Kaur v Minister for Immigration & Multicultural Affairs [2001] FCA 719

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration & Multicultural Affairs [2001] FCA 719 IMMIGRATION – Refugee Status – previous history of Applicant's de facto husband's wife and her brothers physically harming and verbally abusing her – whether situation involves a private dispute or constitutes persecution for a Convention reason – Relocation

Migration Act 1958 (Cth) s 476(1)(e) and 476(1)(g)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 applied Randhawa v Minister for Local Government and Ethnic Affairs (1994) 52 FCR 437 applied MOHINDER KAUR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 25 of 2001 CONTI J 14 JUNE 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 25 OF 2001

BETWEEN: MOHINDER KAUR

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE OF ORDER: 14 JUNE 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The Application be dismissed. 2. The Applicant pay the costs of the Respondent. 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 25 OF 2001

BETWEEN: MOHINDER KAUR

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: CONTI J

DATE: 14 JUNE 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT The Application for Review 1 Before me is an Application for Review against the decision of the Refugee Review Tribunal ("the RRT") made on 12 December 2000, whereby the RRT affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa because as in the case of the delegate, the RRT was not satisfied that the Applicant was a refugee within the Convention definition. The Applicant was not represented at the hearing before the RRT, nor at the hearing before this Court. It appears from the content of the Application for Review that the same was not drafted by a legally qualified person. 2 The form of the Application for Review states that the Applicant seeks review of the RRT decision on the following grounds (as literally so framed): (i) If the Applicant returns to India she will be persecuted due to her marriage with a person of a different caste and to give birth to an illegitimate child in accordance with India laws. (ii) The Applicant filed a statement in relation to her claim as a refugee and forwarded evidence, which was not considered by the Tribunal member without any justification; it is appealable in accordance with Section 476(1)(g) of the Migration Act. (iii) The Tribunal's decision was not made according to the United Nations Convention 1951 as amended 1967 Protocol (sic) related to the status of refugees where Australia has an obligation of being a member. (iv) The Tribunal misunderstood, misconceived and misconstrued the Applicant's (sic) claim. (v) The Tribunal failed to act according to substantial justice and the merits of the case were ignored by the Tribunal member. 3 Having regard to the content of the grounds for the Application for Review and the manner in which the Applicant presented her case before this Court, it is apparent that the same was not brought on the basis of s 476(1)(g) of the Migration Act 1958 (Cth). Whilst the Respondent has submitted that the Applicant has not identified properly any ground for review that is available in this Court, it seems to me, from the manner in which the Applicant presented her case, that she was contending that there was an incorrect interpretation of the applicable law in relation to what constitutes persecution for a Convention reason. Such ground of review could only be arguably advanced pursuant to s 476(1)(e) of the Act. The Applicant has submitted that she faces persecution for a Convention reason, as a consequence her being a member of a particular social group and/or by reason of her being of a particular religious belief. Factual Background 4 The narrative of this segment has been mainly extracted from the evidence which was recorded by the RRT as having been presented to it by the Applicant. The Applicant is a national of India of 31 years of age. The Applicant arrived in Australia on 13 March 1998 and on 15 December 1999 lodged an application for a Protection (Class XA) Visa with the Department of Immigration and Multicultural Affairs under the Act. Visa Class XA includes two sub-classes: 785(Temporary Protection), which is a temporary visa, and 866 (Protection), which is a permanent visa. The circumstances giving rise to her claim for refugee status are claimed to originate out of her fear of harm arising out of her de facto relationship with a Sikh man of another caste and on the ground of this man's political opinion. Thus, it is appropriate to give some background to her relationship with her de facto husband whose name is Gurmit, and to whom she has given birth to a child now more than one year of age. For the sake of the record, I should record at one that during the course of the Application being heard in this Court, the Applicant, in a response to a question that I asked of her, acknowledged that since the Tribunal hearing, she has been married in a Sikh temple located in Australia. Although her marriage is not officially recorded, she has been recognised within her circle of friends as being married. I asked the Applicant if there was any way that her marriage could be recognised in India. The Applicant responded that such was not possible for two reasons. First, there is difficulty with the fact that it is an inter-caste marriage and secondly, Gurmit has already been married once before. For the purposes of this Judgment, and without intending any offence to the Applicant, I will refer to her partner Gurmit as her de facto husband, as distinct from her husband, as I have no documentary evidence of their being officially married in Australia, and he has been referred to as such in the RRT's Decision below. 5 The Applicant and Gurmit have been friends since 1982. Despite the fact that they had fallen very much in love in relatively more recent times, both the Applicant's and Gurmit's families and neighbours did not approve of their relationship because the Applicant and Gurmit had themselves been neighbours. Gurmit's family had forced him to marry another woman in 1983, and from 1984 to 1988 the Applicant did not see him. From about 1988 to about 1990, the Applicant saw Gurmit about once every three or four months, but then the Applicant's parents learnt that they had been seeing one another, and consequently sent her to college in another State so as to hinder their continuing contact. In 1992, the Applicant trained as a nurse. It was not until after 1995, when the Applicant had finished her training as a nurse, that the Applicant and Gurmit began seeing each other again. The Applicant and Gurmit were only able to visit each other in parks and at the hostel where nursing friends of the Applicant were living. 6 Perhaps the most traumatic experience suffered by the Applicant by reason of her relationship with Gurmit occurred in India in 1997. On one occasion when she was changing buses, she was stopped by four men in a white van and told that something had happened the previous night to Gurmit. Although she acted cautiously with these men, they attempted to pull her into the van. She began to walk away quickly but was subsequently hit on the head with an unknown object and rendered unconscious. She was taken to the hospital in Ambala. She said that she did not recognise the culprits at the time of the attack but later, she found out that they were the brothers of Gurmit's wife. Gurmit was still apparently married to the woman identified in [5] above. The Applicant did not report this attack to the police because if her brother had found out about what had occurred he would have retaliated and matters would only have got worse in relation to the various family connections. The Applicant explained her injuries to her family and others by saying she was hurt in a road accident. The Applicant was certain that these men wanted to kill her because she and Gurmit had been seeing each other on a frequent basis. 7 The Applicant also referred to other occasions when she was dealt with adversely by other persons as a result of her relationship with Gurmit. The men who had attacked her in 1997 also threatened her verbally on other occasions. The attack in December 1997, however, was the only occasion when they physically harmed her. During 1988 Gurmit's wife sent a man to try and romantically court the Applicant. This man would often visit her outside the temple and tell her she was very beautiful and try to seduce her. On another occasion in 1995, Gurmit's wife actually came to the hospital in Chandigargh where the Applicant was working and told the Applicant's colleagues at the hospital that the Applicant "did not have a good character because she lives with my husband". In 1996 and 1997, when the Applicant's family were attempting to find a husband for the Applicant Gurmit's wife made derogatory statements to two prospective bridegrooms, thereby causing them to shun the Applicant. The Applicant also said that Gurmit's had wife told her that if the Applicant ever got married, she would wait until after the Applicant had given birth to her first child and she would inform the Applicant's husband and his family that she the Applicant was not of good character. 8 The Applicant gave further evidence to the effect that various persons in her then living area in India objected to her relationship with Gurmit by reason of the fact that persons in small villages do not marry one another. Although the RRT had some difficulty in determining whether or not the Applicant's problem was one of caste, the Applicant disagreed and explained that she was of lower caste than Gurmit. Although it was said to be different in Indian cities, problems as to caste were claimed to arise in a more acute way in the villages. 9 The Applicant also claimed that Gurmit "had [a] political background of being active [as a] member of separation of Punjab" (sic). As a consequence he was often sought for questioning by the authorities, and was detained by them on many occasions, but due to a lack of evidence, the authorities were unable to convict him. The Applicant argued that the authorities will not help her in her situation because of the information they supposedly hold that Gurmit had an active role in the political separation of Punjab. The Applicant acknowledged that her basis for stating that Gurmit was a member of the Punjab Separatist Movement was based only on rumour, and that Gurmit had been questioned by the authorities on merely a few occasions in 1984, and that was because his uncle was a terrorist. The Applicant also said that from 1992 to 1995, people in her local village had said that Gurmit had "gone underground" because he was a terrorist. When the Applicant asked Gurmit about this allegation, he told her that he did not have any such problems. As to Gurmit being questioned by the authorities on other occasions, the Applicant could only point to one such event in 1995, when she and Gurmit were travelling to Chandigargh. Because the Police were nearby, she claimed that Gurmit gave her a bag which he said contained armed weapons. 10 Although the Applicant could not point to any other occasion when Gurmit had been questioned by the authorities, she did state that when seeing him on many occasions after 1995, he had a somewhat worried look on his face. She feared that he may have been in trouble with the Police on those occasions. The Applicant was unaware as to whether Gurmit had ever been detained by the authorities. The RRT recorded the significant circumstance that Gurmit had obtained a passport in his own name and had left India legally on that basis. In the light of Country Information indicating the practice in India where security checks are made before passports are issued and passport holders are thus able to depart from India, such information demonstrated that Gurmit was not of adverse interest to relevant authorities when he left India. The RRT's Decision 11 The RRT expressed a lack of satisfaction that the Applicant had a well-founded fear of persecution for a Convention reason and found that she was not a refugee within the Convention definition. The findings and reasons for the RRT's Decision, the subject of the present review, may be summarised as follows: (i) The proposition advanced by the Applicant that her de facto husband Gurmit was being now sought by the authorities or would be so sought in the reasonably foreseeable future appeared to be inconsistent with Country Information that indicated that militancy and the political and human rights violations in Punjab have ameliorated increasingly since 1993; (ii) Gurmit had been able to obtain a passport in his own name and had left India legally in October 1998, which indicated that he was not of adverse interest to the authorities at the time he had left the country. In that regard, the Country Information identified to by the RRT indicated that security checks are presently being made before passports are being issued in India, and have been at the time material to Gurmit's departure. Although the Applicant suggested that he may have paid a bribe to officials in connection with his departure, that was only speculation on the Applicant's part, and no significance could be attached to such claim by the Applicant; (iii) Gurmit's alleged political stance did not involve a genuine claim on the Applicant's part, but was instead made for the purpose of enhancing her protection visa application; (iv) Nevertheless, although the Country Information indicated that in theory, Sikhs do not believe in or practice caste or division into castes, and the Indian Federal Government and various State Governments have passed legislation and pledged financial assistance to encourage and promote inter-caste marriage, Sikhs have developed in practice a Hindu-like caste system, and the same may cause problems and violence; (v) The Applicant's evidence as to the caste difference between herself and her de facto husband was inconsistent. In her primary application, the Applicant had stated that her de facto husband was of lower caste than herself, that she had angered the whole community by having a relationship with a lower caste man, and that she was not allowed to marry Gurmit because of their differences in caste levels. However at the hearing, the Applicant said that the main problem was that she and Gurmit were next door neighbours, and that marriage between next door neighbours is disapproved in small villages such as her home village, and additionally she was of a lower social class than Gurmit; (vi) As to the source of harm feared by the Applicant, she wrote in her primary application that she was regarded by the community as one who defied all the boundaries of the community, society and religion, and of the order of seniority of family members. As a consequence, the community and families within the community wanted to kill her, and the authorities would also harm her or not protect her. However in hearing her evidence it was clear that the people from whom she expressed fear of harm were not her own family or persons from her home village community and/or the local authorities, but rather her source of fear were Gurmit's wife and his wife's brothers. Her testimony also indicated that the only people who had threatened the Applicant both physically and verbally were Gurmit's wife and her brothers; (vii) In relation to the instances as here where a man tried to court the Applicant in 1988, and where Gurmit's wife attempted to turn the Applicant's colleagues against her, and where the Applicant's de facto husband's wife turned prospective bridegrooms against the Applicant, and where finally the Police questioned the Applicant and Gurmit (when the Applicant pretended to be Gurmit's wife), the same were not so seriously harmful as to constitute persecution within the Convention; (viii) In relation to the incident where the Applicant was assaulted by the brothers of Gurmit's wife, although this was a serious harm occasioned to her, the same was not due to caste nor any other Convention reason. The harm suffered in the past by the Applicant was the result of personal animosity directed toward the Applicant by Gurmit's legal wife and her brothers, because of the Applicant's relationship Gurmit. (ix) Whilst the Applicant testified that the Authorities would deny her protection because of their disapproval of her relationship with a man of a different caste and of an adverse political opinion, she was not of adverse interest, nor of any imputed adverse interest to the authorities in India to date, nor would be in the reasonably foreseeable future. Secondly, the RRT also found that it was not satisfied that neither caste nor any other Convention reason was an issue in the resolution of the Applicant's problems. Thirdly, the Applicant had indicated at the hearing that her failure to seek State protection when she was assaulted in 1997 was not because she believed she would not be protected, but rather because she did not want her own brothers to retaliate and make the situation worse. The RRT was not satisfied that the Applicant would be denied State protection if she sought the same in a criminal context; (x) The RRT accepted that the Applicant is subjectively fearful of returning to India and that it appeared that if the Applicant were to return to India in the context of a continuation of her relationship with Gurmit, she would face a real chance of harm from Gurmit's wife and the wife's brothers, at least if she lived in her former home area. Despite this finding, the RRT concluded that the chance of serious harm to the Applicant and her child and/or Gurmit other than at the initiative of Gurmit's wife and his wife's family appeared remote in the reasonably foreseeable future; (xi) The RRT further found that if the Applicant relocated herself with Gurmit from her home village in India, although there was a chance that Gurmit's wife and the wife's family could ascertain such relocated whereabouts by advertising in "India-Wide", given the size and population of India such chance of discovery was a remote one. In relation to this issue of relocation, the RRT made the following observations: "The international community is not under the obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home region, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Randhawa v Minister for Immigration Local Government and Ethnic Affairs 1994 52 FCR 437 per Black CJ at 440-1…. If relocation is not a reasonable option in a particular circumstance, it may be said that, in the relevant sense, persons feared persecution in relation to that country as a whole is well-founded." The RRT found that relocation was a reasonable option for persons from the Punjab area, such as the Applicant, who exercised the same. The RRT referred to further Country Information, and found that large numbers of Sikhs resided throughout India, and that the Applicant could practice her religion freely in other parts of the country. There was no evidence of discrimination of Sikhs in employment generally, and Sikhs were to be found in many areas throughout India; and (xii) In light of all the evidence therefore, the RRT found that if the Applicant relocated from her home village in Punjab, she would not face a real chance of serious harm, such as could amount to persecution within the Convention, and the reality of protection would be meaningful in her favour. The Applicant's Application for Review to this Court 12 As I observed in paragraph [3] above, the form of the Application for Review does not identify any suitable ground for review that is available in this Court. The Applicant claimed that she has a real chance suffering persecution for a Convention reason, namely, by reason of her race, or social group. Consistently with the findings of the RRT, I accept that the situation experienced by the Applicant in terms of being abused both physically and verbally by Gurmit's legal wife and her brothers was distressing and harmful. Nevertheless, such conduct on the part of the Gurmit's wife and her brothers does not amount to persecution for a Convention reason, but a private reason related to Gurmit's leaving of his legal wife. 13 In relation to the issue concerning the Applicant's de facto husband Gurmit being involved as a militant in the Separatist Movement in the Punjab the RRT found that the evidence on this issue was not satisfactory, and that Gurmit was not a man of adverse interest to the authorities. In relation to the further issue whether or not the harm experienced by the Applicant was attributable to her being of a different caste group to that of Gurmit, the RRT found that such harm was experienced due to personal animosity directed towards the Applicant by Gurmit's legal wife and her brothers, as distinct from being the result of her caste or being for any other Convention reason. Both of these findings were open to the RRT, and in each instance, I found that the RRT has not failed to discharge its obligations under the Act. In that regard, the Applicant must appreciate that this Court is not authorised by the Act to engage in reviewing the merits of findings of fact made by the RRT. 14 Whilst I fully appreciate the Applicant's distressing circumstances, being an appreciation obviously experienced by the RRT as exemplified in its final paragraph headed "Humanitarian Considerations", the Convention notion of persecution is not open-ended. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 257-8 McHugh J said: "When the definition of refugee is read as a whole, it is plain that it is directed to the protection of individuals who have been or who are likely to be the victims of intentional discrimination of a particular kind… discrimination – even discrimination amounting to persecution – that is aimed at the person as an individual and not for a Convention reason is not within the Convention definition of refugee, no matter how terrible its impact on that person happens to be. The Convention is primarily concerned to protect those racial, religious, national, political and social groups who are singled out and persecuted by or with the tacit acceptance of the government of the country from which they have fled or to which they are unwilling to return. Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or appears to be powerless to prevent that private persecution." In light of the findings by the RRT and the observations of McHugh J in Applicant A, it is readily apparent that where a situation involves conduct that leads to the harm of another, and such conduct is motivated by personal animosity arising from the perceived or alleged victims of an extramarital relationship as distinct from persons who are persecuted for supposed or perceived characteristics, namely their race, religion, political opinion or social group, such conduct does not constitute persecution in the Convention sense. Not every threat of harm or interference with a person's rights relevantly constitutes persecution. Moreover, whether or not conduct constitutes persecution in a Convention sense does not depend on the nature of the conduct as such. As pointed out by McHugh J in Applicant A (supra) at 258, such notion depends on whether the conduct additionally discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. In light of the principles enunciated above, the circumstances complained of and experienced by the Applicant as recorded in the present case do not give rise to a well-founded fear on the part of the Applicant of persecution for a Convention reason. Relocation 15 The RRT also turned its mind to the further question whether or not the Applicant could relocate from her home village in India to some other destination in her home country. Although the Applicant claimed at the hearing that there was a chance that she and Gurmit could still be tracked down by family members of Gurmit's wife's family, the RRT found such a possibility to be remote given the size and population of India. After referring to the principles established in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 governing such an issue, the RRT concluded from the evidence before it that the Applicant could satisfactorily relocate elsewhere in India. The reasons for this conclusion included her maturity, her proficiency in the Hindu and English languages, her previous experience living in other areas of India and her concession that neither she nor Gurmit would have any difficulty in obtaining employment. The RRT added that there is no evidence of discrimination against Sikhs in relation to employment in India generally and that Sikhs are to be found in many areas throughout India. 16 These findings made by the RRT were open to it upon the basis of the breadth of the information before it, and this Court cannot interfere with those findings. Refugee status is not available to those who, although having a well-founded fear of persecution in their village or region, could avail themselves of protection from their country of nationality in some other location within that country: Randhawa (supra) at 440-1 per Black CJ. The underlying purpose of refugee law is to provide for persons who have no source of protection within the boundaries of their nationality the opportunity to obtain such protection from another state or nation. The RRT, in my view has not misapplied in this respect also the relevant law on relocation. Humanitarian considerations 17 Having affirmed the findings of the RRT that the harm suffered by the Applicant does not constitute persecution for a Convention reason, I would also voice my support for its additional observations, appearing under its concluding heading entitled "Humanitarian Considerations" as follows: "Even though the Tribunal has found the chance of harm from her de facto husband's wife and wife's family is remote if the Applicant relocates from the Applicant's home area in India the Tribunal accepts that there is a chance of harm (even though remote), the Applicant's fear of being located and harmed by the wife is a strong subjective fear and she has reached the state where she feels hopeless if she is to return. However the Tribunal notes to that its role is limited to determining whether the Applicant satisfies the criteria for a grant of a protection visa. The consideration of her circumstances on other grounds is a matter solely within the Minister's discretion." The Applicant presented as an intensely sad, if not pitiful young women, who was sincere in the expression of her concern for her child as well as for his father, and as completely overwhelmed by her life's circumstances. Unlike so many applicants in my limited experience, she did not appear to exaggerate her perceived apprehensions of a grim future upon the return of herself, her son and Gurmit to India (his application for review has been considered by another Justice of this Court: see Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 714). The following passage perhaps exemplifies the intensity of her concerns: "His Honour: Could I ask you this and I realise this is a theoretical question in one sense – if your husband did not succeed in his case on 11 April and he had to go back to India would you want to go back to India with him or would you want to stay her by yourself with your child? Applicant: It would be a hard decision, I'll have to decide, because I don't want to go back, I know it's not safe and I don't want to be here without him." It is however inappropriate for me to intrude any more than to reiterate for my part the RRT's desire that the humanitarian concerns here potentially involved in relation to the Applicant and her son be brought to the Minister's attention. 18 Since the Application fails, it must be dismissed and the Applicant must consequentially be ordered to pay the costs of the Respondent of the proceedings. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.