Patel v Minister for Immigration and Multicultural Affairs

FEDERAL COURT OF AUSTRALIA

MIGRATION - application to review decision of the Refugee Review Tribunal - alleged errors of law, failure to comply with s 430(1)(c) and (d) and failure to act according to substantial justice and merits of case - claim in substance one for merits review.

Migration Act 1958 (Cth), Part 8, s 420(2)(b), s 430, s 430(1), s 430(1)(c), s 430(1)(d), s 476, s 476(3)

Comcare Australia v Lees (1997) 151 ALR 647 referred

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred

Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 referred

Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 referred

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 referred

Abebe v Commonwealth (1999) 162 ALR 1 referred

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 referred

Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 referred

Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 referred

Yelda v Minister for Immigration and Multicultural Affairs [1999] FCA 1841 referred

Gedik v Minister for Immigration and Multicultural Affairs [1999] FCA 778 referred

N744 of 1999

FINN J

2 MARCH 2000

SYDNEY

THE COURT ORDERS THAT:

1. the application be dismissed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1 This is an application for an order of review under Part 8 of the Migration Act 1958 (Cth) ("the Act") of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of the Minister not to grant the three applicants protection visas. The applicants are a family from India. The first applicant, Prafulchandra Patel, is a businessman. The second applicant is his wife, Sunita Patel, and the third their daughter, Keshaben Patel. Only Mr Patel claims to be a refugee in his own right (although some of the substantive claims he has made in support of his visa application relate to his wife and/or daughter).

A Preliminary Observation

2 As in other areas of government decision-making, the obligation imposed on the Tribunal to provide a written statement recording its reasons for decision (see the Act, s 430) furthers a variety of purposes of importance variously to the public, to parties dissatisfied by decisions, to review bodies and to decision-makers: see eg the observations in Comcare Australia v Lees (1997) 151 ALR 647 at 656. Nonetheless it must be recognised that such statements are those of administrative decision-makers. While they are meant to inform, they are not to be scrutinised over zealously in judicial review proceedings to discern some inadequacy from their expression. Importantly "any court reviewing a decision up refugee status must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision": Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.

3 Those "proper principles" of review do not allow for doubtful fact finding to be characterised as an error of law. As Kenny J commented in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719 at [146], "[a] tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning". Likewise those "proper principles" do not require it be shown that all matters raised in the proceedings are dealt with in the reasons. For the purposes of s 430 of the Act, the Tribunal is not obliged to give a "line-by-line refutation" of an applicant's evidence either generally or in those respects where there is evidence contrary to findings of material fact made by the Tribunal: Re The Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [65].

4 I emphasise the above at the outset for this reason. The applicants' case both in its trawling of the evidence and in its analyses of the Tribunal's reasons does no more than invite a merits review of the Tribunal's decision. Moreover, it seeks as well in substance to invoke grounds of review not available under the Act (eg failure to take account of relevant considerations) or which have been foreclosed by decisions binding upon me (eg Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577).

5 I should add that I have kept my description of the factual setting and of the Tribunal's reasons to a minimum. Given that the applicants' allegations on occasion misrepresent the Tribunal's reasons but in any event seek no more than merits review, it has seemed to me that, other than providing supporting illustrations for my conclusions, little purpose would be served in setting out the evidence and reasons in detail essentially to negative what is said of them.

The Tribunal's Decision

6 The essential causes of the persecution Mr Patel fears at the hands of fundamentalist Hindu followers were (a) his marrying outside his Hindu caste (his wife is from a higher cast); and (b) his being an atheist free-thinker who associated with and assisted Muslims. In answering the Part C questions for his protection visa application (described as the 8 January 1997 statement) Mr Patel gave both a list of the deprivations, discriminations, etc he and his family would suffer were they to return to India, and a lengthy narrative of events and circumstances either involving him or relevant to his apprehensions, dating from his childhood until his departure from India.

7 The apprehended persecutory actions and discrimination (put in abbreviated form) were described as follows:

"Initially I had broken the Hindu tradition by marrying in a Hindu upper cast (sic) and unrestrictedly mixed (sic) with Muslim people in society. Since I have been married and assisted Muslim minorities from any harm, my life has been devastated by local Hindu fanatics and fundamentalists. Even though there was no genuine criminal charges laid against me but still I never had any protection from the respective government authorities for my business and life security ... It is my firm belief that if I go back home I will be treated worse than before, because of my way of belief and atheist activities:

1. My wife and I would find it very difficult to obtain employment or operate a business of any form for our beliefs and religious attitude. If the society could discover that though I am a Hindu but associating and assisting the Muslims in any religious movement then the fanatic Hindus will not let me go.

2. My daughter will not be able to continue her studies in any school or any institution if they recognised about [her] parents' religious identity and relation. She won't be equally treated like other students by their teachers, which we have already experienced in the past.

3. In all respects, me and my family will suffer and will continually be discriminated [against] for my atheist beliefs. Sympathy towards the minorities would bring more disgrace for me if I would have to go back to India. No matter who is in power and which part of India I live in, the extremists and the fanatic Hindus will ostracise my family. In any religious agitation even my next door Hindu neighbour would not hesitate to point his finger at me.

4. The present rising fundamentalist movement in India and their way of thinking makes it dangerous for me to go back.

5. I will be killed both mentally and physically by the superstitious attitude of radical Hindus. This is now happening in India and the real statistics and information are not available to any international humanitarian organisation.

6. I would not be able to get a right and safe accommodation for my family. If at first I was able to find a place to rent it would not be long before the atheist and unusual belief reached my landlord and I would be thrown on the street with my belongings. This would happen over and over wherever I found lodging.

7. In everywhere (sic) sphere of society, I would not be able to express my own beliefs and ideology which I am following. I have to live like a deaf and dumb person with no freedom to speak. My non-belief in religion and belief in humanity would affect my normal daily life. I have already been insulted and disgraced in the society in several ways ... .

8. Moreover, if I were to return I would be hunted down by those Hindu hooligans who killed an innocent Muslim in broad day light in Baroda. That was a consequence of a religion agitation in August of 1995 and I was one of the eyewitnesses (the victim was named Mohammed Jamal who had an affair with a local Hindu Brahmin girl and they intended to marry). I did dare to give evidence after (sic) the court but could not do for the high pressure and continual threats from those killers. As a (sic) open minded Hindu (though I am not a practising Hindu) I felt guilty for not being able to give evidence after the court and assist the victims' (sic) family ... .

[If I return to India, I think I will be harmed by the 'Hindu extremists', the BJP, the Shiv Sena and 'the Hindu extremists who killed Mohammed Jamal', who was 'my Muslim neighbour and also the member of our antiracism club the "Samjhota" in Baroda, because they fear 'me being a witness about the murder'.]"

8 Additionally, he gave oral evidence to the Tribunal. That evidence was in a number of respects inconsistent with the Part C narrative. The Tribunal attributed some importance to these inconsistencies in rejecting significant aspects of the applicants' case. The following is illustrative of this:

"In his statement dated 8 January 1997, the applicant husband stated that his father 'was banned from going to the local temple', and 'our' business suffered. The applicant husband's evidence in the hearing was inconsistent with this claim; in the hearing, he said his father was not banned from temple, and his father's business did not suffer because of the marriage. The Tribunal prefers the husband's evidence in the hearing since it was under oath and subject to questioning by the Tribunal and clarification by the applicant husband, and therefore the Tribunal does not accept that the claim as to the applicant's husband's marriage causing his family harm as credible."

9 The past events of which complaint was made related essentially to personal and family consequences following from his inter-caste marriage; a number of assaults on account of activities in support of the Muslims and the receipt of death threats; eviction from his property (forced by radical Hindus); the refusal of police investigation of complaints; being condemned in Delhi by his upper caste Hindu neighbours; social ostracism in Delhi; threats against/insults to, his family; and an instance of police detention and also police harassment. These events were said to have occurred over some number of years prior to his departure from India and, variously, in Baroda, Delhi and Calcutta.

10 In relation to Mr Patel's inter-caste marriage the Tribunal accepted that both his and his wife's fathers' disapproval of the marriage but found that this was a personal, not a convention related matter. Because of the inconsistencies revealed as between his oral and written evidence, it rejected the claim that the marriage caused harm to his parent's family: see the extract above. In light of the university education, employment and business success he and his wife had enjoyed when in India, the Tribunal rejected the claim that they would find it difficult to get employment because of their beliefs and religious attitudes.

11 More generally, the Tribunal commented on the inter-caste marriage in the following way which I set out at some length as it encapsulates aspects of the methodology of the Tribunal to which the applicants now object:

"In his statement dated 8 January 1997, the applicant husband stated that society would target him, his wife and child for harm because of the inter-caste marriage. The Tribunal notes the country information above ('The Reincarnation of Caste', The Economist, 8 June 1991) which indicates that the caste system is still strong in India, especially in villages ('The Reincarnation of Caste', The Economist, 8 June 1991), and that 'equality' is not a value common in India (ibid). The Tribunal also accepts that the issue of caste evokes passionate responses (ibid; DFAT Cable ND85750, 27 November 1992; 'Mother Teresa Prays With Christians Demanding Jobs', 18 November 1995; and 'Escape From The Tomb', 20 May 1995). The Tribunal accepts that the applicants may encounter some disapproval from time to time by members of the strict Hindu community because of their inter-caste marriage. However, the Tribunal notes the applicant husband's evidence in the hearing that his wife, in 1995, was of the opinion that the police would help them when the applicant was attacked). The Tribunal also notes the country information that the notion of caste in India is being slowly broken down by discrimination in favour of lower castes and urbanisation ('The Reincarnation of Caste', The Economist, 8 June 1991). The Tribunal also notes that India is a secular state, the constitution of which prohibits discrimination, inter alia, on the ground of religion ('India, Country Report on Human Rights Practices for 1998, op cit). As well, the applicant's evidence both in his statement dated 8 January 1997 and at the hearing indicated that the animosity allegedly directed towards him in India arose from his atheism and mixing with Muslims (which claims are considered below). After considering the evidence, the Tribunal is not satisfied that if the applicants return to India, they will face a real chance of harm so serious as to amount to persecution within the Convention by reason of their inter-caste marriage."

12 The claims based on Mr Patel's atheism and association with Muslims were likewise rejected. For reasons of inconsistency (hence credibility) it rejected claims of police detention and assaults. It found other alleged grievances not to be related to a Convention reason or else not sufficient to warrant a real chance of persecution finding.

13 Again illustrative of the Tribunal's methodology is the Tribunal's treatment of Mr Patel's apprehended denial of freedom of speech:

"In his statement dated 8 January 1997, the applicant husband stated that if the applicants returned to India, he would not be able to express his 'own beliefs and ideology' and would 'have to live like a deaf and dumb person with no freedom to speak'. The Tribunal accepts that the applicant is an atheist and a free-thinker who, as does his wife, believes in speaking up for Muslims in India. The applicant is a Hindu and the Tribunal notes that Hindus are the majority of the population in India: Far East and Australasia, London, Europa Publications, 24^th edition, 1993, at page 307, states that Hindus comprise 82.63% of the total population in India. The Tribunal accepts that India overall is a place of diverse cultures and religions (ibid, and DFAT Refugee Determination-Country Profile, India, June 1994, at page 11) and that sometimes conflict arises out of this diversity (Vanhanen, Tatu, Politics of Ethnic Nepotism, India as an Example, Stirling Press, New Delhi, 1991 at page 122). Accordingly, the Tribunal accepts that there is religious tension in India and that the applicant's free-thinking, his association with Muslims and his atheism may indeed bring him into personal conflict from time to time, with radical Hindus. However, the Tribunal also notes that India is a secular country, with an independent judiciary ('India: Political Background', EIU Country Profile 1995-1996, op cit and 'India', Country Report on Human Rights Practices for 1998, op cit) and freedom of speech ('India', Country Report on Human Rights practices for 1998, op cit). After considering the evidence, the Tribunal is not satisfied that if the applicants return to India, there is a real chance that the applicants will be denied the freedoms of speech and/or assembly and/or the freedom to practice or not a religion."

14 Though rejecting Mr Patel's allegations of assaults, or else being unable to make findings on them for reasons of inconsistency, the Tribunal nonetheless went on to deal with them as if true. Of the problems he experienced on this assumption, the Tribunal concluded Mr Patel could resolve the matter "by relocating elsewhere in India outside his home area in Baroda". It gave reasons why it considered he could relocate.

15 The Tribunal, finally, considered Mr Patel's claims cumulatively but remained unsatisfied that he faced a real chance of persecution in India for a Convention reason. In relation to Mrs Patel and their daughter the Tribunal also concluded they did not satisfy the criterion for a protection visa.

The Present Application

16 In an amended application filed at the hearing three grounds of attack were made on the Tribunal's decision. First, an error of law was alleged this being particularised in the following fashion (omitting appeal book references):

"(a) Limited consideration of "well-founded fear" issue to 'de jure' situation in India instead of also considering the 'de facto' situation especially with regards to the strength of the Caste system in India and the consequences of crossing its century-old boundaries.

(b) Wrongly determined the "well-founded fear" issue on the factual finding that "the notion of Caste in India is being slowly broken down" while the proper legal test is the probable situation in the short-term immediately upon return to India.

(c) In determining the "real chance" of persecution occurring the Tribunal should have considered - but failed to consider - as a material fact to its determination the fact that a Muslim boy in love with a Hindu girl caused a riot which resulted in the boy's murder."

Secondly, it was alleged that there had been non-compliance with the provisions of s 430(1)(c) and (d) of the Act. Twelve instances were given of alleged "material questions of fact" on which findings were not set out (s 430(1)(c)) and two instances were given of alleged failure "to refer to the evidence" on which findings of fact were made (s 430(1)(d)). These are set out below. Thirdly, it was alleged that there had been a failure to act according to substantial justice and the merits of the case (s 420(2)(b)). I would note immediately that it was said in submissions that "an order for reconsideration by the Tribunal ought not be made ... solely on the basis of the provisions of s 420(2)(b)". The provision and the allegation concerning it, seemingly, are to add "focus and colour" when considering the Tribunal's reasons and the other complaints thereon.

17 I would have to say at the outset that the challenges as made lack substance and in some degree invite criticism.

The alleged errors of law

18 (a) The allegation that the Tribunal limited its consideration of "well-founded fear" to the de jure situation in India is simply a misrepresentation of the Tribunal's reasons. The passages I have set out above when read along with the documentary materials to which they refer clearly blend the personal and factual with the impersonal, the descriptive and the "de jure". The reasons in this respect are unobjectionable. It was a matter for the Tribunal to determine the weight to give to various components of this evidence: Abebe v Commonwealth (1999) 162 ALR 1 at [197]. I can only say that the applicants' case in this respect attempts to invite that form of scrutiny of reasons proscribed in Wu Shan Liang.

19 (b) The conclusion on "well-founded fear" said to be based on an alleged wrong factual finding is difficult to comprehend. The fact alleged ("the notion of caste in India is being slowly broken down") was simply a matter noted amongst a number of matters. It again misrepresents the reasons to say that the Tribunal's conclusion on the persecution issue was founded on it. In any event the Tribunal observed that caste was not, on Mr Patel's evidence, the cause of his alleged difficulties. Rather, it was his atheism and his mixing with Muslims.

20 (c) The error of law resulting from the alleged failure to consider a material fact again misrepresents the reasons. Importantly the allegation itself amounts to no more than an alleged failure to take a relevant consideration into account. Such is not a ground of review: the Act, s 476(3).

21 To bolster a manifestly weak claim counsel for the applicant in oral submissions proceeded to invite me to find that the Tribunal approached the application before it with "a closed mind" and that it had "reasoned backwards". He disclaimed, though, any claim of actual bias though he nonetheless appeared to emphasise the need for the decision reached to be honest and reasonable. These submissions, though founded on observations adopted by the Full Court of this Court in Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 at 418-420, were not specifically related to any of the available grounds of review contained in s 476. More importantly they simply do not have any reasonable resonance in the Tribunal's reasons for decision. Again the submissions were used as a facade to invite merits review.

22 I reject then the first ground of review advanced. I would merely note my surprise that it has been pursued as it has.

The alleged failure to follow procedures and s 430(1)

23 One need only list the alleged material questions of fact upon which the Tribunal is alleged to have failed to make findings to highlight the vice in the allegation itself. And I make this comment without needing to venture into the conflicting scope given to the s 430(1) obligation in decisions of the Full Court of this Court. For present purposes I accept the wider view expressed in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (contrast Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741). In particular the s 430(1)(c) obligation only requires that findings be stated in relation to "substantial issues on which the application turns": see Yelda v Minister for Immigration and Multicultural Affairs [1999] FCA 1841 at [29].

24 The twelve material questions of fact relied on by the applicants (again omitting appeal book references) are:

"(i) basis of Applicants' parents disapproving of the Applicants' marriage;

(ii) basis of Applicant husband's decision to sever parent-child relationship with his father;

(iii) whether (i) and (ii) above could have amounted to "persecution" ... ;

(iv) whether the First Applicant was perceived as a "Muslim agent";

(v) the effect upon the determination of the facts:-

1. "only a handful of Indians think and act in a modern way ... ";

2. "breaches of the moral code such as ... most heinous of all, pro-creation with another caste - are punishable by rebirth as an untouchable, or worse";

3. In 1994 a non-caste sub-inspector of police who took shelter in a Hindu temple in Maharastra (not Gujarat) ... was stoned to death by the officiating priests";

(vi) the fact that the Applicants had two guests only at their wedding;

(vii) the uproar including the worst student riots in India's history over the federal jobs quota proposal made as a result of the Mandal Commission Recommendations;

(viii) the increasing BJP (and its allies) power in India and their tendency to exploit religious differences and nationalist feelings;

(ix) the fact that the Applicants had already resided in other locations including New Delhi and Calcutta;

(x) the Applicants' propensity to stand up for their principles and beliefs including two incidents in Australia, one of which involved Mrs Patel refusing to hand over money to an armed robber while working at a Woolworths check-out counter;

(xi) whether the fact that the Pakistan cricket team did not play against the India XI in Bombay because of convention-related issues such as racial and religious intolerance;

(xii) whether relocation was an option."

25 As the respondent properly submits, on a benign but fair reading of the Tribunal's reasons, these were in the main matters about which findings were made directly or indirectly, or were matters encompassed implicitly by other findings. Not surprisingly no express reference at all was made in the findings to some of the matters listed (eg that concerning the Pakistani cricket team). More importantly, the listed matters themselves (save perhaps matters (i), (ii), (iii), (ix) and (xii)) could not properly be characterised as "material" for s 430(1)(c) purposes. They are more in the nature of evidence or assertion. And the excepted matters were the subject of findings direct or indirect. By way of illustration I would note (a) in relation to matter (ix) above that the Tribunal both referred in evidence to, and made findings in relation to, both his residence in, and his capacity to reside in, other places in India; and (b) in relation to matter (ii) (severing the parent-child relationship with his father) the Tribunal accepted Mr Patel's evidence that he chose to sever the relationship because, while his mother accepted his marriage, his father tried to talk him into leaving his wife. Far from failing to deal with matters as claimed, the Tribunal displayed uncommon diligence in its elaboration and treatment of the Patels' claims. I regard this claim as a speculative one. It requires, in effect, that the Tribunal expressly address both every piece of evidence relied upon by the applicants and the interpretation they place upon that evidence.

26 For the purposes of the s 430(1)(d) claim the two findings for which the evidentiary basis was allegedly not provided were particularised as:

"(i) the Applicants would not face persecution if they relocated outside of Baroda;

(ii) disapproval of the marriage by the fathers was a personal matter not related to the Convention."

The short answer to the first of these is that the Tribunal set out evidence in relation to relocation referring (inter alia) to the applicants' education, their having lived elsewhere in India, Mr Patel's business aptitude and his personal qualities.

27 In relation to the marriage issue, the Tribunal set out evidence of his relationship with his parents after the marriage. It drew an inference as to the character of the disapproval the Patels experienced (ie it was a personal matter). This was open to the Tribunal.

28 In each instance the Tribunal has not failed in discharging its obligation under s 430(1)(d).

29 Again I should indicate that the claims made in reliance on s 430 amount in this instance to no more than an invitation to merits review. Again I would have to say I am surprised at the manner of its being made.

The s 420(2)(b) ground

30 I simply note that counsel accepted this section furnished no route on its own to the setting aside of the Tribunal's decision. In the face of Eshetu he had no other choice. For my own part I should say whatever function s 420(2)(b) may serve in articulating the standard to be expected of the Tribunal in its decision-making, it provides no assistance in the present matter in exposing deficiencies in the Tribunal's decision. And it provides no circuitous route to merits review: Gedik v Minister for Immigration and Multicultural Affairs [1999] FCA 778.

31 I dismiss the application.