released. There is some debate as to how he was released but his claim seems to be that his release was obtained by a lawyer and that he was never charged and no court proceedings were ever taken.

15 The Tribunal found that when the prosecution could not sustain the case against him, he was released by the court, as the Tribunal found, "after due process of law". This is perhaps somewhat of an overstatement about what occurred. I think the evidence established that he was released but it does not seem that there was much legal process associated with it. For that matter there does not seem to have been much legal process associated with his detention in the first place. The Tribunal then went on to consider whether he was released on bail organised by his lawyer and came to the conclusion that the applicant had fabricated this claim to bolster his case. For my part I cannot see how the addition of the bail matter bolstered the case at all and I cannot see why the applicant would have, as the Tribunal put it, fabricated the claim.

16 But in my perception, the matter appears to me to be completely irrelevant to the issues with which the Court is presently concerned. The Tribunal made a finding of fact that one reason why this occurrence should not be treated as anything which has long term harassment or persecution consequences is that he was able to operate his business either in the clothing trade or as a real estate agent during the period between his release from detention and his departure for Australia, and that during that time he had lived either in his own home or in identifiable places with members of his family. The Tribunal found it implausible that anybody who was seriously wanted by the authorities could remain at large and untouched in this manner for such a long period of time. It also supported this conclusion from the fact that the applicant was able to leave India for Australia legally, using his own passport in his real name, and that because of thorough Indian airport security checks, someone described as a wanted person could not pass through immigration without coming to the attention of the authorities.

17 In my opinion, all this material was completely irrelevant to the decision. The applicant never claimed that he was being sought by the authorities. What he was saying was that he was sought by the Shiv Sena Party who in one district had apparently been able to so control the police as to bring about his arrest and torture and beatings in prison. He did not suggest that the Indian government or any agency of Indian officialdom was seeking him, so that to that extent, as it seems to me, the Tribunal went off on a tangent which had nothing to do with the case. The simple claim that the applicant made was that he was arrested and mistreated by regional police at the instance of Shiv Sena, that Shiv Sena chose him because he had been a previous member of theirs and had deserted them, and that he was likely to suffer further persecution of this kind if he was returned to India.

18 The criticisms made of the way the Tribunal approached this claim were, first, that the Tribunal made no finding at all of the Convention ground that was being activated here, and second, that it failed to identify the findings which it made in real terms or the evidence which supported the findings, all in contravention of section 430. Although, as I have said, the Tribunal became diverted in its dealings with this matter into some significant irrelevancies, the fundamental factual findings involved general acceptance of his claim that he was arrested at the instance of the Shiv Sena as a former active member who was no longer showing any adherence to their philosophies or beliefs. What the Tribunal was impliedly saying was that, on the basis of the facts as given by the applicant which for present purposes the Tribunal was willing to accept, a spiteful act by a political party on a former member who has not declared the adoption of any other principles - and therefore cannot be imputed with a political opinion - but has merely decided not to renew his membership, did not represent any form of Convention-based persecution. So much was stated by the Tribunal which found no evidence of any direct action taken by Shiv Sena against the applicant or his family, that he was untouched for more than two years after the incident referred to, despite the fact that he was running a business and was living in his own home, and that he had himself apparently not been pursuing any political activities opposed to Shiv Sena.

19 Once again, the Tribunal's reasons were certainly sparse and its identification of the facts was limited but then the facts put forward were very limited. Although it is not a question for the Court which is not a fact finder, on the material presented by the applicant to the Tribunal looked at at its highest, it is difficult to see how any other view was open than that he was not likely to face persecution from this source on his return. If this one incident, serious though it was, was to represent some sort of evidence that upon his return to India it would be repeated against him and his family, once at least, more evidence of harassment and more identification that he was vulnerable because he now pursued a political opinion antagonistic to or at least different to the view of Shiv Sena would have been expected.

20 It seems to me that the implied finding of the Tribunal that the type of turbulence and turmoil that arises in India from time to time is unlikely to affect an individual who has not been seen for some years in the general political environment, and that it would be more likely to be centred on those who have more recently expressed views for or against the views of the advocates of violence, must be correct. In the circumstances, the Tribunal's finding that the applicant did not have a well founded fear of persecution on this basis cannot now be challenged in law.

21 Although I can sympathise with the position in which the applicants find themselves, it must be concluded that no grounds have been made out under the amended application and on the arguments put forward in this case for judicial review of the Tribunal's decision and the application will therefore be dismissed.

[APPLICATION FOR COSTS]

22 This case does not commend itself to me as one in which a costs order should flow. The applicant's case was arguable, the Tribunal's reasons were extremely limited and did not reveal clearly and without considerable examination what was really being found. The applicants have no money and have been helpfully represented by counsel in a pro bono capacity. I think it is inappropriate in the circumstances to visit them with an order for costs. There will be no order as to costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld.

Associate:

Dated: 17 December 1999

Counsel for the Applicant:	Mr G. T. Johnson
Solicitor for the Applicant:	Belen Oag Solicitors
Counsel for the Respondent:	Mr P. S. Braham
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 December 1999
Date of Judgment:	17 December 1999