Subramaniam, Salem v Minister for Immigration and Multicultural Affairs

[1998] FCA 483

FEDERAL COURT OF AUSTRALIA

IMMIGRATION - Application for review of decision of Refugee Review Tribunal affirming decision of respondent to refuse to grant protection visas to the applicants - whether Tribunal decision involved an error of law - whether applicants refugees within definition in Article I of the Refugees Convention - where applicants claimed membership of a particular social group on basis of Brahmin caste or disabilities of the third applicant - whether applicants would be persecuted on the basis of membership of either of these particular social groups - whether Tribunal applied correct test of “persecution”.

Migration Act 1958 (Cth) s 476(1)(e)

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, cons
Minister for Immigration & Ethnic Affairs v Guo (1997) 144 ALR 567, foll
Minister for Immigration, Local Government & Ethnic Affairs v Mok (1994) 55 FCR 375, disapp
Minister for Immigration & Ethnic Affairs v Wu (1996) 185 CLR 259, foll
Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248, appl
Repatriation Commission v Bendy (1989) ALD 144, refd

SALEM SUBRAMANIAN & OTHERS v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 72 of 1997

DAVIES J
4 MAY 1998
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 72  of   1998

BETWEEN:

SALEM SUBRAMANIAN
FIRST APPLICANT

THARA SUBRAMANIAN
SECOND APPLICANT

SHAKTHISAI GANESH SUBRAMANIAN
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

DAVIES J

DATE OF ORDER:

4 MAY 1998

WHERE MADE:

SYDNEY

MINUTES OF ORDER

THE COURT ORDERS THAT:

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	NG 72 of 1998

BETWEEN:

SALEM SUBRAMANIAN
FIRST APPLICANT

THARA SUBRAMANIAN
SECOND APPLICANT

SHAKTHISAI GANESH SUBRAMANIAN
THIRD APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	DAVIES J
DATE:	4 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This application seeks orders of review with respect to a decision of a Refugees Review Tribunal ("the Tribunal") which affirmed a primary decision not to grant protection visas to the applicants, Salem and Thara Subramanian and their son, Shakthisai Ganesh Subramanian.  The applicants had sought such visas on the ground that they were refugees from India.

The application is brought under s 476 of the Migration Act 1958 (Cth) which provides, inter alia:

"476(1)   Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

...

(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;

..."

Ganesh Subramanian, the son of  Salem and Thara Subramanian, is severely disabled.  A report dated 30 October 1996 summarised his state as follows:

"... Ganesh is now five years old and has the following current medical problems:

1.Upper airway obstruction.  He has had a tracheostomy which was closed in September 1996.  He had sleep studies performed at the New Children's Hospital and at Royal North Shore Hospital and these studies confirmed that there was still some degree of obstructive sleep apnoea.  His tonsils and adenoids were removed and a bronchoscopy revealed some persistent laryngomalacia or floppy larynx and tracheomalaciaq secondary to the tracheostomy.  Post-operatively there was a degree of air leak.  Since that time he has had a repeat sleep study which has shown some improvement in his obstructive sleep state.  His parents report that he remains very restless in sleep.

I have anticipated that the tracheostomy will need to be reopened and that as he gets older the upper airway will continue to improve.

There is a small risk that he may require nasal septate in an attempt to splint his upper airway at night.

2.Development delay:  Ganesh continues to make some progress but still has moderate developmental delay.  He is attending special school.  He will continue to require intensive support throughout his life.

3.Therapy:  from this point of view Ganesh will continue to require occupational therapy, speech therapy and physiotherapy.

We are very happy with Ganesh's progress as he is now able to walk, communicate a little and indicate his needs.  He is currently functioning at some levels, at a two year old functional level..."

The Tribunal accepted that Ganesh, who was born in Australia, will be gravely disadvantaged if his parents return to India and he is sent out of Australia with them.  The Tribunal said:

"There is no doubt on the material which has been presented that the ongoing needs of Ganesh would be better met in Australia than India.  It is apparent that to reach his full potential Ganesh requires intensive educational assistance and on-going medical treatment.  There is clear evidence that such resources are either in short supply or not available in India.  This will result in Ganesh not progressing at the rate which he would in Australia and in relation to his sleep apnoea could result in his serious harm or death.  The lack of appropriate rehabilitation and educational services would also breach various provisions of the CRC as the Applicant has claimed."

However, the issue before the Tribunal was whether the applicants were refugees within the definition in Article I of the Refugees Convention, which 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."

The hardship which Ganesh would suffer if sent to India is not of itself a relevant ground for the operation of the Refugee Convention.  The Convention requires a "well-founded fear of being persecuted" and, relevantly, that that fear be "for reasons of .... membership of a particular social group".  Mr & Mrs Subramanian and Ganesh are Brahmins.  As the claims of persecution by Mr & Mrs Subramanian in their own right were slight and were not accepted by the Tribunal, it was necessary for the applicants to establish that they had a well-founded fear that Ganesh would be persecuted in India by reason of his being a disabled person or being a Brahmin or both.

The Tribunal was content to accept that, on the basis of his disability or caste, or those factors combined, Ganesh could be characterised as being of  a particular social group.  The Tribunal therefore turned its mind to the question whether Ganesh would be persecuted on this basis should he be sent to India.

The Tribunal enunciated the principles of "persecution" in terms which are unexceptional and which I need not repeat.  The Tribunal later went on to say:

"... the issue of what constitutes persecution for a Convention reason has been given judicial interpretation in Australia.  In Chan's case [Chan Yee Yin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379] Mason C.J., at 388 refers to:

some serious punishment or penalty  or  some  significant  detriment  or     disadvantage if he returns. Obviously harm or the threat of harm as  part of a course of  selective  harassment  of  a  person,  whether  individually or as a member of a group subjected to such harassment by reason of membership of the group, amounts to persecution if done for a Convention reason.

McHugh J., in Chan's case at 430, states:

As long as the person is threatened with harm and the harm can be seen as part of a course of systematic conduct directed for a Convention reason against that person as an individual or as a member of a class, he or she  is `being persecuted' for the purposes of the Convention.

Burchett J in Kuldip Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314 at 317 expanded upon this, stating:

Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm.  People are persecuted for something perceived about them or attributed to them by their persecutors ...".

Those last words of Burchett J have often been cited with approval.  His Honour's remarks are implicit in the earlier passages mentioned for both refer to the infliction of harm. 

The Tribunal concluded that Ganesh would not be subjected to persecution should he be removed to India.  The Tribunal said:

"The material referred to above indicates that the Indian Government has recently passed legislation to entrench the rights of the disabled and the United States Department of State Report on Human Rights Practices and other material refers to some government programs which are designed to assist those with disabilities.  These factors point to an awareness of the issues facing the disabled, even if the response is inadequate in the face of the need which is present in India.  ... The Tribunal does not accept that the Indian Government through either its acts or omissions is trying to persecute those with particular disabilities, whether of a particular caste or not.

Likewise, the material presented by the Applicants subsequent to the hearing indicates that services for those with disabilities in India do exist and offer what their resources and technology allow.  Both the RV Hospital and the Home for Disabled in Annanagar indicate that the extensive services needed by Ganesh are not available or may be found wanting in a crisis.  Both also indicate that Ganesh's needs would be better met in Australia.  Neither, however, suggest that the services required are available but would not be used to treat  Ganesh by reason of his caste or for any other reason.  The tone of these responses to the Applicants' enquiries do not suggest unfeeling or persecutory service providers, but they do reinforce the evidence of the inadequacy of resources available in India.  The Tribunal does not believe that Ganesh would be the subject of a course of systematic conduct by the Government or any other group in Indian society which is intended to persecute him either on the basis of his disability, his caste or a combination of those factors.

The social issues which face the Applicants were they to return to India are clearly of consequence.  This includes the fact that Ganesh may be ridiculed because of his condition and that the family may feel pressure to undertake certain rituals to which they do not ascribe in order to attempt to heal Ganesh.  In this regard, the fact that Ganesh has a very supportive and concerned family who can provide him with assistance and protection from hurt is important.  It is likely that the family will have to be more protective of Ganesh's interests because of his condition than they would need be if he did not suffer from it, however, the Tribunal is not satisfied that such difficulties as would be encountered constitute a well-founded fear of being persecuted for the purposes of the Refugees Convention.

... Beyond the Applicants' assertion, and the clearly inflammatory appeal letter from the South Indian Brahmins' Association, there is simply no evidence that being of the Brahmin caste would affect Ganesh's access to what rehabilitation and medical services exist in India.  The operation of scheduled caste and tribe legislation in both intention and operation appears designed to better the place of lowly castes and tribes in India, members of which have suffered historical discrimination.  The Tribunal does not believe that it is possible to portray such measures as an attempt to persecute those of more populous or prosperous castes, such as Brahmins."

These passages appear to me to have approached the issues before the Tribunal in a correct manner and to have arrived at a sensible and proper conclusion. 

Dr S.C. Churches of counsel, who appeared for the applicants, submitted that the Tribunal's use of the words "intended" and "trying" was wrong in that, according to the submission, intention to persecute is not necessary and persecution may be found in the differential impact of actions on particular persons or classes of persons.  Dr Churches relied on the following passage in Goodwin-Gill's The Refugee in International Law, 2nd Ed, p.51:

"Of course, intent is relevant; indeed, evidence of persecutory intent may be conclusive as to the existence of well-founded fear, but its absence is not necessarily conclusive the other way.  A persecutor may intend to harm an individual because of/for reasons of/on account of that person's race or religion.  Similarly, a persecutor may intend to harm an individual because of an opinion expressed, or a decision or action taken, irrespective or regardless of that individual's actual motivation or conviction.  If that opinion, decision, or action falls within the category of protected interests (freedom of religion, expression, opinion, conscience, and so forth), and if the harm visited or feared is in fact of a degree to amount to persecution, then a sufficient link may be inferred on which to base a well-founded fear of persecution within the meaning of the Convention.  There are slight but important differences between the terms on account of and for reasons of.  `On account of', which is not the language of the Convention, implies an element of conscious, individualised direction which is often conspicuously absent in the practices of mass persecution."

However, this passage does not support Dr Churches' contention.  It accepts the need for an intent to harm and accepts that the attitude of the alleged persecutor is important.  The author is merely making the point that the words "because of" or "on account of" should not be substituted for the term "for reasons of", which the Convention uses.  One example of the difference is that there may be a well-founded fear of persecution where there is persecution of persons of a particular political opinion and it would be likely to be thought that the individual concerned held that opinion.  In that event, it would not matter that the individual did not in fact hold that opinion.  That is why Goodwin-Gill distinguished between mass persecution on the one hand and the conscious, individualised direction of persecutory acts on the other.  Goodwin-Gill emphasised that the matter must be approached from the perspective of the persecutor.

In his evidence before the Tribunal, Mr Subramanian put his allegation of discrimination on two bases.  One basis was that handicapped persons such as Ganesh were discriminated against because there were not, in India, the facilities which were needed for their development.  The point was put, for example, that ordinary schools would not accept Ganesh because he could not keep up with the work.  Moreover, it was said, he would be likely to be scorned and teased by the children because he was a handicapped person.  Mr Subramanian said that, in the Hindu religion, there was a belief about Karma and that suffering and disability tended to be attributed to a person's Karma.  There was a belief that little or nothing could be done to change it.  Mr Subramanian said that, in the result, there was little impetus for change and that the National Government spent money on matters such as nuclear weapons rather than on facilities for the disabled.  The second basis put was that Brahmins were being discriminated against, particularly in Southern India where Mr & Mrs Subramanian had lived.  Both the National Government and the State Government were enacting laws which positively discriminated in favour of certain groups who in earlier years had been disadvantaged by the caste system and like factors.

On the basis of this evidence, Dr Churches submitted that, if they were returned to India, there would be discrimination against the applicants, particularly Ganesh, that the discrimination in Ganesh's case would be of such a nature as to be seriously detrimental to his health and well-being, and would amount to persecution.  Dr Churches referred to the statement by McHugh J in Chan at 430 that "Measures `in disregard' of human dignity may, in appropriate cases, constitute persecution".

In my opinion, the Tribunal's approach to the matter was correct.  The Tribunal concluded that there is no intention in India to ignore, harm or oppress disabled or handicapped persons.  There is simply a lack of the sophisticated facilities which a country such as Australia can provide.  The Tribunal pointed to the fact that the Indian Government had recently passed legislation providing for the recognition of the rights of the disabled and that steps are being taken to overcome the problem which the disabled face.  The Tribunal concluded that the difficulties which Ganesh would face in India arose not from the fact that there were facilities in India of which he would not be able to take advantage, but from the fact that such facilities were not yet available in India.  As to the alleged discrimination against Brahmins, the Tribunal rejected the view that actions were being taken to persecute Brahmins.  The Tribunal considered that the steps being taken to better the condition of lowly castes and tribes in India were taken to alleviate the position which some disadvantaged castes and tribes have faced and not directed at harming members of the Brahmin caste. 

In my opinion, the Tribunal's approach to these questions was correct. 

Dr Churches further submitted that the Tribunal applied an incorrect test of persecution.  Dr Churches referred to a passage in the transcript in which the Tribunal shortly summarised for the benefit of Mr Subramanian the nature of the concept of persecution.  In my opinion, the Tribunal's summary was accurate as a short summary.  However, I should also make it clear that, in my opinion, it is unsound and likely to lead to error to challenge a decision-maker's approach to the law, not by what the decision-maker has said in his or her reasons for decision, but by reference to what was said during the course of the hearing.  At least in cases where the decision is reserved and written reasons are given at the time of the issue of the decision, the reasons as expressed by the decision-maker are the embodiment of the decision-maker's considered view and it is on the basis of that view that the decision has been made.   Thus, in The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248, Barwick CJ, Gibbs, Stephen & Mason JJ said at 264:

"During the course of argument a judge will often follow the common, and      sometimes necessary, course of  formulating  propositions  for the purpose of enabling their  correctness  to  be  tested,  and  as  a general rule anything that a judge says in the course  of  argument will be merely tentative and exploratory. "

See also Repatriation Commission v Bendy (1989) 18 ALD 144 at 148. Except when fraud or bias is alleged, courts will rarely allow an attack to be made to a decision on the basis that during the hearing the decision-maker expressed views other than those which were expressed in the reasons delivered.

The remaining challenge to the decision was that the Tribunal did not apply the correct test of  "well-founded fear of persecution".  Dr Churches referred to Chan’s case where McHugh J said at 429:

"As  the United States Supreme Court pointed out in Cardoza-Fonseca an applicant for refugee status may have a well-founded fear of persecution even though there is only a 10 per cent chance that he will be shot, tortured or otherwise persecuted.  Obviously, a far-fetched  possibility of persecution must be excluded. But if there is a real chance that the applicant will be persecuted, his or her fear should be characterized as "well-founded" for the purpose of the Convention and Protocol."

Dr Churches submitted that so long as there was a possibility which was not far-fetched that the applicants might suffer persecution in India, that was sufficient.  Dr Churches submitted that the Tribunal adopted an objective test without placing sufficient weight upon the applicants' subjective fears. 

It appears to me that, in his submission, Dr Churches took the approach which was first enunciated by this Court in Minister for Immigration, Local Government andEthnic Affairs v Mok (1994) 55 FCR 375 but which has since been discredited following the decisions of the High Court of Australia in Minister for Immigration and Ethnic Affairs v Wu ShanLiang (1996) 185 CLR 259 and Minister for Immigration & Ethnic Affairs v Guo (1997) 144 ALR 567. In the latter case in particular, the Court suggested that it would be better for the decision-makers to apply the terms of the Convention rather than to express the test in the terms of "real chance", the term which had been adopted by the High Court in Chan and which was the subject of remarks by McHugh J which I have set out above.

As was made clear in Wu and Guo, it is not improper for a decision-maker, before turning his or her mind to the issue of the likelihood of persecution, that is as to whether a fear of persecution is well-founded, to form a view about the basic facts of the case.  It was pointed out in Wu at 281 and Guo at 578 that the formation of an opinion that one version of the facts is more probable than another is not necessarily inconsistent with the correct application of the Chan test.  It is indeed after a view of the basic facts has been formed that the decision-maker can turn his or her attention to determining what is the likelihood of persecution, that is to say, whether the fear of persecution is well-founded.  In making this assessment, some degree of speculation may be involved as it is usually not known how the facts will turn out when the individual is returned to his or her homeland.  It was in this context that the Court discussed the real chance test in Chan. 

It was not inconsistent with the correct test that the Tribunal should reject some of the evidence which Mr Subramanian gave or the text of the letter from the South Indian Brahmins' Association which the Tribunal regarded as clearly inflammatory.  Nor was it wrong for the Tribunal to conclude that, in India, the National Government and the State Governments did not persecute handicapped persons such as Ganesh or that, in India, Brahmins were not persecuted.

In the circumstances, the challenges to the decision must fail.  I agree with the submissions of Mr R.T. Beech-Jones, counsel for the Minister for Immigration & Multicultural Affairs, that no error of law in the Tribunal's decision has been established and, in particular, that the material before the Tribunal did not establish that, in India, there was systemic denial of medical or educational services to members of the Brahmin caste or any systemic denial of such services to physically or mentally handicapped Brahmin children. 

For these reasons, the application will be dismissed with costs.

I certify that this and the preceding nine (9) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies

Associate:

Date:  4 May 1998

Counsel for the Applicant:	Dr S.C. Churches
Solicitor for the Applicant:	Adrian Joel & Co
Counsel for the Respondent:	R.T. Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 April 1998
Date of Judgment:	4 May 1998