Case: Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1
Outcome: applied
respect to the issue of adequate state protection, the Tribunal considered the police response to the incidents involving the appellant in June 2006 and January 2007 respectively. The Tribunal found that the police had responded to both incidents and that the police had not proceeded because of the difficulty in tracing the unidentified perpetrators of the crimes. This indicated that the authorities would be willing and able to provide adequate state protection if the appellant and his wife were threatened or harmed in the future. The Tribunal said that the appellant had not provided any independent information as to a lack of state protection in his area or in India generally, in relation to TMC members, and the Tribunal said that it had not found any information to indicate that state protection would be withheld if the appellant faced harm for a Convention reason. The Tribunal said that there was no independent information to establish a link between the CPI(M) and the police. The appellant had claimed that there was such a link and that the CPI(M) had a good relationship with the police. The Tribunal found that the police were unable to pursue the perpetrators of the attacks because of a lack of identification, not a lack of willingness to do so. The Tribunal referred to the decision of the High Court in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18 ; (2004) 222 CLR 1 (" Respondents S152/2003 "). The Tribunal said that it was satisfied that the police had responded in an appropriate and adequate manner in relation to the incidents involving the appellant in June 2006 and January 2007 respectively, and that the police would provide an adequate level of protection to the appellant and his wife should there be any threats in the future. With respect to the issue of relocation, the Tribunal noted that Indians were free to move within the country with the exception of the states of Jammu and Kashmir. The harm suffered by the appellant was "closely related" to his business activities in Calcutta, in particular his contract with BSNL and his support for the TCM in the local elections in April 2006. The Tribunal said: "This leads the Tribunal to conclude that there is a very strong local element to any harm which the applicants have suffered. Should he relocate to another part of India, this local element would be removed and the antagonism and persecution from political and business opponents would not exist." The Tribunal noted that India had a democratically elected government, is essentially governed by the rule of law and has a judiciary "which is independent, albeit slow-moving". The Tribunal concluded that the appellant would not suffer persecution because of his political activity and views and his support of the TCM in the elections in 2006 and that he would not suffer any harm or persecution because of his business success in another part of India. The Tribunal expressed the following conclusion with respect to the issue of relocation: "The evidence from the applicant indicates that he has significant skills and business acumen which would allow him to work and provide financially for his family in another part of India. He does not have dependents who require him to specifically remain in Calcutta, as indicated in his evidence about his family. The Tribunal finds that it would be reasonable, having regard to all the applicant's circumstances, for him to relocate to one of a number of other areas in India." With respect to the issue of adequate state protection, the High Court considered the relevant principles in Respondents S152/2003 . Adequate state protection is relevant to a claim for refugee status because, if it is available, an applicant will have difficulty in showing that he is a victim of persecution, or in establishing that he is justified in his unwillingness to seek the protection of his country of nationality (at 9 [21], 13 [29] per Gleeson CJ, Hayne and Heydon JJ). Adequate state protection does not mean a guarantee of safety. A person may have a well-founded fear of harm and yet there may be adequate state protection. What is required is a reasonably effective police force and a reasonably impartial system of justice or, put another way, a level of protection an applicant is entitled to expect according to international standards (at 12 [28], 13 [29] per Gleeson CJ, Hayne and Heydon JJ). In this case, leaving aside the appellant's assertion of a good relationship between the police and CPI(M) such that he would not be protected from threats or attacks by CPI(M), the Tribunal's approach to the question of adequate state protection did not involve error. The Tribunal considered the response by the police to the two incidents involving the appellant and said that it was adequate and appropriate. The police were willing and able to provide adequate protection if the appellant was threatened or harmed in the future. The Tribunal also found that India was governed by a democratically elected government, applied the rule of law and had a judiciary "which is independent, albeit slow-moving". The appellant pointed to evidence he gave at the hearing before the Tribunal about a connection between the police and the CPI(M). The transcript of the hearing was put before me. I can find one reference in the appellant's evidence to a connection between the police and the CPI(M). It is as follows: "A: So after the incident in the car park, what happened after that? M: I went to the police station after that and I informed them, but they didn't take any action. The threats by phone didn't stop it was continuous and then I let them know and they were very aware of this scenario and situation because CPI has been ruling that area for the last 35 years, so they do have a very good connection with the police station." As to this evidence, the Tribunal said, among other things, that the appellant had not provided any independent information to show this claimed link between the CPI(M) and the police.