Ghosh v Minister for Immigration & Multicultural Affairs [2000] FCA 314

FEDERAL COURT OF AUSTRALIA

Ghosh v Minister For Immigration & Multicultural Affairs [2000] FCA 314 RABI GHOSH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 1037 of 1999 LINDGREN J 15 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1037 OF 1999

BETWEEN: RABI GHOSH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 15 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1037 OF 1999

BETWEEN: RABI GHOSH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 15 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT (ex tempore)

Introduction 1 The applicant ("Mr Ghosh") applies under s 476(1) of the Migration Act 1958 (Cth) ("the Act") for review of a decision of the Refugee Review Tribunal ("RRT") dated 18 August 1999 affirming a decision of a delegate of the respondent ("the Minister") not to grant a protection visa. Section 36 of the Act provides, in effect, that there is a class of visas to be known as protection visas and that a criterion for the grant of a protection visa is that the applicant for it be a non-citizen in Australia to whom Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). 2 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 Mr Ghosh's case is that he is outside the country of his nationality, India, and is unwilling to return to it because of a well founded fear of being persecuted for reason of political opinion. He claims that as an active supporter of the Bharatia Janata Party ("BJP"), he fears harm from the Congress Party, from the West Bengal Communist Party and, since the BJP came into governmental power in 1998, from a rival faction within the BJP itself. Procedural background 4 Mr Ghosh arrived in Australia on 9 April, 1997 on an Indian passport issued on 28 August, 1991 and due to expire on 27 August, 2001, and on a visitor's visa issued on 4 April, 1997 valid until 8 May, 1997. By an application dated 23 April, 1997 and received in the Department of Immigration and Multicultural Affairs on 30 April, 1997, Mr Ghosh applied, through Leitch, Hasson & Dent, solicitors and migration agents, for a protection visa (visa subclass 866). A delegate of the Minister refused the application on 10 May, 1997. On 13 June, 1997, Mr Ghosh applied to the RRT for a review of the delegate's decision. The RRT conducted a hearing on 23 March, 1999. As noted above, on 18 August, 1999 it affirmed the delegate's decision. Mr Ghosh filed the present application for review of the RRT's decision in this Court on 14 September, 1999. The decision of the RRT 5 The RRT commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of "refugee". It then turned to consider Mr Ghosh's "Claims and Evidence". 6 The RRT noted Mr Ghosh's claim that he was an active member of the BJP and had been the General Secretary of the BJP Youth Front of the Habra Thana Community of West Bengal and was one of the organisers of the BJP nationwide movement for the restoration of Hinduism in India. The RRT examined in detail Mr Ghosh's claims relating to his involvement in political activity. He claimed that he had led processions and demonstrations, mobilised people, distributed leaflets and made speeches. For example, he advocated destruction of the well-known "Babri Mosque". In fact, on 6 December, 1992 Hindu fundamentalists destroyed the Babri Mosque and began construction of a Hindu temple. The destruction was instigated by the BJP and affiliated organisations. In the ensuing violence, 1,200 deaths and 4,000 injuries were recorded. 7 According to Mr Ghosh, the Indian Congress Party and the West Bengal Communist Party had made false claims against him. He asserted that these parties and Muslim community members tortured his own party's activists both physically and mentally. He claimed that law enforcement authorities arrested many of his party's members throughout the nation and assaulted their peaceful demonstrations with teargas and gunfire. He claimed that during a police assault on a peaceful demonstration on 1 February, 1997, a pedestrian was shot and later died in hospital. 8 He stated that the police made a formal complaint against, inter alia, Mr Ghosh and fellow BJP members, accusing them of murder and of demolishing the mosque. He claimed that some of his political colleagues were arrested and are in fact still in custody. 9 Mr Ghosh claimed that since the BJP came into power in India in 1998 (this was after Mr Ghosh had come to Australia as noted earlier) the BJP had been divided into two factions: one led by the present governing faction and the other to which Mr Ghosh belongs. In essence, Mr Ghosh's claim is that his faction is true to the ideal of Hinduism as one integrating national religion for India whereas the faction in power has become more moderate and, in the view of his own faction, has broken the BJP's promise to "desecularise" India and to establish Hinduism as the national religion. 10 Mr Ghosh claims that the faction having governmental power has ordered the law enforcement authorities to arrest all "accused factional BJP activists" who were involved in the politically motivated murder and demolition of the mosque cases in his locality. 11 What I have said above is enough to indicate the general factual background to the case as recounted by the RRT. 12 While accepting that Mr Ghosh had been an active member and local organiser of the BJP, the RRT thought that he did not have a well founded fear of persecution for political opinion. In relation to the alleged threat of persecution from the Congress Party and the West Bengal Communist Party, the RRT noted that Mr Ghosh's own party, the BJP, is now part of the coalition government in power in India. The RRT was not persuaded that upon return to India Mr Ghosh would face persecution arising out of the destruction of the Babri Mosque. It noted evidence that only two per cent of the riot related cases registered with the police had been tried and only eight of the 42 cases tried have resulted in conviction. 13 The RRT referred to the fact that Mr Ghosh had obtained an Indian passport in his own name and had been allowed to leave India on it. The RRT thought that this told against a suggestion by Mr Ghosh that the authorities were seeking him. 14 The RRT concluded as a matter of fact that it was highly unlikely that Mr Ghosh would be pursued if he were to return. (Of course, if the law in question were one of general application such as a law against destruction of property, it may well be that in any event a pursuit of a prosecution of Mr Ghosh would not be persecutory.) 15 There was some documentary evidence before the RRT said to support Mr Ghosh's case that he was being sought by the police. This included what appeared to be a "charge sheet" and a letter dated 14 May, 1999 from Mr Ghosh's advocate which referred to the charge sheet and stated that it would be unsafe for Mr Ghosh to return to India for a period of two years from 14 May, 1999. The RRT noted, however, evidence before it of "the easy availability of forged court and police documentation in India". It also noted discrepancies and odd aspects of the documents relied on by Mr Ghosh. The RRT placed little weight on the documents. Grounds of the appeal 16 Mr Ghosh relied upon the "error of law" ground provided for in s 476(1)(e) of the Act. He made written submissions and in addition made brief oral submissions through an interpreter yesterday. No matter how one regards the matter, what Mr Ghosh is seeking from the Court is a review on the merits. He simply states that the RRT erred in fact. He states that he submitted "an enormous amount of documentation" to the RRT and a statutory declaration and gave oral evidence, all of which should have persuaded the RRT that he was a refugee within the Convention definition. 17 But error of fact, if it existed (I do not imply that it did), is not a ground of review permitted to the Court under the Act. The RRT applied the correct legal test for determination of the status of "refugee" under the Convention and I have seen no error of law in its Reasons for Decision. Conclusion 18 The orders of the Court are that: 1. The application be dismissed. 2. The applicant pay the respondent's costs.