Chinnaiyan v Minister for Immigration and Multicultural Affairs

[2002] FCA 180

FEDERAL COURT OF AUSTRALIA

Chinnaiyan v Minister for Immigration & Multicultural Affairs
[2002] FCA 180

MIGRATION – application for protection visa – no point of principle

Migration Act 1958 (Cth)

SHANMUGAVEL CHINNAIYAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1271 of 2001

MOORE J
1 MARCH 2002
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1271 of 2001

BETWEEN:	SHANMUGAVEL CHINNAIYAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE OF ORDER:	1 MARCH 2002
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.   The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N1271 of 2001

BETWEEN:	SHANMUGAVEL CHINNAIYAN APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE:	1 MARCH 2002
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Introduction

1. This is an application by Shanmugavel Chinnaiyan (“the applicant”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) of 23 August 2001 affirming a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”), refusing to grant the applicant a protection visa.  The criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees of 28 July 1951 as amended by the Protocol Relating to the Status of Refugees of 31 January 1967 (“the Convention”).

   Background

2. The applicant, who is a citizen of India, arrived in Australia on 4 April 1998.  On 15 May 1998 he lodged an application with the Department of Immigration and Multicultural Affairs for a protection visa under the Migration Act 1958 (Cth) (“the Act”). On 25 September 1998 a delegate of the Minister refused to grant a protection visa and on 8 October 1998 the applicant applied to the Tribunal for review of that decision.

   The Tribunal’s reasons

3. In a section in the decision headed “Claims and Evidence”, the Tribunal set out the claims made by the applicant in his application for a protection visa.  A summary of the applicant’s account (derived from the Tribunal's reasons) is set out below.

4. The applicant was born into a low-caste family in Tamil Nadu, India.  He decided to leave school at the end of year 10, because of caste-related discrimination which he had suffered.  As a result of the treatment he had been subjected to, he joined the Radical Students’ Unit of the Communist Party of India (“RSU”).  Soon after joining the party he came to occupy the role of district secretary. The RSU were strong supporters of the Tamil cause in Sri Lanka and this support resulted in the applicant being detained, on several occasions, by the police who assaulted and tortured him and threatened his family. 

5. After the assassination of Rajiv Gandhi, in May 1991, the applicant was arrested on suspicion of involvement with the crime.  He was held at the local police station for fifteen days, during which time he was tortured.  The police then took him to another location, where he was asked to “divulge the names of the movement’s members”.  The applicant refused and as a result was imprisoned for a further period of three months, when he was again assaulted and tortured.  After three months the applicant was released, on condition that he report to the police twice daily for a month.  He did so, and at the end of the reporting period he resumed his involvement with the RSU.

6. In October 1991 the applicant married a woman from a high caste, a Brahmin, and they moved to an area called Trichy.  Allegations were soon made against him, however, by local Brahmins and in November 1991 he was taken into custody for another three month period, again on suspicion of involvement with the murder of Rajiv Gandhi.  On his release he was informed that he had to report to the police as directed.

7. Some three months later, in May 1992, the RSU protested against a government decision to return Sri Lankan refugees.  The applicant and another party member were caught by police putting up posters and they were subsequently arrested and detained.  After a further three month period of detention, the applicant was transferred to another gaol for three more months before being taken to Vellore, where he was detained for two months.

8. In December 1992 the applicant’s mother travelled to Madras with the aim of presenting a petition in protest against her son’s arrest.  During the course of her visit she was assaulted by security guards, resulting in injuries that required hospitalisation.  She subsequently passed away in January 1993 and the applicant, who was released from custody at the end of December 1992, commenced a proceeding in the Supreme Court to enquire into the circumstances of his mother’s death.

9. The applicant also, early in 1993 and at the instigation of his wife, engaged the services of an agent for the purpose of obtaining a visa to depart India.  This attempt to leave the country failed, however, when the agent disappeared with the applicant’s passport and money.  Following this, the applicant resumed his work with the RSU and on instruction from party leaders began travelling around to address meetings and encourage those suffering abuses to demonstrate and strike.

10. By August 1993 the applicant had made no progress in his attempt to find out about the attack on his mother.  He began a hunger strike in a public office, and in so doing gained the support of 20 – 25 other people.  Their actions led to them being beaten and threatened with arrest and detention unless he ended his hunger strike.  The applicant refused, with the result that he was “arrested, tortured and made to sign a blank paper.”  He was charged with offences such as “illegally keeping arms and inciting to overthrow the government.”  The applicant was held for six months without having his case heard by a court, and was then released on the condition that he report to the police every morning and evening for the following three and a half months.  The police attempted to extend this period of reporting by telling the applicant that it was “by order from the Local Court”, however they refused to show the applicant the order and he did not continue reporting after the expiry of the initial three and a half month period.

11. The applicant was again placed under arrest for a month in 1994, after a protest against plans to supply water to neighbouring villages at the expense of his own ended in violence.  On his release in July 1994 he resumed his protesting, resulting in a further two month detention from September 1994.

12. In January 1995, in response to the treatment to which he had been subjected, the applicant decided to cease working for the party and went to stay in Bombay for three months.  He then travelled to another state in order to obtain work, and stayed in that area for a period of three and a half months, leaving only when conflict began between Hindus and Muslims in the textile mill where he was employed.  Fearful of any further police trouble, he travelled by train to another area.  On arrival there, however, he was confronted by two policemen who believed him to be “a Tiger from Sri Lanka”. The applicant was taken to the local police station and held there for fifteen days before being collected by police from Madras.  After accompanying him back to Madras the applicant was taken to Court and charged with assisting the LTTE, for which he received six months’ detention.  During this period of detention he was assaulted and denied food.  He was released at the end of December 1995 on the condition that he report daily to the police for a month, after which he was told to go back to his village and continue reporting to his local police for a year.

13. The applicant did not continue his political activity, but was again arrested, in February 1997, “on suspicion of involvement in supplying arms to the LTTE and arranging safe houses for them to stay in Tamil Nadu.”  During this detention a guard undertook to help the applicant escape from custody.  His wife then assisted him by arranging for him to stay with her relatives for a few months, while she engaged an agent and made plans for him to depart India which he did, on 23 October 1997.

14. The Tribunal set out its findings in a section titled “Findings and Reasons”.  It began with the statement that it considered that the “applicant’s claims in relation to his caste appear to have been exaggerated”, and went on:

    “While I accept that it is feasible that he was born to a low caste, from his application to the Department it is apparent that he completed high school and following that a Diploma in Mechanical Engineering.  He has described his occupation as a fitter, although he has only referred to his ‘party activities’ in the section of the application form relating to past employment.  He has not provided evidence that he had been persecuted because of his caste, rather for his claimed political activity.  His claims regarding discrimination because he came from a low-caste family appear to be unfounded.  At his hearing he did not dispute DFAT advice that if he had suffered because of his marriage to a Brahmin "Indian law provides recourse in this situation if availed and legitimate complaint upheld". ” (Emphasis added)

    Referring to the opposition to their marriage by his wife’s family, who were of the Brahmin caste, and the subsequent allegations made against him, the Tribunal said:

    “These allegations, however, appear to have been made in the context of the Gandhi assassination.  This does not amount to persecution for reasons of his caste … .  I am not satisfied that the applicant’s fear in relation to his caste is well-founded.”(Emphasis added)

15. The Tribunal accepted the applicant had been involved with the RSU, and considered it feasible that this association “led to his being arrested and detained on some occasions.”  It referred to DFAT advice, however, that:

    “(M)embers of such organisations are free to promote their political views in accordance with Indian law.  If they are subject to political-persecution from rival political parties or other agents they have recourse through the Indian legal system ….  Much Naxalite activity is illegal and those arrested as suspected Naxalites engaged in illegal activities are subject to the due course of the law.

    …

    If arrested they might be subject to human rights abuses by the security forces but, should that happen, there are provisions under Indian law for redress … .  The US State Department has advised that India has an independent judiciary, defendants have the right to counsel and there are effective channels for appeal … .  I am not satisfied that as a member of the RSU the applicant’s fear of persecution is well-founded.”

16. In relation to the applicant’s detention at the time of the assassination of Rajiv Gandhi, the Tribunal stated:

    “I accept that in the applicant’s case his situation may have been exacerbated at the time of the Rajiv Gandhi assassination in 1991 when hundreds of people identified as supporters of the LTTE were arrested.  …  While the applicant may have been detained following the assassination, in what might be regarded as a legitimate state measure, the perpetrators have long since been brought to justice, and the chance of his being targeted again in connection with it are remote.”

17. The Tribunal was not, however, satisfied the applicant had been arrested on all the occasions claimed.  Neither did it consider that he was of on-going interest to the authorities, in view of the fact that he had been able to depart India using his own passport.  It referred to DFAT advice that:

    “(A)irport checks in India were quite thorough and … it would be difficult for an individual to leave the country undetected.  The Department advised, however, that it would be possible for such an individual to leave India travelling on a forged passport or a passport in a different name, and that it would be very easy to obtain such a passport … .  The applicant has not claimed that his passport has been forged, or that it was in a false name.  Indeed, he stated at the hearing that his passport was issued in his own name.  Moreover, a notation on his passport indicates that he had first been issued with a passport in 1988.  I must accept his current passport as genuine, and come to the conclusion that he was not of continuing interest to the police when he left India, as he has claimed.  I am therefore not satisfied that he has had the long list of convictions which he has claimed.”

18. In addressing the applicant’s claim that he would be unable to return to the area in which he had lived, owing to his history of political activity, the Tribunal considered relocation to be a viable option for the applicant.  It said:

    “(D)FAT has advised in a range of cases that there are no general problems which would prevent applicants with concerns about living in one part of India from relocating to another.  It has noted however, that it is necessary to consider issues such as an applicant’s language skills, level of education and employment prospects ….  While the applicant may well come from a low caste, he does not appear to have been disadvantaged.  He has completed tertiary studies and as a fitter could work anywhere in India.  He speaks English, which is widely used throughout the subcontinent.  Relocation would be a viable option for him.”

19. The Tribunal concluded by finding that the applicant was not a person to whom Australia had protection obligations under the Convention, and affirmed the decision not to grant a protection visa.

    Issues raised in the application for judicial review and their consideration

20. The applicant was represented in these proceedings.  Prior to the hearing, written submissions were filed on his behalf by his solicitor, Mr Newman, which were answered by written submissions of counsel for the Minister.  At the hearing, Mr Newman appeared to concede that the Minister's submissions were correct.  Accordingly he sought to impugn the Tribunal's decision on a basis which differed from that developed in the written submissions.  Mr Newman sought leave to amend the application by raising as the judicially reviewable error, the approach of the Tribunal which involved, so it was submitted, the Tribunal equating discrimination with persecution.  This was said to evidence both an incorrect interpretation of the law and a misapplication of the law to the facts.

21. Mr Newman referred to paragraphs in a statutory declaration of the applicant in which he had recounted what had happened to him, because of his caste, when he was at school. The treatment recounted by the applicant was later characterised by him in the statutory declaration as victimisation and discrimination.  He also referred to a paragraph in which the applicant had described his assault and torture (probably in 1980) when in police custody.  He recounted how he had been threatened and abused by the police as "a low caste man" and that the police had said "they would never allow us to take action against high castes.  They said that if I did not stop I would be killed and my family would be eradicated".  Lastly Mr Newman referred to a paragraph concerning the applicant's marriage to a Brahmin and his later treatment by the Brahmin community who physically and verbally abused him and made false allegations about him to the police.

22. I understood Mr Newman to submit that these were all instances of abuse that could or did amount of persecution.  He pointed out, correctly, that the particular complaints of victimisation and discrimination at school were not expressly dealt with by the Tribunal other than a general reference to the applicant "having experienced discrimination because of his caste".  Mr Newman's submission appeared to centre on the highlighted passage of the Tribunal's reasons set out in the first paragraph quoted in [14] above.  I accept that, taken literally, it is not correct to say that the applicant did not provide evidence that he had been persecuted because of his caste.  Views may differ about how one could characterise, either in isolation or cumulatively, the treatment the applicant claimed he had experienced at school and when arrested (in probably 1980).  However it can fairly be described as evidence of persecution because of caste.

23. Nonetheless the expression "has not provided evidence" in the highlighted passage first quoted in [14] above, has to be read in context.  The remainder of the sentence in which it appears (the portion appearing after the comma) would rather suggest that what the Tribunal was referring to was not so much the provision of evidence but rather the advancing of claims.  That is, what the Tribunal was referring to was that the applicant advanced his application for a protection visa on the footing that he had experienced persecution because of his political activities and not because he had experienced lifelong persecution as a member of a particular caste.  Read this way, the Tribunal's reasons are intelligible.  As counsel for the Minister submitted, the Tribunal could reasonably have understood the applicant's account of his experiences early in his life resulting from his low caste, as providing the context of, and an explanation for, his later political activities.  It is true that the Tribunal later says in the second passage quoted in [14] above, that it was not satisfied the applicant's fear in relation to his caste is well founded.  However this, as I shortly explain, is intended to be limited to the consequences of the applicant marrying a Brahmin.

24. I accept that the next sentence in the highlighted passage (that his claims regarding caste based discrimination were unfounded) first quoted in [14] above, is difficult to understand if it is intended to be a reference to, amongst other things, the applicant's experiences at school and the arrest in 1980.  At an earlier point in its reasons, the Tribunal appears to have accepted that the applicant had experienced victimisation and discrimination during his school years.  I rather think that the contention that the claims were unfounded was intended to be a reference to discrimination during the applicant's adult life.  The reference by the Tribunal in the immediately following sentence to the consequences of the applicant marrying a Brahmin, places the statement about the claims being unfounded in a particular context, namely the adult life of the applicant.  Read as a whole, the passages of the Tribunal's reasons containing the extracts which Mr Newman focused on, were no more than an intimation by the Tribunal that it did not accept that the consequences of the applicant marrying a Brahmin justified a conclusion that he had a well founded fear of persecution were he to return to India because of his caste.  While the language the Tribunal used is not entirely clear, it does not reveal error of the type contended for by the applicant.  It is not evident to me that the Tribunal misunderstood what is comprehended by persecution or that it somehow equated discrimination with persecution.

25. The application should be dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated:             1 March 2002

Solicitor for the Applicant:	M Newman, Newman & Associates
Counsel for the Respondent:	M Wigney
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	19 February 2002
Date of Judgment:	1 March 2002