Brahmbhatt v Minister for Immigration & Multicultural Affairs

REASONS FOR JUDGMENT 1 These two proceedings under the Migration Act 1958 ("the Act") have been heard together. The applicants are women of Indian nationality. They arrived in Australia on 28 December 1996, and each woman made application on 17 March 1997 for a protection visa under the Act. A delegate of the respondent refused to grant the visas, and each of the applicants sought a review by the Refugee Review Tribunal ("the Tribunal"). The same person constituted the Tribunal for the purpose of both reviews. The applicants each appeared before the Tribunal in separate hearings on the same day and gave evidence with the assistance of two different interpreters of the Hindi language. On 4 August 1999 the Tribunal affirmed the delegate's decisions. 2 Both applicants are Gujaratis. Ms Brahmbhatt was born in Baroda on 19 November 1974. Ms Patel was born in Bharach on 27 July 1970. They claimed to have become partners in a lesbian relationship, after they met at a cooking class in Baroda. When Ms Brahmbhatt's parents learned of their relationship, they arranged a marriage without her consent. Although Ms Brahmbhatt resided with her husband for two or three months, she had "no relationship" with him. Ms Brahmbhatt then left her husband and went to live with Ms Patel in Ahmedabad. There the applicants lived together as a couple. Ms Patel worked in marketing and supported Ms Brahmbhatt financially. However, after several months Ms Brahmbhatt's uncle, who also lived in Ahmedabad, learned the true nature of their relationship. Ms Brahmbhatt said her relatives started to hate her and that she feared death from her mother and her husband's family. Ms Patel said that her relations told her employer about her lesbianism and, as a result, she was dismissed. She also claimed her family threatened to kill her and that she feared violence from her family and Hindu religious extremists. The applicants said they came to Australia so that they could live together without fear. 3 In Ms Brahmbhatt's case, the Tribunal made the following findings: "The Tribunal accepts that the applicant was forced into a marriage by her family and that she has now left her husband. The applicant claims she now fears that her estranged husband or her family may pursue her because of her refusal to submit to the marriage. The Tribunal finds that even if the applicant's fears were well-founded, the Tribunal finds such fear arises because of some private reason on the part of her estranged husband and relatives. Consequently there is no, or insufficient nexus, between the harm and any Convention ground. The Tribunal accepts that the applicant is homosexual. The Tribunal accepts that homosexuals are members of a particular social group which is cognisable in Indian society. As discussed at the hearing, the issue to be decided in this matter is whether or not there is a real chance she faces persecution for reason of her homosexuality should she return to India. The Tribunal concludes that the applicant has never been charged with any offence or subjected to any state-sanctioned punishment. What the applicant claims, and the Tribunal accepts, is that she has been harassed by her family because of her sexuality and has been forced into a marriage from which she subsequently fled. She states she has been subjected to and fears further disgrace from neighbours and the public. The Tribunal finds that such disgrace and verbal abuse may be distasteful and upsetting but does not amount to persecution. The applicant also claims that wherever she goes she would face loss of accommodation as people realise the nature of her living arrangements. However, her application shows she has been able to find accommodation for herself and for her partner. Moreover, the independent evidence cited above indicates that there are services available to assist lesbians in India to find accommodation. In the light of this, the Tribunal finds her fears in this regard not to be well founded. The Tribunal has found no mention in sources on homosexuality in India consulted (as set out above, and including such sources as the US State Department's Human Rights Report for 1998, published in January 1999) that there have been deaths of lesbians by family members as claimed by the applicant and does not believe that her fear of being killed by her family is well-founded. While the Tribunal accepts that she has been slapped once by her mother, the Tribunal finds that the applicant was able to remove herself from the sphere of her family by relocating herself and that she was able to live elsewhere in India for some time without any attempt by her family to pursue and kill her. Even if the applicant's fears were well-founded, the Tribunal finds that such fear arises not because of an element of motivation on the part of her family members to harm homosexuals, but due to some private reason relating to her family not wishing the applicant to be a homosexual. Consequently there is no, or insufficient, nexus between the harm and the Convention ground. In any case, the Tribunal finds it is reasonable in the circumstances for her to move to another city in India where she would not be known to relatives and where she can live with her partner and gain from lesbian organisations any assistance she may need to lead the life she wishes. In all of the circumstances, the Tribunal is satisfied that the applicant can return to India and express her sexuality without facing a real chance of persecution. It is also likely that she will encounter public prejudice, but the available information leads to the conclusion that she does not face mistreatment that would amount to persecution. The Tribunal finds that the applicant is outside her country of nationality but concludes that she does not have a well-founded fear of persecution on account of her membership of a particular social group comprising homosexuals. Nor does she have well-founded fears of persecution for any other Convention reason. The Tribunal is satisfied that [the applicant] is not a person to whom Australia has protection obligations under the Refugees' Convention and Protocol and does not meet the criterion for the purposes of granting a protection visa." (Emphasis supplied) 4 The Tribunal's findings in Ms Patel's case were substantially identical save in two respects. First, they did not cover at all the topics mentioned in the first paragraph or highlighted by me in the third paragraph of the above excerpt. (The Tribunal also substituted for the highlighted words in the fourth paragraph the words "her mother has assaulted her in the past".) Secondly, it added the following finding after the fifth paragraph: "The Tribunal finds her evidence that she was fired because of her sexuality from her place of employment to be unconvincing. It is clear from her evidence that she was in any case leaving her employment. Moreover, her primary application shows that she has had no problems in finding work when she moved from one city to another and the Tribunal finds it is not unreasonable to expect that she could live with her partner in India without her place of employment knowing of her private circumstances, particularly if she distances herself form her unsympathetic family." Otherwise the Tribunal's findings were the same in both cases. 5 Each of the applicants relies on the grounds specified in pars (a) and (e) of s476(1) of the Act. The only particulars furnished in respect of the first of those grounds in both cases is a bare allegation that the Tribunal failed to address material questions of fact as required by s 430(1)(c) and (d) of the Act. The amended particulars of the error of law ground in Ms Brahmbhatt's case are: "(a) Wrongly holding that "persecution" does not occur because it arises from within the family. (b) Failing to consider claims of harm done to the Applicant's partner whose application was considered simultaneously by the Tribunal. (c) Failing to consider whether the authorities would in practical terms protect the Applicant from threatened harm. (d) Failing to consider the Applicant's claims in the light of the Indian socio/religious traditions relating to women e.g. "sati" and the well-known extermination of female babies shortly after birth. (e) Failing to consider the effect of the Applicant being forced to marry and live with a man after she had already commenced a lesbian relationship with Ms Patel." The particulars in items (a)-(d) were repeated verbatim in Ms Patel's case. 6 Mr de Robillard, who appeared for the applicants, has argued his clients' cases with great ingenuity and admirable tenacity. However, he is limited by the nature of the cases each of them advanced before the Tribunal. It simply did not have any evidence or material dealing with the alleged "traditions relating to women" instanced in paragraph (d) of the particulars. Further, I do not think it can be seriously suggested that the Tribunal did not consider the effect on each partner of the taunts and hurt suffered by the other partner in the relationship. 7 The particulars do not suggest that the "unnatural offences" provisions of the Indian Penal Code of 1860 were a source of persecution. (Those provisions are, of course, derived from English statutes, although their reach in respect of lesbianism does not appear to have been authoritatively determined. It is ironic that Sir William Holdsworth predicted that the Anglo-Indian codes would "perhaps be the most lasting of all the achievements of British rule in India": History of English Law, Vol XI (1938), p 225.) In any event, in Mr de Robillard's address, he submitted that the Tribunal had overlooked, not the possibility of prosecution under those laws, but the opportunities for extortion and blackmail available to police in their selective enforcement. This submission represented a clever use of material, to which the Tribunal made only a general reference, but specific parts of which mentioned anecdotes about police demanding money from male homosexuals apprehended acting suspiciously in public places. This topic had, in fact, nothing to do with the cases made by the applicants. They claimed that they were at risk of violence from their families and that corrupt police officers would not be likely to respond to any complaints they made. 8 Mr de Robillard aptly described as Delphic the Tribunal's findings about "some private reason on the part of her estranged husband and relatives" in Ms Brahmbhatt's case and "some private reason relating to her family not wishing the applicant to be a homosexual" in both cases. I agree that these cryptic statements are obscure. No such gloss on the element of motivation is warranted by anything said in the passage from the judgment of Gummow J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 284, which the Tribunal had earlier cited, correctly, as providing authoritative guidance on this question. I am left with a suspicion that the Tribunal did apply some special test where the authors of persecution are members of the asylum claimant's family. Whatever may be the scope offered by the Refugees Convention for the protection of the type of human rights asserted by the applicants in this case, any such notion of "private reason" would seem to represent a distraction from applying the text of the Convention definition: see generally Minister for Immigration and Multicultural Affairs v Ibrahim [2000] HCA 55. On the other hand, the Tribunal may merely have meant to say that the ways in which it found that the applicants' families were likely to manifest their animosity towards each of them would not amount to acts of persecution. 9 Ultimately, however, if the Tribunal has wrongly interpreted the Convention in this one respect, it leads nowhere in these cases. As Mr Leeming for the Minister correctly submits, the Tribunal's findings on relocation in India are an insurmountable obstacle for the applicants. Ms Brahmbhatt was able to escape her forced marriage and will not have to rejoin her husband. The applicants will be able to avoid the unwelcome attention of their families and to make their lives by moving to a city away from the Gulf of Cambay. The Tribunal plainly considered that it was reasonable in the circumstances to expect the applicants to relocate to another part of the country: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 443. 10 Nothing specific was put in support of the alleged non-compliance with s 430 of the Act. It should be borne in mind, however, that there is no requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 at 482. 11 Each application will be dismissed with costs. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.