FEDERAL COURT OF AUSTRALIA "B" & "C" v Minister for Immigration & Multicultural Affairs [2000] FCA 1751 MIGRATION – Protection visa – whether Tribunal erred in law in application of the "real chance" test – whether an application for review on the merits Migration Act 1958 (Cth) ss 476(3)(e) and 476(2)(b) Minister for Immigration v Singh (2000) 98 FCR 469 - cited Najarian v Minister for Immigration [2000] FCA 933 - cited Randhawa v Minister for Immigration and Multicultural Affairs (1994) 52 FCR 437 - cited "B" & "C" v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS AND THE REFUGEE REVIEW TRIBUNAL V 369 of 2000 JUDGE: MERKEL J DATE: 1 DECEMBER 2000 PLACE: MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 369 OF 2000 BETWEEN: "B" & "C" APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: MERKEL J DATE OF ORDER: 1 DECEMBER 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT the application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 369 OF 2000 BETWEEN: "B" & "C" APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS FIRST RESPONDENT THE REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT JUDGE: MERKEL J DATE: 1 DECEMBER 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicants, who are citizens of India, arrived in Australia on 5 October 1994. The first applicant is a Sikh from the Punjab. After his arrival in Australia he applied for a protection visa on the ground that he feared being persecuted by the authorities in India because of his past support for the Khalistan Liberation Front ("KLF"). The second applicant is the first applicant's wife and she relies on her spouse's claims as she has no separate claims of her own. 2 After the delegate of the Minister refused the applicants' applications for protection visas, they applied for the review of the decision by the Refugee Review Tribunal ("the RRT"). On 10 February 1997 the RRT determined that it was not satisfied that the applicants are refugees as defined in the Convention Relating to the Status of refugees 1951 as amended by the Protocol Relating to the Status of Refugees 1967 ("the Convention"). Accordingly, the RRT affirmed the decision of the delegate of the Minister not to grant protection visas. 3 Subsequently the applicants commenced proceedings in the original jurisdiction of the High Court seeking writs of prohibition and mandamus in respect of the decision of the RRT. On 16 March 2000 Hayne J remitted the matter to the Federal Court. 4 The first applicant claimed that the authorities were aware of his support for the KLF, which is a militant secessionist group seeking a Sikh state in the Punjab and, as a consequence, he has a well founded fear of being persecuted for reasons of religion, political opinion or membership of a particular social group. He claimed that since late 1987 he had been associated with the KLF and had assisted KLF members from time to time by allowing them to stay at his residence for short periods. He also claimed that, as from October 1988, police regularly visited his house seeking to interrogate him. As a consequence, the first applicant went to live in New Delhi and therefore was able to avoid being apprehended by the police. 5 The first applicant left India for Greece in October 1999 and worked in Greece for over three years until he was caught, detained for a month, and returned to India on a travel document issued by the Indian High Commission. He did not have any difficulties with the at the airport on his return to India because he was not on any wanted list. The first applicant lived in New Delhi after his return and did not have any difficulties with the authorities. He claimed that that was because the police were unaware of his whereabouts. 6 After payment of a bribe the first applicant was issued with a new passport in January 1994 and departed for Australia in October 1994. 7 Evidence was adduced that both before and after he arrived in Australia, police have continued to visit the first applicant's home in India to ask about his whereabouts. 8 The first applicant also claims he cannot return to his village because he fears retribution by the person who is now the equivalent of the Mayor of that village by reason of his past involvement with persons associated with the KLF. 9 The first applicant's brother-in-law gave evidence at the hearing of the RRT in December 1996 that the situation in the Punjab had not returned to normal and that no one who had been involved in the KLF could return and live in safety. 10 Medical evidence was also given on the first applicant's behalf to the effect that he is suffering significant stress and depression at the prospect of being returned to India. 11 The RRT accepted the first applicant's evidence at the hearing, which it stated was generally consistent with his written claims. Accordingly, it accepted that the first applicant had a subjective fear of persecution should he return to India. However, in determining whether the fear was objectively well founded, the RRT considered the first applicant's claims in the context of "relevant country information". The RRT considered a number of reports, dating from the second half of 1992, relating to the situation in the Punjab. It concluded from those reports that had been a rapid decline in the level of militant activity in the Punjab and that conditions in the Punjab have generally improved. Notwithstanding those improvements the RRT appeared to accept that the persons who were still at risk of action against them by the authorities, were those who had an established history of connection with, or significant organisational or leadership roles in, terrorist or other militant organisations such as the KLF. 12 The RRT observed that the first applicant had not been involved in criminal, terrorist or violent activity and did not hold any leadership or organisational role in the KLF. Rather, his involvement with the KLF "was very low key and occurred over a period of only a year or so more than eight years ago". The RRT also observed that the first applicant was never arrested, detained or mistreated by the authorities and was able to depart from and return to India without any difficulty from the authorities. The RRT concluded that even though the authorities may have continued asking about the whereabouts of the first applicant in spite of his long absence from India, this interest was not indicative of a real chance of the first applicant being persecuted because of his past involvement in the KLF. In the result, the RRT concluded that should the first applicant return to India there was no real chance that he would be persecuted by the authorities, now or in the reasonably foreseeable future, because of his involvement in the KLF or because of a political opinion imputed to him by reason of being a Sikh. Consequently, the RRT concluded that the first applicant's subjective view of persecution was not objectively well founded. In the alternative, the RRT found that, in any event, the first applicant could live in safety in some part of India outside of the Punjab, which has been the centre of the separatist activity of the KLF. 13 The grounds of review relied upon by the applicant included: · the RRT failed to take into account certain particular factual matters said to be relevant considerations; · the RRT's reasoning was unreasonable in that it did not accept evidence favourable to the applicants 14 There are substantial difficulties in the path of the applicants in relation to each of the above grounds. Failing to take into account relevant considerations and exercising a power that is so unreasonable that no reasonable person could have so exercised the power are not grounds of review available in the Federal Court in a review under Pt 8 of the Migration Act 1958 (Cth): see ss 476(3)(e) and 476(2)(b). The fact that the matter has been remitted from the High Court may not overcome that difficulty. 15 However, I have not found it necessary to decide the present matter on the basis of jurisdiction. The gist of the decision of the RRT was that, although it accepted that the fear held by the first applicant might have been well founded in the past, the situation in the Punjab had changed to such an extent that it was now no longer well founded. In reliance upon country information the RRT, as the tribunal of fact, determined that there was no real chance of persecution of the first applicant, by reason of past or imputed association with KLF, if returned to India. Although there was some evidence to the contrary effect, as has been made clear in Minister for Immigration v Singh (2000) 98 FCR 469 and Najarian v Minister for Immigration [2000] FCA 933 the failure of the RRT to explain why it had not accepted or acted upon certain material which was contrary to its findings is not a ground of reviewable error. 16 Counsel for the applicants contended that: · the RRT accepted that the first applicant had been involved with persons involved in a secessionist group; · the first applicant had continued to be sought by police; · a local government official had a direct interest in targeting the first applicant. Counsel then submitted that the RRT had failed to explain or address why the first applicant did not fit the profile it had accepted in respect of a person at risk of persecution in India. That submission is not soundly based. As explained above, the RRT addressed that question and explained why it had found against the first applicant in relation to it. 17 The findings of the RRT were open on the material before it and no error of law has been demonstrated in relation to the manner in which those findings were made. Thus, assuming without deciding, that unreasonableness or failing to take into account relevant considerations were grounds of review in the present matter, neither ground has been made out. 18 It was also submitted that the RRT addressed the question of whether the first applicant would be persecuted, rather than whether there was a real chance of him being persecuted, if he returned to India. I do not accept that the RRT asked the question suggested by counsel for the first applicant. The RRT posed and answered the questions it was required to address as a matter of law. In reality, the review sought by the applicants is a review on the merits rather than a review on the basis of any error of law or any other reviewable ground available under Pt 8 of the Migration Act 1958 (Cth) or under s 75(v) of the Constitution. 19 There was a further difficulty in the present matter. Even if, contrary to my conclusion, some error were demonstrated in relation to the application of the "real chance" of persecution test, the RRT did not err in respect of the relocation test, as enunciated in Randhawa v Minister for Immigration and Multicultural Affairs (1994) 52 FCR 437 at 443, in determining that the first applicant could safely relocate outside of the Punjab. 20 Accordingly, the application is to be dismissed with costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Merkel. Associate: Dated: 1 December 2000 Counsel for the Applicant: Mr TV Hurley Solicitor for the Applicant: Erskine Roden & Associates Counsel for the Respondent: Mr C Gunst QC Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 1 December 2000 Date of Judgment: 1 December 2000