FEDERAL COURT OF AUSTRALIA VMOS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1076 VMOS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS V 82 of 2003 RYAN J 9 OCTOBER 2003 MELBOURNE IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY V 82 of 2003 BETWEEN: VMOS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE OF ORDER: 9 OCTOBER 2003 WHERE MADE: MELBOURNE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's costs of the application, such costs to be taxed in default of agreement. 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 82 of 2003 BETWEEN: VMOS Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent JUDGE: RYAN J DATE: 9 OCTOBER 2003 PLACE: MELBOURNE REASONS FOR JUDGMENT 1 The applicant is an Indian citizen now aged 28 who arrived in Australia on 12 March 2000 on a student visa. On 21 June 2002 he applied for a protection visa which was refused by a delegate of the Minister on 29 August 2002. The applicant applied to the Refugee Review Tribunal ("the Tribunal") for a review of that refusal but, on 31 January 2003, the Tribunal rejected that application and affirmed the decision not to grant a protection visa. The applicant has applied to this Court under s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth) for a review of the Tribunal's decision. The factual background 2 The applicant is a Hindu graduate from Osmania University who formerly lived in Andhra Pradesh. He claimed that in 2001, while he was in Australia, his family property was "captured" by the Naxalites who also kidnapped and tortured his younger brother. He claimed that the local police and some politicians were in league with the Naxalites and no protection was afforded to their victims. The applicant gave evidence to the Tribunal which it summarised as follows in its reasons for decision; 'The applicant said that his family's property had all been sold; the Naxalites had come and directed his father to sell it to particular individuals at a very low price. He said that the Naxalites were all around the applicant's town. The applicant's parents did not report what occurred to the police because to do so would lead the Naxalites to kill someone. I asked the applicant about the kidnapping of his younger sibling and he said that the Naxalites had taken his younger sibling and asked the applicant's father to send assistance. The applicant said that this had happened about a month after he came to Australia but he had not learned of it for about a year after then. His sibling had been kept for three or four days but was released and went on with his life. The applicant said that his father had been kidnapped about three months before the applicant had come to Australia: the Naxalites had taken him and kept him until they got what it was they wanted. This had happened on two further occasions. I asked the applicant about whether these kidnappings had been reported to the police and he said that his parents had done so but that there were informers at the police. I asked the applicant about his claim that false charges had been laid against his family and he said that the police wanted information from his parents. The applicant's family's experiences with the Naxalites and the implications this would have for the applicant upon return has two elements. First, he fears that there will be no assets or money in his family from which he could establish himself and start a business. Second, he fears that the Naxalites may learn that he has returned from abroad, think that he might have money and come to harm him. The applicant states as well that he is from a Muslim area and fears that he may be harmed because of tensions which exist between Muslims and Hindus. He states that Muslims want Hindus like the applicant and his family to leave the area. As well, Hindu groups can force young people to join them and take part in violent activity. He states it is compulsory to join them and to fight Muslims.' 3 The applicant recounted to the Tribunal episodes of animosity between Hindus and Muslims in his region which had intensified in the early 1990's after the demolition of the Babri mosque. He claimed to have been beaten and harassed in a couple of those episodes and told that, if he returned to the area, he would be killed. His evidence on this aspect as recounted by the Tribunal continued; 'The applicant said that a relative was a local leader of the BJP who tried to gather Hindus together to fight against Muslims. The applicant felt obliged to do as his relative said and would be obliged to do so if he were to return. I said to the applicant that it seemed to me that as an educated adult he could resist the pressure of his relative. The applicant said that he would have to follow his relative and that he had to show his relative respect although he had managed to avoid getting involved with his relative's fighting when he had lived there. He said that he did this by hiding when his relative came to the house. The applicant suffered no adverse consequences for avoiding getting involved as he said his relative wanted. The applicant said that if his family were harmed by Muslims then he would have to take part in retaliatory action.' 4 Other fears which the applicant instanced to the Tribunal were that Andhra Pradesh might be broken up and his family, who were successful new arrivals, displaced and that friends who had lent him money in Australia might carry out threats to have him killed in India if he did not repay the money. When the Tribunal questioned whether the applicant could, on his return to India, live away from his home town as his younger sibling appeared to be doing, the applicant made these responses, as noted by the Tribunal; 'The applicant said that his younger sibling had a good degree. I asked the applicant why he could not live in another large city in the state and suggested Hyderabad. He said that there was no-one there for him and that there was nothing he could do there. The applicant said that he would not have peace of mind in India, that human life was not valued and it was dangerous there.' Country information 5 In the course of its reasons for decision the Tribunal reviewed an extensive body of "country information" about the activities of Naxalites in India. This information was gleaned from an India "country report on Human Rights Practices for 1993" by the United States Department of State; 'The United States Department of State in 1993 reported on the nature of the conflict: 'Maoist revolutionary Naxalites in the states of Andhra Pradesh and Bihar targeted politicians, landlords and government officials in terrorist attacks. The Andhra Pradesh Civil Liberties Committee, in turn, charged the state government with killing (hundreds of) suspected Naxalites in faked 'encounters' .... In February 1993, the Naxalite People's War Group (PWG) assassinated the Additional Director of the Andhra Pradesh police academy in a daylight attack and killed several dozen other police and paramilitary personnel in ambushes and land mine attacks. The Maoist Communist Centre (MCC), a Naxalite group active in Central Bihar, operated a parallel judicial system that ordered summary executions of landlords and other 'class enemies'.' 6 Further "country information" referred to by the Tribunal included the following material; 'Followers of Hinduism represent around eighty percent of the Indian population ('India' The Far East and Australasia 1997 London, Europa Publications, 1996 p 341). Freedom of religion exists in India and all faiths generally enjoy freedom of worship. It is a secular state but the government 'sometimes does not act effectively to counter societal attacks against religious minorities and attempts by state and local governments to limit religious freedom. This failure results in part from the legal constraints inherent in the country's federal structure, and in part from the law enforcement and justice systems, which at times are ineffective. The ineffective investigation and prosecution of attacks on religious minorities is interpreted by some extremist elements as a signal that such violence likely is to go unpunished' (United States Bureau of Democracy, Human Rights and Labor International Religious Freedom Report 2002: India Washington DC, October 2002). There was a major confrontation between Hindus and Muslims in Ayodhya in October 1990. The conflict was about the location of an ancient Muslim mosque on the site where Hindus believed there had once been a Hindu temple. A number of people were killed there and in associated riots which broke out in several other cities in northern India. Muslims were the main victims of the violence. In December 1992, the mosque at Ayodhya was demolished by Hindu radicals and widespread rioting broke out, again leading to many deaths, largely of Muslims ('India' The Far East and Australasia 1997, cited above, p 314 - 316). 'The destruction of the mosque remains a raw wound in the Muslim psyche' ('Strange wooing' The Economist (US edition) 13 December 1997 CX34296). The Tribunal is aware of many more recent outbreaks of violence between Hindus and Muslims across India and understands that there are some hundreds of incidents each year. These sometimes lead to a cycle of retaliation (Hardgrave, Robert L 'India: the dilemmas of diversity' Journal of democracy Vol 4, No 4 October 1993 p 54 – 68).' 7 However, later country information also from the US Department of State, suggested that, by 1999, the Naxalites had themselves become targets of the police or groups condoned by the authorities. In this context the Tribunal noted in its reasons: 'Human rights groups allege that 'encounters' are usually faked by the police to cover up the torture and subsequent murder of Naxalite suspects, sympathisers or informers. Villagers in PWG-dominated areas complain of regular harassment and arbitrary detention by police. Police officials rarely if ever are held accountable for human rights abuses (United States Department of State India country report on human rights practices for 1998 Washington DC, February 1999, Section 1(a)).' 8 The Tribunal also reviewed information provided in a Department of Foreign Affairs and Trade cable suggesting that; 'Parts of the applicant's state of Andhra Pradesh have been described as a 'communally inflammable' area and there has been violence there between Hindu and Muslim groups on several occasions …' The Tribunal's conclusions and findings 9 The Tribunal summarised the applicant's case as follows; 'There are four elements in the applicant's fear of what might follow for him should he return to India: his fear of the Naxalites; of the implications for him of communal tensions; his fear of being pressed to repay money to people; and his fear of facing financial hardship and possible displacement should the state of Andhra Pradesh be broken up.' 10 The Tribunal discounted the applicant's evidence of his fear of the Naxalites observing, in particular, that; '… the applicant's assertions that the police help the Naxalites and do not protect people against them is not supported by independent information which states that the authorities take extreme action against Naxalites and anyone suspected of being so. I do not believe that people targeted by the Naxalites over a lengthy period to a degree which saw them lose all of their assets would not have sought the assistance of the police and would not have pursued further assistance if they had come across an officer unwilling to act against the Naxalites. … I do not accept that the applicant's account of his parents' action in relation to the police is credible. I have concluded that the applicant's family has not suffered at the hands of the Naxalites to the extent described by the applicant or at all. … I have considered independent information about Naxalite activity and the chance that the applicant could be targeted by them if he were to return to his family in India. I note that the Naxalites are reported to target police, landlords, local leaders and officials, politicians and suspected police informers. I do not consider that the profile of the applicant on return gives rise to a real chance that he would be a person of particular interest to the Naxalites.' 11 On the issue of inter-faith religious violence, the Tribunal found as follows; 'I accept that the applicant has been troubled by the tensions which exist between Hindus and Muslims and that he was beaten and harassed by some Muslims and told to keep away from particular areas. The evidence indicates, however, that the applicant was able to go about his life and that the problems between Hindus and Muslims occurred spasmodically. I do not consider that the harm the applicant claims to have experienced is of a character to constitute serious harm of the kind envisaged in s.91R of the Act: it may have been frightening but I do not consider that what he experienced was persecution as I am required to interpret the term. … There is considerable tension between religions in India and I understand why the applicant may fear that he or a member of his family could be harmed in the event of an outbreak of serious communal violence. The difficult relations between Hindus and Muslims will most probably continue as they have occurred for a very long time but I note that the United States Department of State has reported that relations between various religious groups are generally harmonious. I have concluded that the chance of the applicant being caught up in serious violence motivated by religious differences, and seriously harmed as a result, is remote. In reaching this conclusion I have had regard to advice from the Department of Foreign Affairs and Trade that the Indian authorities are willing and able to act to contain outbreaks of communal violence when they occur and to prosecute people who incite such violence. I have also considered efforts to promote interfaith understanding and so reduce the likelihood that communal violence will erupt. The Indian authorities do not encourage or condone religious intolerance or violence nor the type of behaviour feared by the applicant and I do not consider that the authorities are powerless to prevent it. As also relevant to the applicant's fear of the Naxalites, what the applicant claims to fear because of religious tensions lacks an 'official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of a person's country of nationality' which, as already stated, is necessary for conduct to be regarded as persecution within the meaning of the Refugees Convention.' 12 The Tribunal dealt as follows with the remaining issues raised before it by the applicant; 'The applicant told me at the hearing about his fear of being pressed to repay money to people who lent money to him for fees here in Australia and who have since returned home. He clearly is concerned about this because he does not have the funds to enable him to do so. I explained to the applicant at the hearing that what he described in relation to his debt was not a matter which could engage Australia's protection obligations. … The remaining elements of the applicant's fear of what might follow his return concerned facing financial hardship and possible displacement should the state of Andhra Pradesh be broken up. ... Again, I am not satisfied that what the applicant fears in this regard will be because of any of the reasons in the Refugees Convention and so what he could face cannot therefore constitute persecution. I also consider that the break-up of the state of Andhra Pradesh and the possibility that the applicant's family might have to relocate is very speculative and does not indicate that the applicant faces a real chance of persecution.' 13 The Tribunal member concluded; 'I am not satisfied from the evidence before me that there is a real chance that the applicant would face persecution because of his race, religion, membership of a particular social group, nationality or political opinion if he were to return to live in his home area in India. I therefore find that his fear of persecution there is not well-founded and that he is not a refugee. …' The basis of the present appeal 14 The applicant's essential ground of appeal is that the Tribunal failed correctly to apply the test of whether the applicant faced "serious harm" (or, in the alternative, asked itself a wrong question) by not considering the applicant's claims that he had been, in the Tribunal's language, "beaten and harassed a couple of times" by Muslims and told by them "that if they saw him again in the area he would be killed". Certainly, a threat to kill, if found by the Tribunal to be credible, is a threat of serious harm. However, to amount to persecution under the Convention, such a threat requires an official character or has to arise in a context where the authorities are incapable of preventing the infliction of death or serious injury. The Tribunal correctly applied this test when it said; 'I have concluded that the chance of the applicant being caught up in serious violence motivated by religious differences, and seriously harmed as a result, is remote. In reaching this conclusion I have had regard to advice from the Department of Foreign Affairs and Trade that the Indian authorities are willing and able to act to contain outbreaks of communal violence when they occur and to prosecute people who incite such violence. ... The Indian authorities do not encourage or condone religious intolerance or violence nor the type of behaviour feared by the applicant and I do not consider that the authorities are powerless to prevent it. As also relevant to the applicant's fear of the Naxalites, what the applicant claims to fear because of religious tensions lacks an 'official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of a person's country of nationality' which … is necessary for conduct to be regarded as persecution within the meaning of the Refugees Convention.' 15 It is apparent from its clear findings of fact that the Tribunal has considered the whole of the applicant's evidence, objectively assessed the situation in India and concluded that the applicant is not at real risk of suffering violence for a Convention reason. Moreover, it has found that such violence would not be officially sanctioned or tolerated and that the Indian authorities are not powerless to prevent it. I cannot detect in the Tribunal's reasons any failure properly to apply the test erected by s 91R of the Act. 16 The applicant contends the Tribunal fell into error by not expressly considering whether this particular claim was founded on a "a threat to the person's life or liberty" in terms of s 91R(2)(a). The short answer to this contention is that it is not sufficient that there be a threat to an applicant's life. Section 91R(2)(a) is merely an elaboration of s 91R(1) which requires, by par (c), that "the persecution involves systematic and discriminatory conduct". Here the Tribunal made the clearest of findings that the religious violence in the applicant's home state was not systematic in character, the chances of its affecting the applicant were "remote" and that it was not condoned by the authorities or beyond their power to prevent. The failure to refer again to the specific threat when assessing communal violence in the applicant's home state is manifestly not an error of law. If the Tribunal finds that there is no real chance that the threat will be carried out, it follows, self-evidently, that there can be no well-founded fear of persecution. 17 The Tribunal's decision is thus without legal error. Accordingly, issues of relief flowing from jurisdictional error as discussed in SCAT v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 80 and Plaintiff S157 of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 195 ALR 24 do not arise. 18 For the reasons given above, the application must be dismissed with costs. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan. Associate: Dated: 9 October 2003 Counsel for the Applicant: Ms S Moore (Pro Bono) Counsel for the Respondent: Mr E Heerey Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 21 July 2003 Date of Judgment: 9 October 2003