"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.