Patel v Minister for Immigration & Multicultural Affairs

BEAUMONT J: 1 Before the Court is an application to judicially review a decision of the Refugee Review Tribunal ("the Tribunal") dated 4 August 1999, affirming a decision of the delegate of the Minister for Immigration and Multicultural Affairs to refuse to grant a protection visa to the applicant. The matter has been delayed for two reasons. Firstly, the Court was waiting on the judgment of the five Bench Full Court in the matter of Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 845 and secondly, as many of the profession will know, there have been a number of Judges due to retire this year who until recently were not replaced and that has put considerable pressures on the remaining Judges. 2 The applicant, who is a citizen of India, arrived in Australia on 2 August 1996. He then applied for a protection visa, which has been noted, was refused by the delegate and this decision was affirmed by the Tribunal. In order to understand the basis for the application for judicial review, it will be necessary to provide some explanation of the relevant process of reasoning of the Tribunal. After stating the well-established legal tests in the application of the Refugees Convention, the Tribunal first turned its attention to the applicant's claims and the evidence given in support of those claims. The claims, as the Tribunal noted, were set out in written submissions to the Department, then in written submissions to the Tribunal and later in oral evidence given to the Tribunal on 17 June 1999. 3 In the original application the applicant stated that: he was born in Karajan in the State of Gujerat and that he is a Gujerati; he comes from a Hindu family; he is the first born of two siblings, one of whom was tragically assassinated on 7 May 1995; and that his other (adopted) brother had been missing "for a long time". The applicant stated that he completed a Bachelor of Commerce degree in 1985, that his family was quite wealthy, and that his father was a well-established business man but that upon the death of his brother everything was "turned upside down" and the family business was closed down. 4 The applicant stated that he was also active in another business from 1991 until March 1995 but that in 1995 his own life was "jeopardised" and, accordingly, he was compelled to sell his business interests. He then claimed that what had happened to him was due to his political activities and due to his opinions being different from those of his own political party. 5 The applicant stated that until 1983, when he was at university, he was not aware of national or student politics but that his associates at university gradually influenced him to become interested. He stated that his political life began as a simple supporter of the Bharatiya Janata Party (BJP) in 1983 and that two of his best friends, one presently exiled in Japan and the other brutally killed by his own people in 1996, were very actively involved with the party for a long time. He said that he did not know precisely how he became part of the political group; initially there had been a major objection from his family and relatives to his involvement in political activity but over a period their objections "died down". He stated that the BJP was a strong religious party and was conscious about the rights of Hindu people and wanted to establish India as a place "for Hindus only" (Hindustan). He stated that as a consequence of his association with pro BJP students, he used to accompany them to organised gatherings and in this connection he put up posters, wrote political graffiti on walls and distributed political pamphlets to the general public. He said that his studies were interrupted due to these political activities. Eventually he became an organising secretary of a college branch and was gradually brought "into the limelight". 6 He said that his parents became concerned for him and his security after the assassination of the former organising secretary in their college branch. He stated that in January 1985 some masked thugs had abducted that person at night and a few days later his body was found in a bush area outside the city. He said that the authorities "hushed up" the matter. He said that in February 1985 he was elected as the general secretary of the BJP committee in their college branch and this gave him the opportunity to "introduce" himself to "the main stream" of the BJP. He said that his duties as the general secretary involved organising all the youth, students and various institutions within the district. He said that to establish Hindu students' rights he organised many rallies and campaigns. 7 He stated that by the end of 1985, when he finished his degree, his parents put him into the family business "to divert him from politics". However, he said that in early 1987 he joined the BJP "mainstream" as an executive member in the district branch committee and that out of business hours he spent most of his time in various political activities; addressing public gatherings, leading rallies, and organising youth and people in peaceful demonstrations. He said that from time to time he sat with the central leaders in confidential meetings. He went on to say that in 1990 he was elected as Promukhi (general secretary) of the district committee. This gave him more opportunity to meet with national leaders, which he then named (being senior leaders of the BJP). He said that for executive meetings with other district senior leaders he had to go to other cities, in particular, Mumbay (Bombay). He said that between 1990 and 1992 he attended many processions, demonstrations and rallies organised by the BJP on the streets of Delhi and Mumbay. 8 He said that the party's main aim was to establish India as a safe place for Hindu people and to keep Hindu culture, mythology and history safe from Muslim aggression. He said that in 1992 the BJP and some similar organisations came out on the streets to demolish the Ayodhya Barbri Mosque. He said that as a BJP leader he actively participated in those actions. He said that during the demolition of the mosque in December 1992 many of the followers, leaders and workers were arrested and detained by the authorities. He said that he was arrested and detained in Bihar State for four weeks. 9 However, he said that upon his release from detention he started feeling guilty. He said that as a veteran demonstrator, the bloody and brutal killings in the riots became for him a "nightmare". He became concerned about extremist members in the party and their vicious activities. He said that by the beginning of 1994 he had lost virtually all respect and faith in his party's ideology. He then learned that one of their district leaders, Mr Jonathon Reddy, had been brutally killed a month after his resignation from the party. He said that no case was filed about the murder but nobody doubted that it was linked to the BJP. He stated that the victim was a close associate of his in the party. Before his death, the victim had "abhorred" the BJP and had admonished the applicant to get out of this "dangerous" organisation. 10 The applicant went on to state that after his colleague's death it became clear to him that he was "on the wrong track". He said that he became afraid for his life but did not dare to leave the BJP straightaway. His parents advised him to see one of the BJP national leaders and to ask him for a release from the party. He said that in July 1994 he and another colleague went to Mumbay to see that leader and he begged the leader to permit him to return to his normal life. However, the applicant said, the leader did not listen to him and, in fact, said that in the present situation of national unrest the party needed the applicant's services and dedication. 11 The applicant stated that he was "compelled" to resign from the party. His resignation was not accepted by the district party head. However, a few months afterwards, the applicant stated that he started to speak out against the BJP to the general public but in October 1994 some masked hooligans attacked him at night while he was returning home from his work. He said he was severely injured, having been beaten with a hockey stick and stabbed with a knife. He said that they cursed him in the attack, alleging that he had become a Muslim; had betrayed the god Rama; and did not have the right to live in a Hindu country like India. They accused him of being a traitor by leaving the BJP. 12 He said that on the next day his family went to the local police station to report the incident but the police refused them assistance, without giving any reason. He said that his family then went to the local district authority, that is, the District Commissioner, to beg for his safety and life but they were criticised by the authorities on the ground that because the applicant was once involved with the violent and fanatic politics of the BJP, he did not deserve the government's protection. The applicant said that after this his movements became more restricted and he returned home at night after work "with great fear". 13 He said that the BJP continued to target him as their "number one enemy". As a consequence, he said, in May 1995 some BJP "thugs" suddenly stormed their family business and shouted his name as they jumped on his younger brother and on his elderly father. He said they asked about the applicant's whereabouts and screamed for him to come out. He said that they assaulted his father both physically and verbally and dragged his younger brother away from the shop. He said that although the police station was not far away the police did not immediately come to the scene. 14 The following day he said his brother's dead body was found outside the town on some farm land. He said that his brother was innocent, had not been involved in politics and had lost his life because of the applicant's political activities. He said that his father filed a case but because of the authority's negligence and the continual pressure from BJP hooligans, the case was stopped. The applicant then fled to Mumbay having, he said, handed his share of his business to his partner. He said that in Mumbay he tried to "start everything new" and even grew a beard so that he could not be recognised. 15 However, he said that in spite of this he could not escape from the brutal agitation of BJP hooligans. He said that throughout India the BJP has a "big network". He said that as a result of his long term mixing within the party he was well known to all BJP members in Mumbay; as a further consequence some hooligans and thugs attacked him in March 1996. He said they beat him up "one after another" and shouted at him that he was a traitor and did not have the right to live in India. He said they left him nearly unconscious in the street and warned him that if he did not leave Mumbay within a week he would be killed. 16 He said that after this incident he did not dare to go to the police station as he was afraid that it would make the situation worse. Consequently he "silently" left Mumbay for Delhi. He said that he lived without any disturbance in Delhi for a couple of months until he was discovered by some BJP and other thugs in May 1996. He found an anonymous letter warning him to leave Delhi and not to act against the rising Hindu movement. Even in Delhi he felt insecure and feared for his life. At the same time BJP hooligans kept threatening his family. As a result of these threats he decided to leave India. 17 He said that he is pretty certain that Indian authorities would not be able to save him from the grudge held by BJP and other hooligans. The Tribunal noted that during the hearing before it, it had put to the applicant that the Tribunal had found no mention in the Indian media of the murder of Mr Jonathon Reddy, nor of any reports of people being killed because they had left the BJP and betrayed the party. The applicant stated this was understandable since such actions were usually disguised as ordinary murders, but that people close to such events knew that such actions were taken and that people were killed secretly. 18 The Tribunal went on to note that the applicant had been asked during the hearing before it about discrepancies in the file. For instance, he had not mentioned his brothers but had said that he had a sister. The applicant stated that someone else had filled in the form. The Tribunal noted that the photograph in the applicant's passport showed him to be clean shaven so the Tribunal asked the applicant about this claim that he had grown a beard while in Mumbay so as to disguise himself. The applicant told the Tribunal during the hearing that this was "more of a case of his being lazy and not wanting to shave but there was also an element of disguise". He said that he did not succeed in growing much facial hair. 19 The Tribunal noted that it was also put to the applicant during the hearing before it that the passport was in fact issued in Gujerat from where he claimed he had fled earlier. In response to this query the applicant stated that he had procured the passport at the time he had returned to Gujerat to visit his mother and to settle his business affairs. He said that he was no longer involved in those business affairs after 1995. 20 The Tribunal also noted that during the hearing before it, it had asked questions of the applicant about his beliefs that the BJP would wish to harm him. In particular, he was asked why they would have waited until March 1996 to attack him even though he was not then politically active. The Tribunal noted that the applicant stated that he had started a new life in Mumbay but his enemies were afraid that he might return to Gujerat, which was a major centre of their activities and they knew he could harm them there. 21 The Tribunal then referred to some independent evidence and, in particular, referred to the research carried out on various on-line services together with Amnesty International and Human Rights Watch information and stated that it could find no information relating to the murder of BJP district leader Jonathon Reddy. The Tribunal also stated that this independent evidence had failed to disclose information to support the applicant's claim that the BJP had murdered people who leave or betray the organisation. 22 In the structure of its reasons the Tribunal then moved to express its "findings and reasonings". They are as follows: "FINDINGS AND REASONS The applicant is claiming persecution for reason of political opinion in that he claims he fears harm from the BJP, and the Gujerat State government and federal government which it controls, because he withdrew from the party after he became disenchanted with its ideology. The Tribunal is prepared to believe that the applicant was active in the BJP and that he probably incurred the wrath of local BJP members for having left the party and perhaps, at the time, for having criticised the BJP and its policies. However, the Tribunal finds as implausible the applicant's claims of BJP-inspired attacks on him, on his business and on members of his family over the years subsequent to his having left the party. The Tribunal finds there is no evidence that any such attacks arose from BJP revenge. The Tribunal finds that the document referred to above, being a reference letter dated 6 April 1982 from the Youth BJP Baroda District president appointing him as a Youth President for a Baroda district confirms that he was indeed active in the BJP. The Tribunal also finds on the basis of the applicant's own evidence that he became disenchanted with the BJP in October 1994 following the violence associated with the BJP supported attacks on the Babri mosque. However, the Tribunal finds as far-fetched his claim that over the years from then until August 1996 when he left for Australia he was the target of BJP attacks and threats. The independent evidence cited above indicates there is no evidence that the BJP pursues in the manner he describes former members who leave the party. The applicant claims that the lack of such evidence is because political assassinations and vendettas are carried out so as to make them seem to be ordinary criminal attacks. However, the Tribunal notes that the US State Department's 1998 Human Rights Report, published in February 1999, states that India enjoys a free and vigorous press that is well-known for its investigative journalism. In the light of this, the Tribunal rejects as fanciful the applicant's claim that a concerted vendetta by the BJP to harm and even murder political opponents could remain unreported. Moreover, by his own evidence the applicant no longer engaged in politics following his disenchantment with the party and so his claims that he was pursued for two years in Gujerat, in Mumbay and in New Delhi are implausible. Moreover, if they had wanted to do him harm, he had, by his own evidence, 'fixed business interests' which made him readily traceable. The Tribunal is prepared to accept on the basis of the documents tendered that he may indeed have been attacked and that his brother was killed in an affray. However, there is no evidence that these attacks were instigated by the BJP. Moreover, if he were afraid of the BJP, the Tribunal finds it implausible that he would have fled to Mumbay where the BJP is particularly strong and he was well known, nor that he would have fled to New Delhi where his pro-BJP activities were also well-known. Indeed, the fact that on his own evidence he returned to Gujerat during this time to visit his mother and to apply for a passport leads the Tribunal not to believe that he was in fact in hiding during this time. The Tribunal is prepared to believe that hooligans may have attacked his business and that the attack may have contributed to his father's death but there is no evidence that this attack can be linked to the BJP. Indeed, his claim that the BJP continued to harm his family in order to threaten him makes no sense given that he had already withdrawn from politics. The Tribunal finds his claim that he would be of continued interest to the BJP, or to the governments it controls, now some four or more years since he left the Party to be fanciful. The Tribunal is prepared to believe that he may well have agricultural interests that could be affected by BJP policies and internal disputes. However, by his own evidence he has not engaged in any further political activities during this time and is 'out of' the internal factional disputes that have been splitting the party. In the light of the evidence before it, the Tribunal cannot be satisfied that there is a real chance the applicant might face persecution in the foreseeable future for his political opinion or for any other Convention reason. Therefore the Tribunal finds his fear is not well founded." 23 In his application for judicial review, by his amended application dated 3 December 1999, the applicant has relied on a range of grounds. The document is of sufficient length to justify being annexed to these reasons rather than my attempting to summarise it, so the amended application for order of review filed in Court on 3 December 1999 is annexed to these reasons for judgment. 24 As there appears, there are two main challenges. The first group of grounds relied on by the applicant is that procedures mandated by the Act were not followed. Consequently the applicant seeks to invoke the provisions of s 476(1)(a). As a sub-set of these procedures the applicant claims that there has been a failure to set out findings on material questions of fact. In this connection the applicant seeks to invoke the provisions of s 430(1)(c). The provisions of s 430(1), and in particular their meaning and operation, were considered by a Bench of five Judges constituting a Full Court in the matter of Singh. 25 The majority judgment explains the meaning and operation of s 430(1) in these terms. "l a failure to comply with s 430(1) is a failure to observe procedures required by the Act to be observed in connection with the making of a decision and therefore constitutes a ground of review under s 476(1)(a): see [43]; · s 430(1) does not impose any obligation on the RRT to prepare a statement disclosing a satisfactory process of reasoning leading to the decision it reached, although the RRT is obliged to set out its findings on any material questions of fact: see [44] and [47]; · there is no specific requirement in s 430(1) for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made, although if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see [46]; · the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. Consequently, it must make findings on questions of fact 'that are central to the case raised by the material and evidence before it' or upon which the 'decision, one way or the other, turns', having regard to the process of reasoning the RRT has employed as the basis for its decision: see [48], [56] and [57]; · a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact must be dealt with: see [56]. Accordingly, a failure to comply with s 430 is not made out by reason only of the failure on the part of the RRT to explain why it had not accepted and acted upon material which was contrary to the findings which it had made on an issue: see [56] and [64]; · fundamentally, on a fair reading, the reasons of the RRT need to reveal to the parties why the decision went the way it did: see [62]." (See Najarian v Minister for Immigration and Multicultural Affairs [2000] FCA 933) 26 This branch of the applicant's argument is found in the amended application, annexed, at pp 2, 3 and 4. I will not attempt to restate that material at all or even to summarise it but, in my opinion, there is no substance in the submission. Rather, it appears that those representing the applicant have prepared a shopping list of possible topics about which questions might be asked in an academic context. 27 It must have been apparent from the lengthy summary I have already made of the Tribunal's process of reasoning, that the way in which the Tribunal approached the matter was to set out in considerable detail the way in which the claims made by the applicant evolved and the difficulties the Tribunal encountered in dealing with those claims. It need hardly be said that the Tribunal, as a matter of law and of commonsense, needed to focus its attention on the central thrust of the applicant's claims and case and not allow itself impermissibly to be distracted by other questions. In my opinion, when the Tribunal's reasons are read as a whole it has dealt with each of the material questions of fact as required by s 430, as that provision has been explained in Singh. 28 The next sub-set of grounds relied upon by the applicant appears at p 5 of the amended application, being a failure to refer to evidence or other material on which the findings of fact were based. Again, I am not persuaded of any failure on the part of the Tribunal here. I do not agree with the statement made in the amended application which is presumably based on an assumed logical premise that to find there is "no evidence" the Tribunal would need to explain the whole of the evidence before it including the statements "reportedly made by the assailants during the assaults". 29 The next sub-set of grounds is that the Tribunal failed to consider the application in accordance with the substantial justice and merits of the case. Once more, I cannot accept that any such failure has been demonstrated. As has been seen, the central thrust of the Tribunal's reasoning was its rejection of the credibility of the applicant's claims so far as his own position was concerned. The amended application at pp 5 and 6 then moves to the second set of grounds of the application, being essentially a claim that the Tribunal erred in law, either by incorrectly interpreting the applicable law or by incorrectly applying the law to the facts. The applicant seeks to invoke s 476(1)(e). Again, I will not attempt to summarise those grounds. They appear in the annexed amended application. 30 In my opinion, when the reasons of the Tribunal are read as a whole, it appears that at the beginning of its reasons the Tribunal correctly stated the legal test to be applied in this area. It went on to reject the applicant's claims, essentially because it disbelieved him. These were matters of fact and do not raise any question of law. For those reasons, I am of the opinion that no ground for judicial review of the Tribunal's decision has been made out.