Devarajan v Minister for Immigration & Multicultural Affairs [1999] FCA 796

MIGRATION - application for judicial review of Refugee Review Tribunal decision affirming refusal to grant a protection visa - applicant citizen of India - alleged fear of persecution on the basis of past conduct as a human rights activist and harassment suffered as a result - whether Tribunal took correct view of persecution for reasons of political opinion - relevance of harm being characterised as not part of a course of systematic conduct.

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

Abdalla v Minister for Immigration and Ethnic Affairs (1998) 51 ALD 11, applied

RAVI KUMAR DEVARAJAN v MINISTER for IMMIGRATION & MULTICULTURAL AFFAIRS

NG 502 of 1998

MOORE J

SYDNEY

16 JUNE 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 502 OF 1998

BETWEEN:

RAVI KUMAR DEVARAJAN Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE: MOORE J

DATE OF ORDER: 16 JUNE 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1.  The decision of the Refugee Review Tribunal of 23 April 1998 is set aside.

2.  The matter is referred to the Tribunal for further consideration.

3.  Respondent to pay the applicant's costs.

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

NG 502 OF 1998

BETWEEN:

RAVI KUMAR DEVARAJAN Applicant

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE: MOORE J

DATE: 16 JUNE 1999

PLACE: SYDNEY

REASONS FOR JUDGMENT

1. This is an application for judicial review by Ravi Kumar Devarajan ("the applicant") of a decision of the Refugee Review Tribunal ("the Tribunal") of 23 April 1998. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister") refusing to grant the applicant a protection visa. A criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"): see s 36 of the Migration Act 1958 (Cth) ("the Act").

2. The applicant is a citizen of India who arrived in Australia on 22 September 1996. On 16 October 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs ("the Department"). On 8 April 1997 a delegate of the Minister refused to grant the protection visa and on 11 April 1997 the applicant sought review of that decision by the Tribunal. After considering the circumstances of the applicant, the Tribunal affirmed the delegate's decision, in substance, that the applicant was not a refugee. Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides:

 ... the term `refugee' shall apply to any person who;

(2) owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.

3. The gravamen of the applicant's case before the Tribunal was that he faced persecution if returned to India because of his political opinion. The applicant's evidence was that he had openly campaigned against corruption in government and was a known human rights activist. He feared persecution from a number of agents, including rich landlords, businessmen, corrupt politicians, party leaders and other authorities.

The Tribunal's summary of the applicant's account

4. The Tribunal's reasons set out the applicant's claims and evidence at each stage of the application process which can be summarised as follows. The written application to the Department for a protection visa was accompanied by various documents relating to the applicant's educational qualifications. The applicant stated in the application that he would be providing copies of a charge sheet, documents of political and social activity, a doctor's certificate and a further supporting statement at a later date. The applicant also stated in the application that he had not been convicted of a crime or any offence in any country. None of the supporting documents referred to were received by the Department and after approximately six months the delegate considering the applicant's claims determined that he was not entitled to the protection visa.

5. One day after the delegate's decision the applicant's supporting statement was received by the Department. In that statement, which was forwarded by the Department to the Tribunal, the applicant said the following about his experiences in India. He was first subjected to harassment for reasons of his political activities in 1976, when he was taken into police custody and tortured for demonstrating against the then Prime Minister's declaration of a state of emergency. While studying law in Madras from 1979-1981 he joined the Dravida Munnatra Kazhagam (DMK), where he became secretary of the youth wing of the party and campaigned against the upper caste. He joined the DMK because of his Tamil ethnicity, as the objectives of the DMK were to represent Tamil people, improve welfare assistance and support the formation of a separate Tamil state. He left the DMK when he became disillusioned with the corruption rampant in the party. He was pressed to leave the party because of his public complaints about its misuse of funds. He then joined the Tamil Liberation Army ("TLA"), which had a commitment to communist principles and an objective of removing class distinctions. In 1983 the applicant spoke openly in support of Tamils in Sri Lanka, became involved with legal matters relating to the party and gave speeches about abuse of police power. The applicant gradually became less involved with the TLA after he began to suspect corruption within the organisation.

6. In 1986 the applicant married a Sri Lankan refugee from a lower caste, which his family opposed. Before the marriage the applicant's family kidnapped the woman and attempted to remove her from India. The applicant responded with legal proceedings against his family. However the marriage was later accepted by his family.

7. The applicant then joined a wing of the Communist Party by the name of "People's Art and Cultural Movement" ("PACM") which campaigned against child labour, factory pollution, women's rights and other causes. The applicant said he took part in the social activities of the party and assisted with legal matters from 1987-1991. The applicant attended party meetings and made representations to the government. This led to him being harassed by rich developers and factory owners who threatened to take his family and/or kill him.

8. Soon after the assassination of Rajiv Gandhi in 1991 the applicant's wife was arrested and detained for three weeks at Madras police headquarters for suspected involvement in the assassination. The applicant filed a habeas corpus petition in the High Court of Madras in relation to the arrest. His wife was not permitted to have any visitors or telephone calls while detained and after release had to "sign in" at the police station each week. The applicant said that this practice continues, on a monthly basis, and that his wife is systematically humiliated during each visit.

9. This petition provoked the police to arrest him in June 1991. He was detained for 24 hours and tortured by officials from the Intelligence Bureau. He filed a further petition in the High Court in relation to this incident. However the judge who heard the petition held that the methods of interrogation adopted were legitimate. In 1992 the applicant continued his involvement in political and social activities. He was threatened by police whenever he took legal action. He travelled throughout Tamil Nadu and said that he was treated like a third rate citizen, frequently being arrested on false and flimsy charges. The applicant was also physically assaulted and hospitalised for over a month as a result of his campaigning against the prawn farming industry in the Tanjore district, which was allegedly destroying crops. His injuries included severe bruising, a broken left arm, a knock above the left eye, and being knocked unconscious. In 1993 the applicant organised a series of environmental protest meetings and brought proceedings under "Public Interest Litigation" in the High Court of Madras against the leather tannery businesses whose pollution was damaging agricultural areas. The ruling party, who had vested interests in the industry, organised an assault on him which resulted in injuries and fear for his life.

10. The applicant submitted a declaration to the Tribunal which stated that he had neglected to detail significant events in his application to the Department. These events included his arrest in 1994 and detention for 15 days by the Madras police without charges being laid. The applicant's wife was also arrested and detained for 3 weeks. The applicant said he had been engaged in a campaign to stop child bondage labour and the owners of a match factory had hired people to assault a group involved in the campaign. The applicant also stated that in May 1995 he went on an indefinite hunger strike opposite the High Court of Madras demanding that courtroom argument should be permitted in Tamil. He was arrested for "spoiling the laws" and told that if he protested in this way again he would be struck off as a Bar Council member. He was found guilty by the High Court and given a 14 month sentence which he served. When he was released from prison he discovered that his wife and children were missing. He claimed that the Tamil Nadu police tried to prevent him from searching for his family and were attempting to arrest him again. He secured a visa to Australia and was eventually informed that his family were being sheltered by friends near Madras and lived in perpetual fear. In light of the above statements the applicant claimed that if returned to India he would be arrested for old cases and new and evidence would be fabricated.

11. In written submissions to the Tribunal the applicant stated that he had attempted to relocate within India on two occasions but had trouble with the police in both places. One such encounter involved him being handed over to the Madras police and being released on conditional bail after appearing before a magistrate. This case is still pending. At the hearing before the Tribunal the applicant indicated that the Madras police held a warrant for his arrest. He had been charged under s 307 of the Indian Penal Code as a story had been fabricated about his involvement in the attempted murder of two members of his party who had in fact been killed by the police. He had been granted bail and that the police did not take much interest in him after about four months. He had no documents in relation to the matter and said that it had not attracted publicity.

12. The applicant also told the Tribunal that there were other charges outstanding against him, namely conspiracy under the Indian Penal Code and sedition under the National Security Act, which he said were still pending before the High Court of Madras. The charges are police fabrications and he has not yet appeared in court in relation to them. The applicant was not able to provide the Tribunal with documentary proof of these charges as he said he did not want anyone to know that he was in Australia. However he had been arrested in relation to the charges and had bribed a high ranking police officer to escape from custody with the assistance of members of his party. The applicant feared that certain authorities may take steps to kill him because of a belief that he may divulge information to a magazine called "New Democracy". Agents of the various industries he had worked against in the past would also be looking for him. He also feared retaliation for having publicised the corruption of the Chief Minister of Tamil Nadu, who he said would likely organise to "get rid of him" were he to return. The LTTE did not trust him as he had opposed them in the past and in 1986 had received information that they were trying to kill him.

13. The applicant said that he had made no specific references to the charges against him in his original application to the Department because he was afraid that the information might harm his application and result in him being sent back to India. In relation to relocation within India the applicant said that various branches of government would be searching for him and he could not be assured of the help of the police again. The authorities might come to Australia to kill him. He had information about politicians that they feared would leak out, including information about the son of a former Prime Minister which he said was secret and refused to disclose to the Tribunal. He had information about a corrupt land deal involving the son of the Chief Minister of Tamil Nadu that would result in the applicant being arrested if the information were revealed.

14. The Tribunal asked the applicant to clarify the nature of the conspiracy for which he had been charged and jailed for 14 months. He replied that the conspiracy related to his campaigning for a separate Tamil state. He was convicted of conspiring against the government and of being a terrorist threat to the government. The Bar Council had cancelled his membership as a result of the conviction and he could no longer practice as a lawyer. He also referred to the fact that he had made various controversial and subversive statements about the government in certain publications. In considering the applicant's claims the Tribunal referred extensively to independent country information regarding the recent history of the human rights and political situation in India.

The Tribunal's conclusions

15. The Tribunal stated at the beginning of that part of its reasons that reflected its conclusions that it accepted the applicant had worked as a human rights advocate in India and had encountered significant barriers as a result of his efforts. However the Tribunal noted that the applicant had not been a member of a political party since 1991. In relation to his involvement with the DMK, the Tribunal noted that the applicant's difficulties dated back to 1981. It therefore did not accept that the applicant would be likely to face persecution in connection with the DMK. The Tribunal made a similar finding in relation to the applicant's experience with the TLA, which the applicant had made complaints of corruption against in 1987. The Tribunal noted that the applicant had ceased involvement with the TLA in 1991. It concluded that the difficulties he had experienced with the party were not of a nature that would give rise to a fear of persecution seven years later.

16. The Tribunal rejected the claim that the difficulties experienced by the applicant's wife gave rise to a well-founded fear of persecution in the applicant himself. In relation to the arrest of the applicant and his wife at the time of the 1991 assassination of Rajiv Gandhi, the Tribunal concluded that the circumstances surrounding that arrest no longer existed and therefore there was no real chance that the applicant would continue to be implicated in the incident. The Tribunal accepted that the applicant may have encountered difficulties as a result of his work on behalf of the poor against the prawn industry, the tanneries and others, but concluded that any action taken against the applicant was not a course of selective and systematic conduct directed at him for a Convention reason. The Tribunal instead categorised the harassment experienced by the applicant in relation to these activities as "acts of intimidation relating to specific actions" which did not give rise to a fear of persecution in the Convention sense.

17. The Tribunal referred to the applicant's "mixed success" with the courts of India. It noted that in some instances the courts had protected the applicant, such as in relation to the attempted abduction of his wife and his being released on bail for serious charges prior to his coming to Australia. The Tribunal therefore rejected the contention that the courts would not protect the applicant were he to return to India. The Tribunal was not satisfied that the applicant had provided full facts in relation to his 14 month prison sentence. The Tribunal expressed doubt about the substance of the conspiracy claim and concluded that the courts had treated him in accordance with appropriate legal standards. The Tribunal held that he had not suffered persecution nor would he encounter ongoing difficulties as a result of his plea of guilty and subsequent conviction on the charge of conspiracy.

18. The Tribunal observed that the central claim relied upon by the applicant in his case for a protection visa, the outstanding charge of attempted murder, had not been articulated prior to the Tribunal hearing. The Tribunal expressed doubt about the truth of this claim. However it said that in any event it would not give rise to a well-founded fear of persecution as a court had stated that there was no evidence against the applicant and had released him on bail. The applicant's bail conditions were also very lenient and he had left India easily despite being charged with a serious offence. The Tribunal concluded that this claim did not give rise to a well founded fear of persecution and even if the applicant were prosecuted in relation to it the evidence indicated that he would receive a fair trial.

19. The Tribunal was also not satisfied that the applicant was being truthful in relation to the sedition and conspiracy charges as he had not been forthcoming with facts that would support the claim. The Tribunal considered the information provided by the applicant in relation to the charges to be "the sort of thing an investigative journalist would easily find" and that overall the sedition and conspiracy claims were "fanciful". One reason why the Tribunal rejected the applicant's claims concerning outstanding charges against him was the fact that he had provided no documentary evidence in relation to any of the alleged charges. The Tribunal concluded that such information "must have been available to him".

The Tribunal said:

Receipts, charge sheets, bail documents and release certificates must exist and must be accessible to the Applicant. He came to Australia with a plethora of documents relating to his education and other activities but without any documents relating to his alleged crimes which are the basis of his claim for protection. In light of the lack of plausibility, the late provision of details, the Applicant's unwillingness to provide the Tribunal with all the information necessary to make a full assessment of his claims and the lack of documentation the Tribunal is satisfied that there is no real chance he will face persecution for a Convention reason upon return to India. Accordingly the Tribunal is not satisfied that this Applicant has a well-founded fear of persecution for a Convention reason.

The course of the hearing in the Court

20. In an amended application for judicial review filed 28 July 1998 the applicant challenged the decision of the Tribunal on a number of grounds identified in s 476 of the Act, namely that procedures required by the Act were not followed (s 476(1)(a)); the decision was not authorised by the Act (s 476(1)(c)); the decision involved an improper exercise of power (s 476(1)(d)); error of law (s 476(1)(e)); and there was no evidence to justify the decision (s 476(1)(g)). The amended application, which was prepared by a solicitor, contained a number of pages of what were, in substance, submissions on the meaning of persecution, the nature of political opinion to which the Convention relates and the current state of affairs in India. Under a heading "Political opinion" the document stated that:

It is abundantly clear that Mr Devarajan has a political opinion which is well established and clearly made out in his homeland which is not favoured by the government or the other aforesaid agents of persecution and he now and at the time fled his homeland fears of persecution for holding such an opinion.

21. Two additional documents headed "Submissions" and "Affidavit of the applicant" were also filed on behalf of the applicant and again asserted that the applicant has a well founded fear of persecution as a result of his political opinion and involvement in human rights issues in India. The submissions document stated the applicant had been previously unable to provide any documents in support of his claims but that he had recently received a charge sheet which proved the bona fides of his claims. A copy of the charge sheet and the envelope in which it was sent from India was annexed to the affidavit. The applicant stated in the affidavit that the charge sheet had been found by accident by the applicant's brother among the applicant's belongings. The solicitor appearing for the applicant sought to tender these documents. The Minister opposed the tender.

22. It was agreed that I could rule on the admissibility of the documents when giving judgment in the matter. However at the conclusion of the hearing on 16 September 1998 it was accepted by the parties that the documents provided by the applicant should be made available to the Minister for him to consider whether to exercise certain discretionary powers under the Act: see s 417 and s 48B. The charge sheet and envelope were shortly there after uplifted from court for this purpose. By letter dated 22 March 1999 the Australian Government Solicitor notified the Court that the applicant's case did not meet the criteria required for consideration by the Minister under s 48B and s 417 and consequently the Minister would not proceed to consider the exercise of his discretion under either section. Thus it is necessary to determine the application for judicial review.

Conclusions of the Court

23. I have already set out the grounds on which the applicant seeks judicial review. Much of the focus of the oral and the written submissions of both the solicitor appearing for the applicant and counsel for the Minister was the status and relevance of the documents sought to be tendered on behalf of the applicant. I do not view the documents as tending to prove the non-existence of a fact that was a fact the Tribunal based its decision on: see s 476(4)(b) and Mohammad v Minister for Immigration and Multicultural Affairs [1999] FCA 508 or relevant to establishing what might have been revealed by further inquiries the Tribunal should have made: see Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170 cf Malik v Minister for Immigration and Multicultural Affairs (1997) 47 ALD 27. The documents would, on other grounds, be inadmissible: see Ozberk v Minister for Immigration and Ethnic Affairs (1998) 79 FCR 249. I reject the tender.

24. I turn now to the grounds of review. I think it can be fairly said that the amended application raises a ground concerning the view the Tribunal took of what might constitute persecution of the applicant for reasons of political opinion. It is to be recalled that the applicant arrived in Australia in September 1996. Reference has already been made to his account of events in 1992, 1993 and 1994 concerning campaigns he was involved in against the growth of prawn farming, the operation of tanneries and the use of bonded child labour. In this period the applicant said he was hospitalised for a month as a result of serious injuries he received when assaulted by hoodlums hired by the owners of prawn farms. He also said he was assaulted by people acting on behalf of the tannery owners. Others were assaulted by people hired by the owners of a factory who, it appears, were using child labour. The Tribunal dealt with these matters in the following way:

The Applicant claims that he encountered difficulties with the owners or manages of the prawn industry, tanneries and match factories because of he took legal actions against them and because of his support for the poor in their struggle for improvement in their life. The Tribunal accepts that he may have encountered difficulties by taking on the cause of the poor. However, action against him was not a course of selective and systematic conduct directed at him for a Convention reason. Reprehensible as the behaviour is, the Tribunal is not satisfied that the conduct can be seen as part of a course of systematic conduct but rather acts of intimidation relating to his specific actions. The Tribunal does not accept that these incidents now give rise to a fear of persecution in the sense of the Convention. His difficulties relate to the particular circumstances of each action in which he was involved.

25. It is clear, on a fair reading of this part of the Tribunal's reasons, that it accepted what the applicant had said about these matters though the Tribunal was critical at a later point in its reasons of other aspects of the applicant's account of his experiences in India before arriving in Australia. The Tribunal did not say expressly it accepted that the applicant was assaulted twice, once seriously leading to hospitalisation, and was under threat of assault on another occasion. However, it spoke of the "reprehensible ... behaviour" of those who took "action against (the applicant)" and there is little doubt that it accepted that the activities of the applicant had resulted in harm or a threat of harm to him of the type he had described.

26. In my opinion, the conduct that led to this harm was arguably the expression of political opinion by the applicant. The Convention can apply to a person who is seen as a threat by a group unrelated to the government if the threat arises by reason of the person's political viewpoint and is at risk of harm at the hands of that group: see Saliba v Minister for Immigration and Multicultural Affairs (1998) 159 ALR 247 at 254. At the very least arguably, this was the position the applicant had been in: see also Voitenko v Minister for Immigration and Multicultural Affairs [1999] FCA 428. If that was so, then the approach of the Tribunal in characterising the harm suffered as not being part of selective or systematic conduct states too narrowly what is comprehended by the notion of persecution. One act of oppression may be sufficient: see Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429-430. As the Full Court said in Abdalla v Minister for Immigration and Ethnic Affairs (1998) 51 ALD 11 at 20:

In substance the tribunal decided, in the present case, that the recurring pattern of communal violence, which it found to exist in Somalia, did not amount to persecution because there was no systematic course of conduct. The requirement, in our view, was too widely expressed. Where there is a recurring pattern of violence towards a person on a Convention ground, there is no reason why such conduct may not constitute "persecution". Clearly "persecution" involves more than a random act. To amount to "persecution" there must be a form of selective harassment of an individual or of a group of which the individual is a member. One act of selective harassment may be sufficient. The fact that a recurring pattern can be loosely described as communal violence or even civil war does not mean that it cannot amount of "persecution". It is necessary to examine the situation further in an attempt to determine the purpose which gives rise to the violence or danger.

The decision in respect of whether recurring communal violence amounts to "persecution" depends on whether there is a purpose behind the recurring pattern which is referrable to a Convention ground.

27. What the Tribunal has, in my opinion, failed to recognise in the extract from its decision just quoted, is that the social and political activism of the applicant over a long period led to the applicant being harmed or threatened with harm. It is harm which, on that much of the applicant's account accepted by the Tribunal, the state has been unable or unwilling to prevent. To dismiss the harm as not part of a course of systematic conduct and only "acts of intimidation relating to (the applicant's) specific actions" involves a failure to recognise that the harm he experienced might constitute persecution by reason of his political opinion. This meant the Tribunal failed, in substance, to consider adequately the ultimate question of whether the applicant had a well founded fear of persecution were he to return to India. The persecution which arguably arose from the expression of applicant's political opinion in the past might well found conclusion that there is a real prospect of persecution in the future. Ultimately, however, that will be a matter for the Tribunal to determine. The Tribunal was, in my opinion, unduly distracted by the question of whether, as a matter of fact, the applicant faced criminal proceedings and possible imprisonment on charges of attempted murder, sedition and conspiracy were he to return to India. What it failed to recognise was the potential significance of the applicant's long history of social and political activism and the deleterious consequences he had suffered as a result. In so doing it committed an error of the type identified in s 476(1)(e). I have, in the preceding discussion, spoken of the Tribunal having failed to recognise or consider certain matters. I did not do so pejoratively as some of the authorities I have referred to which clarify the law are only recent and post date the Tribunal's decision.

28. These conclusions are sufficient to dispose of this application for judicial review. I set aside the Tribunal's decision and remit the matter to the Tribunal for further consideration.

I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore .

Associate:

Dated: 16 June 1999

Solicitor for the Applicant: S.T. Krishnar

Counsel for the Respondent: N. Williams with S. McNaughton

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 18 September 1998

Date of Judgment: 16 June 1999