Lama v Minister of Immigration & Multicultural Affairs

EX TEMPORE REASONS FOR JUDGMENT THE COURT 1 This is an appeal from a judgment of a Judge of this Court dismissing an application to review a decision of the Refugee Review Tribunal ("RRT") made on 6 August 1998. The RRT affirmed a decision by a delegate of the respondent to refuse the grant of a protection visa to the appellant. The RRT found that the appellant was not a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (the "Convention"). Article 1A(2) of the Convention defines a refugee as any person who "owing to 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 and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 2 The appellant is a national of Nepal who arrived in Australia in October 1994. He lodged an application for a protection visa in January 1995. For some reason it was not until March 1997 that the delegate made the decision to refuse to grant a protection visa. It took another sixteen months or so for the RRT to dispose of the application for review. 3 The appellant's case before the RRT was that he feared persecution on the grounds of political opinion and religion, in that he claimed to face penalties under Nepalese law and possibly from state-sanctioned violence because he killed a cow. As the RRT found, the Constitution of Nepal assigns a special status to the cow. The Nepalese Code of Conduct (the Mulki Ain 1962) prohibits the killing of a cow and provides that a person killing a cow intentionally is to be imprisoned for twelve years. The primary Judge characterised the question before him as whether punishment under Nepalese law for killing a cow (bovicide) can be said to constitute persecution for a religious or political reason. 4 The RRT, while expressing reservations about the appellant's credibility, accepted for the purposes of its decision that the appellant and two of his brothers had slaughtered a cow owned by his father in August 1994. This event was said by the appellant to have occurred when he returned to his home village for a holiday after having become accustomed to eating meat while living in Khatmandu. According to the appellant, he went into hiding because he feared arrest. The RRT appeared to accept the appellant's claims that he is a Buddhist. 5 The RRT made the following findings: (i) The law against bovicide in Nepal is a law of general application, its terms applying equally to all persons within the country, Hindu or not, Nepalese or not. (ii) The Nepalese law against bovicide does not demand or prescribe compliance with other Hindu beliefs or practices. It merely requires that people do not kill cows. Nepalese law permits people in the country to buy and eat imported beef. (iii) There was no evidence of intent or motivation to harm either non-Hindus or Hindus for reasons of their religion in the letter or enforcement of the relevant Nepalese law. (iv) Neither the Nepalese Constitution nor Nepalese laws amount to a dictate of Hindu religious values over the appellant. While the Constitution could be seen as having been built to a degree on Hindu-informed traditions respecting life and personal property, the "religious laws" were motivated by a desire to keep the peace among various religious streams in the country. (v) The appellant killed the cow because he was hungry and wanted meat. His actions did not constitute the expression of a religious conviction nor of a desire to give effect to notions of religious freedom. (vi) The RRT was not satisfied that the law and courts in Nepal would be remotely concerned with the appellant's beliefs or affiliations except to entertain arguments as to ignorance or other mitigating factors raised by way of defence to the purely criminal charges against him. (vii) The appellant had not publicly advocated any change to the bovicide laws in Nepal. He would not be perceived as advocating any such charge by his acts in 1994. While there was some political controversy in Nepal about the bovicide laws in 1996, the appellant was not and would not be linked with that controversy. 6 The RRT rejected the appellant's claim that he had a well-founded fear of being persecuted for reasons of religion. According to the RRT, the authorities established that, in order to come within the Convention, the persecutor must threaten persecution because of the victim's actual or perceived religious beliefs. The RRT accepted that it is not necessary that the fear of persecution be solely attributable to the Convention ground. However, the RRT considered that it is necessary to establish that the persecutor is motivated by the Convention ground in relation to the victim. This element was not present, since there was no intent or motivation underlying the law against bovicide, or its enforcement, to harm anyone for reasons of their religion. 7 The RRT also rejected the appellant's claim of persecution for reasons of political opinion. In the RRT's view, he simply faced prosecution for a crime. In Nepal, his actions would not be considered political in character. 8 The principal grounds upon which the RRT's decision was challenged under s 476(1)(e) of the Migration Act 1958 (Cth) before the primary Judge were that: (i) the RRT should have found that the reason underlying the law against bovicide in Nepal was the tenets of the Hindu religion; (ii) the threat of imprisonment for violation of a law designed to protect Hindu religious values was a threat of persecution for reasons of religion; (iii) a risk of persecution pursuant to a law enacted for reasons of religion does not lose its character merely because the persecution takes place pursuant to a law of general application. 9 The primary Judge pointed out that it followed from Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, that it is the concept of singling out an individual or group for harassment on a Convention ground that lies at the heart of the definition of "refugee". In Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225, at 258-259, McHugh J referred to the enforcement of criminal laws in these terms: "Whether or not conduct constitutes persecution in the Convention sense does not depend on the nature of the conduct. It depends on whether it discriminates against a person because of race, religion, nationality, political opinion or membership of a social group. Ordinarily, the persecution will be manifested by a series of discriminatory acts directed at members of a race, religion, nationality or particular social group or at those who hold certain political opinions in a way that shows that, as a class, they are being selectively harassed. In some cases, however, the applicant may be the only person who is subjected to discriminatory conduct. Nevertheless, as long as the discrimination constitutes persecution and is inflicted for a Convention reason, the person will qualify as a refugee. 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 inexceptional 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." See also at 233, per Brennan CJ; at 245, per Dawson J (approving observations made in Minister for Immigration v Respondent A (1995) 57 FCR 309, at 319); Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, at 388, per Mason CJ; at 429, per McHugh J. 10 The primary Judge then referred to two decisions of this Court in which it has been held that the fact that the enactment of a law of general application may have been prompted by religious values does not of itself provide a basis for a conclusion that a person contravening that law is at risk of persecution for reasons of religion. The judgments accept that there might well be persecution for reasons of religion if the sanctions for breach of the law are applied in a discriminatory or selective fashion against individuals or groups adhering to a particular religion or religious beliefs or to whom particular religious beliefs are attributed. But in the absence of evidence of discriminatory enforcement, any threat of persecution by reason of enforcement of the law would not be on a Convention ground. The decisions are Minister for Immigration and Multicultural Affairs v Rahmin Darboy [1998] FCA 931 (Moore J) (in which his Honour considered a number of United States authorities) and "Z" v Minister for Immigration and Multicultural Affairs [1998] FCA 1578 (Katz J). 11 The primary Judge considered that the principles stated in those cases applied to the instant case. After observing that there was no difficulty in accepting that the laws against the killing of cows are consistent with endorsing values of the Hindu faith (although this would seem to run counter to the RRT's finding on this issue), his Honour continued (at par [29] - [31]): "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. 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. 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." 12 His Honour then held that, in view of the RRT's finding that the appellant would not be perceived by the authorities as advocating a change to the law by his actions in killing the cow, there was no error in the conclusion that he did not have a well-founded fear that he would be persecuted for reasons of political opinion. 13 Mr McDonnell, on behalf of the appellant, essentially repeated the submissions put to the primary Judge except, as we understood him, he did not press the argument founded on persecution for reasons of the applicant's political opinion. Rather, he argued that the reason for the enactment of the law against bovicide was to preserve or protect the values of the Hindu religion. But for the reasons given by the primary Judge, the threat of prosecution under that law, which was expressly found to be one of general application, could not of itself suffice to establish that the appellant had a well-founded fear of persecution for reasons of religion. The threat of persecution must exist because of something perceived about the victim or attributed to the victim by his or her putative persecutors: Ram v Minister of Immigration and Ethnic Affairs (1995) 57 FCR 565 (FC), at 568, per Burchett J (with whom O'Loughlin and R D Nicholson JJ agreed). The motivation for the threat must be the fact of or a perception about the victim's race, religion, nationality, political opinion or membership of a particular social group. The fact (if it be a fact) that the motivation for a particular law was a desire to preserve or promote religious values is not enough of itself to bring an applicant within the Convention definition. 14 Nor is it open to the appellant to contend that the law against bovicide was enforced or applied in a discriminatory or selective manner. The RRT's findings on this issue were well open to it and preclude such a contention. Indeed, those findings are inconsistent with the appellant acting as he did by reason of his religious convictions. They are also inconsistent with any threat of prosecution being associated with his religion or even with the fact that he is not a Hindu. 15 In short, the primary Judge was correct in holding that the appellant had not demonstrated any reviewable error on the part of the RRT. The appeal must be dismissed with costs. I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.