Lama v Minister for Immigration & Multicultural Affairs

Background 6 The essential facts can be briefly stated. The applicant is a citizen of Nepal, born on 15 January 1970. He completed high school in 1989 and enrolled at a college in Kathmandu to study biological science. He was unable to continue with his studies after a few months because of financial problems. He worked until 1992 in the factory of one of his aunts where carpets were produced in small way and sold to a wholesaler. After that he worked briefly in a restaurant until he left Nepal in 1994. 7 The applicant claimed that his father owned some cattle. In the herd was a cow that was not producing any milk and was unable to have calves. It was useless to him. His father, being a Buddhist, did not want to kill the cow. The applicant does not profess strong adherence to any particular religion although he did claim to be a Buddhist. He says he is a meat eater. He did not believe there was anything wrong in eating meat so he decided to kill the cow for food. He did this in August 1994. The news of this killing soon spread throughout the area. His friends warned him to be careful because they said the police were coming to look for him. He decided to leave the district before the police came to his parent's home. He went to stay with another aunt in Kathmandu. He remained there for nearly three months. 8 The applicant did not return to work, and apart from his aunts, nobody knew where he was. He went to see a journalist who said that he could help the applicant to get to Australia at a cost 200,000 rupees. He paid a deposit of 25,000 rupees. The journalist then arranged a visa for him. The applicant bribed an immigration officer at the Kathmandu airport by giving him 300 rupees in his passport. He left Kathmandu on 13 October 1994 and arrived in Sydney on 15 October 1994. 9 After he arrived in Australia , the applicant claims that he spoke to one of his brothers on the telephone and was informed there was a story in the Kathmandu local newspaper that the police wanted to arrest him because he had killed a cow. There was said to be a reward of 100,000 rupees for information leading to his capture. He says, and this is common ground, that the penalty for killing a cow in Nepal is 12 years imprisonment. 10 The applicant feels that he did nothing wrong. He says that he had previously visited India in 1991 to pay respects to the Dali Lama at a ceremony. He visited Bangladesh soon afterwards. As a result of these trips he says he realised that, as a citizen of Nepal, he should not be forced to follow the practices of other religions. He did not see why he should be so severely punished because he is not a Hindu and did not follow their religion. He feels that his liability to prosecution under the law violates his freedom not to practise the principles of a religion that he does not accept. 11 A cable from the Department of Foreign Affairs and Trade ("DFAT") dated 10 January 1997, referred to in the RRT's decision, sets the background to the laws against bovicide in Nepal. It refers to the relevant provisions of the legislation, and is accompanied by a brief commentary. It reads as follows: "A. THE CONSTITUTION OF THE KINGDOM OF NEPAL, 1990 GUARANTEES RIGHT TO RELIGION AS ONE OF THE FUNDAMENTAL RIGHTS OF CITIZENS OF NEPAL. PART 3 SECTION 19 OF THE CONSTITUTION STATES QUOTE EVERY ……… FREEDOM TO PROFESS AND PRACTISE HIS OWN RELIGION AS COMING DOWN TO HIM FROM PERENNIAL PAST HAVING DUE REGARD TO THE TRADITIONAL PRACTICES. PROVIDED THAT NO PERSON SHALL BE ENTITLED TO CONVERT ANOTHER PERSON FROM ONE RELIGION TO ANOTHER. UNQUOTE. PRESENTLY, THERE IS NO RESTRICTION IN PRACTISING CHRISTIANITY IN NEPAL IF IT IS BEING FOLLOWED BY ONE'S SELF WILL, BUT CONVERTING ANOTHER IS PROHIBITED. THE NUMBER OF PEOPLE PRACTISING CHRISTIANITY IN THE COUNTRY IS INCREASING. B. BEING A HINDU KINGDOM, THE CONSTITUTION OF NEPAL HAS ASSIGNED A SPECIAL STATUS TO COW. COW IS DECLARED AS THE NATIONAL ANIMAL IN THE CONSTITUTION AND IS PROVIDED LEGAL PROTECTION. PART 5, SECTION 7 OF THE MULKI AIN, 1962 (NEPALESE CODE OF CONDUCT) DEALS WITH THE LEGAL PROVISIONS RELATING TO FOUR LEGGED ANIMALS. RELEVANT ARTICLES OF THIS SECTION ARE TRANSLATED INTO ENGLISH, AS FOLLOWS: ARTICLE 1 IT IS PROHIBITED TO KILL COW/OX, OR PERMIT ANOTHER TO KILL, OR TO ACT TO KILL OR EVEN TO TAKE TO FOREIGN COUNTRY WITH THE INTENTION TO KILL OR TO SELL. ARTICLE 4 IF ANY PERSON RAISES ARMS OR OTHER MEANS TO KILL COW/OX INTENTIONALLY THE ONLOOKERS SHALL PROHIBIT THE PERSON FROM KILLING. IN CASE THE INTENDING KILLER REFUSES, THE ONLOOKER WILL NOT BE LIABLE FOR PUNISHMENT IF HE KILLS THE INTENDING COW/OX KILLER. HOWEVER, KILLING PEOPLE IN OTHER CIRCUMSTANCES IS PROHIBITED. THE CONVICT SHALL BE CAPTURED AND HANDED OVER TO THE CONCERNED OFFICE. ARTICLE 11 PERSON KILLING COW/OX INTENTIONALLY OR PERMITTING ANOTHER TO KILL SHALL BE IMPRISONED FOR 12 YEARS AND 6 YEARS, RESPECTIVELY. ARTICLE 19 THE CASE AGAINST COW SLAUGHTER SHALL BE PETITIONED WITHIN SIX MONTHS. AFTER THE EXPIRY OF THIS TIME PERIOD THE CASE SHALL NOT BE ENTERTAINED. C. IF POLICE WERE INVOLVED AT THE SCENE THEY USUALLY WILL ARREST THE COW KILLER AND TAKE HIM TO COURT FOR A COURT CASE. THE COURT SHALL THEN ISSUE THE ARREST WARRANT, AS IS THE PRACTICE WITH OTHER CRIMINAL CASES. D. IN NEPAL KILLING FEMALE ANIMALS GENERALLY IS PROHIBITED AND AS COX/OX IS BEING GIVEN SPECIAL CONSTITUTIONAL PROTECTION, KILLING COW/OX INTENTIONALLY IS CONSIDERED A CRIMINAL OFFENCE. WE HAVE BEEN INFORMED BY LAWYERS THAT THERE HAVE BEEN CASES WHERE PEOPLE WERE GIVEN JAIL TERMS OF 1-2 YEARS FOR KILLING COW/OX INTENTIONALLY AND IN PUBLIC PLACES. HOWEVER, PEOPLE FOUND INVOLVED IN ACCIDENTAL COW DEATH CASES WERE RELEASED WITH SOME CASH FINES. IT IS HIGHLY UNLIKELY THAT A PERSON WOULD SLAUGHTER A COW FOR FOOD IN KATHMANDU. BEEF IS AVAILABLE IN SOME SUPERMARKETS/COLD STORES (IT IS REFERRED TO A QUOTE FILLET UNQUOTE.)" (Emphasis added) 12 At the hearing before the RRT and before me the applicant was represented by an adviser who advanced detailed oral and written submissions. 13 The principal question for determination is whether the appellant has a well-founded fear of persecution for a Convention reason (religious or political) if returned to Nepal, having regard to the fact that there is a real chance he will face a sentence of up to 12 years imprisonment for having killed a cow contrary to the Nepalese Code of Conduct.

The RRT reasons 14 The RRT accepted that the applicant killed a cow for food in his home village when there was no meat available. The RRT also accepted that the police might be seeking him in connection with the matter. It is pointed out that, in certain cases, it might be reasonable to conclude that persecution for reasons of religion includes not only persecution for acting in accordance with the dictates of a religion but also persecution for not acting in accordance with such dictates. The task addressed by the RRT was to examine whether the prescribed punishment for a breach of a law of general application was persecution for not acting in accordance with religious dictates. The RRT reasoned that since the applicant's breach of the law did not appear to amount to a breach of any "dictate" as to his religious or spiritual life, then the punishment faced could not reasonably be taken to be an instrument which forced complicity with a religious compulsion. 15 The applicant's argument on this aspect was recorded as being that Hindu values were dictated to him, once the authorities and the public became aware of his act. The decision-maker referred to the Full Court decision in Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401, and in particular to the passage in the reasons of Black CJ, which stated that a critical element of the Convention definition must be fear of persecution for reasons of an aspect or characteristic of what the person is rather than upon what a person does: (see pp 404 and 416). The RRT points out that Morato deals specifically with the question of membership of a particular social group. The decision-maker further points out that after the cow was killed the applicant was not prohibited from eating meat as he had always done, when he could find it at a reasonable price. The offence was killing a cow. It was not an offence to eat meat. The RRT said that it was not satisfied that the applicant killed the cow because of religious conviction or any notion of religious freedom. The applicant's own evidence was said to indicate that the applicant had only ever been vaguely aware that cow killing was considered a sinamongst Hindus. It is also pointed out in the reasons that the applicant indicated that he did not think the authorities would mind if he killed one of his own cows and that he had never considered the legal or social implications of killing a cow. He was motivated only by hunger and this may have blinded him to other considerations. 16 The RRT found that the law against cow killing in Nepal is a law of general application, for its terms apply equally to all persons in Nepal whether Hindu or not. It is pointed out that the law does not single out non-Hindus and permits everyone in Nepal to buy and eat imported beef , although it is very expensive. The decision-maker states that the law against bovicide in Nepal does not require compliance with Hindu beliefs or practices but only requires that people let cows live and die naturally. There is consideration, in the reasons, of the nature of Hinduism in general terms, and also of country intelligence from the United States Department of State's Country Reports on Human Rights Practices for 1997. The decision-maker finds some support in that report for his conclusion that religious laws in Nepal are actuated by a desire on the part of the State to keep the peace among the various religious groups in the country by not permitting the holders of one conservative religious viewpoint to impose religious observances or doctrines upon the lives of others. 17 The decision-maker then reviewed a number of decisions including Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 and Jahazi v Minister for Immigration and Ethnic Affairs (1995) 61 FCR 293. The decision-maker states that the Convention ground must be more than merely linked in a peripheral way to the feared persecution, and that in cases of political opinion or religion, the persecution must be due to the victim's actual or perceived political opinion or religion. The RRT found no evidence of intent or motivation to harass either Hindus or non-Hindus for reasons of religion either in the letter or enforcement of the law. 18 The closing three paragraphs of the decision summarise the RRT's approach. They read: "The 'is/does' distinction in Morato is as relevant here as it is in the case of the claims relating to 'religion', for the Applicant killed the cow in isolation of any political agenda, movement or events. On the evidence in the Nepal Constitution it would not be prosecuted as such, and there is no evidence to satisfy the Tribunal that the Applicant's killing of the cow would be tacitly considered a political crime but outwardly addressed as a criminal one. The Tribunal is not satisfied that the Applicant faces a real chance of persecution in Nepal for reasons of 'political opinion'. The Tribunal recognises that Nepal's laws and penalties for cow killing may reasonably be considered to be harsh, and that they may even reasonably be considered to be persecutory from certain tolerable points of view. However, the laws and penalties in this case do not amount to persecution for the Tribunal's purposes since they cannot reasonably be regarded as being applied to the Applicant 'as part of a course of systematic conduct directed for a Convention-related reason against that person as an individual or as a member of a class' (Chan [see below] per McHugh at 430). Having considered all the evidence and legal arguments put forward in this matter, the Tribunal is not satisfied that the Applicant faces a real chance of Convention-related persecution in Nepal. He is therefore not a refugee."

Reasons in the present case 19 Mr McDonnell, solicitor, who appeared for the applicant, submitted that the language used by the RRT accepted that an underlying reason for the law was the Hindu religion. Alternatively, he says that if the RRT did not find that the reason for the law against cow killing was the Hindu religion, the Court should take judicial notice that it is general knowledge and so obvious that it goes without saying that the reason for the law against killing cows in the Kingdom is adherence to the established Hindu religion. It is also submitted that if the RRT did not in fact make any finding as to the reason for the law against cow killing, then it should have made such a decision and was in error in not doing so. 20 It is also submitted that the right to freedom of religion includes the right to choose or not choose any form of religious belief, together with the right to manifest or not manifest such intention or belief. It is said that it is difficult to see how the risk of 12 years imprisonment for not complying with laws, the only purpose of which is to protect Hindu religious values, does not make the applicant a refugee regardless of whether or not the risk is pursuant to a law of general application. By way of example, it is suggested that in a fundamentalist Islamic theocracy, persecution of a person for not attending a mosque or eating pork is to be properly analysed as persecution for reasons of religion. It is said that a basic feature of religious freedom is the right to act in accordance with one's own convictions or lack of convictions and not be forced to act in accordance with someone else's religious mandate. 21 Further, it is said that the case authorities to the effect that general laws which affect all religions or persons equally do not amount to persecution are distinguishable, because they are concerned with membership of a particular social group and not with questions relating to imprisonment for reasons of religion pursuant to laws of general application. It is also submitted that no authority has been shown for the proposition that a risk of persecution pursuant to a law of general application for reasons of religion loses its character by reason of being pursuant to a general law.

The case law 22 In Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 429, McHugh J pointed out that "persecution" in the Convention sense involves selective harassment. It was not necessary, in his Honour's view, that the conduct complained of should be directed against a person as an individual. He or she could be targeted in his or her capacity as a member of a particular targeted group. It is this concept of singling out an individual or a group for harassment on a Convention ground which lies at the heart of the definition. In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258-259, McHugh J referred to the enforcement of a generally applicable criminal law in these terms: "Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee. A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens. The enforcement of a generally applicable criminal law does not ordinarily constitute persecution. … Nor is the enforcement of laws designed to protect the general welfare of the State ordinarily persecutory even though the laws may place additional burdens on the members of a particular … religion … However, where a … religious … group or the holder of a particular political opinion is the subject of sanctions that do not apply generally in the State, it is more likely than not that the application of the sanction is discriminatory and persecutory. It is therefore inherently suspect and requires close scrutiny. … Only inan exceptional cases is it likely that a sanction aimed at persons for reasons of … religion … will be an appropriate means for achieving a legitimate government object and not amount to persecution." (Emphasis added) 23 See also the reasons for judgment of Dawson and Gummow JJ in Chan at 243 and 284-286 respectively. 24 Two recent decisions at first instance in this Court consider the question of persecution for reasons of religion. They both concern punishment for perceived sexual misconduct under Iranian law.

25 The first case is Minister for Immigration and Multicultural Affairs v Rahmin Darboy [1998] FCA 931. That was a decision of Moore J, who set aside a decision of the RRT and remitted the matter for reconsideration. The RRT in that case had concluded that the Iranian Criminal Code, which created an offence of adultery, provided a basis for the conclusion that there was a real chance that the applicant, if returned to Iran, would be persecuted for reasons of religion. The decision-maker considered that the motive for the law under which the authorities might harm the applicant in Iran was based on Islamic religious values. His Honour's reasons for setting aside that decision, are encapsulated in the following extract from his judgment, which follows a comprehensive review of Australian and United States authorities, (at p 12):

"It appears the Tribunal was proceeding on the basis that it was a law of general application notwithstanding its genesis in Islamic law and even if it was given effect to by judges who were also clerics. Given that it was a law of general application it was necessary for the Tribunal to inquire whether sanctions arising from the operation of the law applied generally and not in a way that was discriminatory. That is, in a way that would constitute persecution. This it did not do. It is quite conceivable that a Muslim in Iran might believe adultery was wrong and that to engage in it was contrary to his or her religious beliefs. Nonetheless that person might be involved in an adulterous relationship for temporal or worldly reasons and notwithstanding his or her religious beliefs. It appears from the discussion by the Tribunal of the implementation of the criminal code that the Muslim in the situation just posited would be exposed to the same penalty as the applicant. If so, the treatment of the applicant would not, on its face, have the appearance of being discriminatory and thus would not constitute persecution." (Emphasis added) 26 The decision of Moore J in Darboy was followed and applied by Katz J in "Z" v Minister for Immigration and Multicultural Affairs [1998] FCA 1578 That case concerned the Islamic Penal Codeof 1991, which at all relevant times was in force in Iran. Under that Code, consensual sexual intercourse between unmarried adult Muslims is a crime punishable by serious consequences. In some instances of sexual offences, this takes the form of lashing, stoning and possible execution. The applicant in that case had a sexual relationship with a prostitute which lasted over a year. The relationship was discovered and they were arrested and detained for a day. They were told that they had a choice of either marrying or being stoned. If the applicant married under the law but should afterwards divorce her, he would suffer amputation of one or more of his limbs. His fear was that if he returned to Iran he would suffer the punishment of stoning. The law gave effect to Islamic principles as to appropriate sexual conduct. In that case the RRT concluded that there was nothing in the evidence to suggest that there was any reason other than a breach of general sexual conduct laws for the authorities to impose punishment on the applicant. Therefore, the RRT decided that the applicant did not face persecution for a Convention reason and that the punishment was imposed for a breach of a law of general application and not for a Convention reason. After considering the authorities his Honour dismissed Z's application for review of the RRT decision. 27 In my view, the principles discussed in the above decisions apply to the present case. The statements to which I have referred emphasise the need for something more than the application of a general law in order to properly ground a claim for refugee status. The first instance cases referred to are not distinguishable from the present case in any material respect. I now turn to the present case. 28 It is well-known and can be accepted, that according to Hindu precepts, the cow occupies a sacred status due to its association with Hindu deities and religious texts. The cow is sometimes referred to as a manifestation of a Goddess (Devi) who is identified with the mother of the Hindu gods. Under the caste system, which is found in the Hindu states, the killing of a cow is equivalent to the murder of a Brahmin who ranks at the highest level of the caste system. Other examples of the deep-seated veneration of the cow in Hindu beliefs are indicated by the use of cow products in purification and penitential rites. Activities which involve the killing of a cow are generally treated as occupations fit only for the lowest castes. Such positions include slaughterers and leather-workers. There is no difficulty in accepting that the laws against the killing of cows are consistent with deep seated and enduring values of the Hindu faith. 29 Notwithstanding this, it is apparent that the laws of a nation, both legislative and judicial, to a large extent reflect the values of that nation. Some of these religious or ethical values will be of an abiding nature and others will vary from time to time due to changes arising from social, scientific, educational or technological developments. However, the fact that the law of a country may enshrine particular religious values does not mean that such laws can be described as targeting members in that society who do not adhere to the religion in question. In the present case, the law does not impact on the applicant in any way different to that in which it impacts upon other members of Nepalese society. It is a law of general application and the evidence does not support a conclusion that the law is applied in a discriminatory way. Although it is unlikely that a Hindu may kill a cow, in the event that he or she does so, the prescribed penalties apply. What is governed by the law is the act of killing the cow and not the social or political or religious beliefs of the person who commits the killing. 30 In the present case it was open to the RRT to form the view that the law did not select the applicant for punishment because he was not a Hindu. There is no selective harassment to be found in the punishment imposed by the Nepalese authorities, even though viewed through Australian eyes the punishment may appear grossly disproportionate to the crime. The question to be addressed is not whether the law is inappropriate or inconsistent with Australian policy but rather whether the operation of the law gives rise to selective harassment for a Convention reason. 31 A further significant matter emphasised by the RRT, is the absence of any compulsion to engage in any particular form of conduct. This is not a case where there is any suggestion that any religious belief of the applicant is restricted or hindered. Inherently, the act of killing or not killing a cow is neutral conduct in the Convention sense. 32 For these reasons I am nor persuaded that the RRT erred in law within s 476(1)(e) of the Act, in refusing to decide that if returned to Nepal there was a real chance the applicant would suffer persecution on the ground of religion. 33 A second matter raised by the applicant is based on persecution for reasons of political opinion. 34 While the evidence indicates that the issue of penalties for cow killing is a matter of some controversy, which has led to civil disturbance, it does not follow that this is sufficient to make a person a refugee for reasons of political opinion under the Convention. The suggestion was made that his crime might be linked with that controversy and therefore his claim assumed a political character. As the RRT points out, the applicant killed the cow some two years before the political controversy arose. One further important finding of fact made by the RRT against the applicant in relation to this matter was that he has not publicly advocated any change in the relevant laws; although he may privately support a change in laws after having killed the cow. The RRT found that the applicant would not be perceived by the authorities as having advocated a change to the law through his action in killing a cow. In other words, his act of killing could not be construed as a political statement. The act was done secretly in the privacy of his own yard, and he told no-one outside his family that he was going to do it. It is difficult to see in these circumstances how the applicant's freedom of political expression or belief was suppressed. 35 Although Morato was a case involving a determination in relation to whether there was a social group, in my view the remarks of the Chief Justice are apposite. In a refugee case, the Court looks to see whether there is some real chance of persecution arising from some basic characteristic of a person such as the person's race, religion, social group or political opinion. These characteristics can be contrasted with the commission of an act such as killing a cow in respect of which the perpetrator has a free choice. True it is that religious and political beliefs and membership of a social group may change from time to time as opposed to unchangeable characteristics such as race, origin or colour but, nevertheless, it is evident that what the Convention principally is directed to is such basic or deep-seated characteristics. A decision to kill a cow is generally not a religious or political choice. Indeed, the evidence in the present case is that there was no element of political or religious purpose underlying the decision to kill the cow. 36 Having regard to the above matters I am not persuaded that the RRT misinterpreted or misapplied the law as to what constitutes persecution for either political or religious reasons. Further, I am not persuaded that the RRT failed to act according to substantial justice or the merits of the applicant's case as claimed. Moreover, it has now been established that this does not form a valid ground for review as a "procedure" within s 476 of the Act: see Minister for Immigration and Ethnic Affairs v Eshutu [1999] HCA 21. 37 A further ground of appeal is that the RRT erred in the interpretation and application of the law because it did not make a finding on a crucial question of fact namely; whether the police were seeking the applicant in connection with the killing of the cow. In light of the conclusions which I have reached in relation to the other matters, it was not necessary for the RRT to determine whether the police were seeking the applicant in connection with the killing of the cow. The RRT approached the matter on the basis that there was a real chance that the applicant would suffer 12 years imprisonment if returned and there was no suggestion in the RRT reasons that this may not be the case. There is no suggestion that the police were discriminating or selectively harassing the applicant. The RRT decision turned on the characterisation of the law.

Conclusion 38 The applications for review under the Act, and the application for an extension of time to bring an application for review under the ADJR Act and with the Court's jurisdiction under the Judiciary Act, should be dismissed with costs.

I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate: Dated: 8 July 1999 Solicitor appearing for the Applicant: J McDonell

Solicitor for the Applicant: J McDonell & Co

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 30 April 1999

Date of Judgment: 8 July 1999