Ramachandran v Minister for Immigration & Multicultural Affairs [2001] FCA 1185

FEDERAL COURT OF AUSTRALIA

Ramachandran v Minister for Immigration & Multicultural Affairs [2001] FCA 1185 PARTHIBAN RAMACHANDRAN, NAGALAKSHMI PARTHIBAN, SENTHIL RAJ PARTHIBAN & PAVITHRA PARTHIBAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS N 20 of 2001 WHITLAM J 29 AUGUST 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 20 of 2001

BETWEEN: PARTHIBAN RAMACHANDRAN

FIRST APPLICANT

NAGALAKSHMI PARTHIBAN

SECOND APPLICANT

SENTHIL RAJ PARTHIBAN

THIRD APPLICANT

PAVITHRA PARTHIBAN

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE OF ORDER: 29 AUGUST 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the respondent's 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 N 20 of 2001

BETWEEN: PARTHIBAN RAMACHANDRAN

FIRST APPLICANT

NAGALAKSHMI PARTHIBAN

SECOND APPLICANT

SENTHIL RAJ PARTHIBAN

THIRD APPLICANT

PAVITHRA PARTHIBAN

FOURTH APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: WHITLAM J

DATE: 29 AUGUST 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application under s 476 of the Migration Act 1958 ("the Act") for review of a decision of the Refugee Review Tribunal ("the Tribunal") made on 12 December 2000 affirming a decision to refuse to grant protection visas to the applicants. A criterion for the grant of a protection visa under s 36 of the Act is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (together "the Convention"). 2 The first applicant is a Hindu Tamil from the state of Tamil Nadu in the south of India. He made five business trips to Australia in the period after April 1996 and prior to April 1997. On a sixth trip in May 1997 he arrived in Australia as a temporary business entrant and was accompanied by his wife, the second applicant, and their children, the third and fourth applicants. 3 The applicants applied for protection visas on 13 June 1997. The first applicant based his claim on his activities as a lawyer and his membership of the People's War Group ("PWG"), an offshoot of the Communist Party of India–Marxist-Leninist ("CPI-ML"). PWG constitutes the largest group among the Naxalites, whom the delegate of the respondent ("the Minister") described as "revolutionaries fighting to overturn the Indian caste system". The first applicant also claimed some affiliation with the Liberation Tigers of Tamil Eelam ("LTTE") and the People's Union for Civil Liberties ("PUCL"). The second applicant's claims rested on her membership of the All India Women's Association ("AIDWA") which is linked to the Communist Party of India–Marxist. 4 On 20 November 1997 the delegate refused to grant protection visas to the applicants. She concluded that "…there is not a real chance of persecution for a Convention ground if they are returned to India … their fear of persecution on return is consequently not well founded". 5 On 15 December 1997 the first applicant applied, on behalf of himself and the other applicants, to the Tribunal for review of the delegate's decision. The first and second applicants submitted separate typed reasons for disagreeing with the delegate's decision. The first applicant gave further details of the facts grounding his claim, challenged the delegate's findings on his position in various groups and questioned the reliability of country information referred to by the delegate. The second applicant also questioned the reliability of certain country information and disputed the delegate's failure to recognise her importance in AIDWA. 6 The first applicant subsequently submitted voluminous material to the Tribunal. Both the first and second applicants appeared before the Tribunal and gave oral evidence on 16 September 1999 and 21 October 1999. The term of the appointment of the member constituting the Tribunal at those hearings ceased before he was able to make a decision on the review and the Tribunal was therefore reconstituted by a new member in accordance with s 422 of the Act. 7 On 24 August 2000 the Tribunal wrote to the first applicant informing him that it was not prepared to make a favourable decision on the information already provided and a further hearing would be held on 16 October 2000. At the same time it informed the first applicant that the Minister had received an anonymous communication dated 12 November 1997 which alleged, inter alia, that the first applicant was involved in bringing people from India to Australia for large sums of money. The Tribunal invited the first applicant to comment on the anonymous letter in writing by 14 September 2000. On 14 September 2000 the first applicant provided a six-page statutory declaration to the Tribunal stating that the anonymous letter was "false, baseless, frivolous and without any justification" and attached thirty-one pages of bills, income tax forms, passport copies and receipts for purchases made whilst in Australia. 8 At the hearing before the Tribunal on 16 October 2000 the second applicant failed to attend. On 17 October 2000 the Tribunal notified the first and second applicants that they were both required to attend to give evidence on 10 November 2000. By letter dated 6 November 2000, the second applicant withdrew her application. However, she attended the hearing before the Tribunal on 10 November 2000 and indicated that she did in fact wish to make claims in her own right. On 12 December 2000 the Tribunal affirmed the delegate's decision not to grant protection visas to all four applicants. 9 The Tribunal prepared a carefully reasoned forty-one page statement under s 430(1) of the Act. In relation to the first applicant, the Tribunal (at p 25) placed no weight on the anonymous letter dated 12 November 1997 and accepted (at pp 25-26) that the first applicant faces four charges still pending in India, one for murder in connection with his activities as a member of the PWG, another for speaking in support of the assassination of Rajiv Ghandi at a meeting of the Radical Youth League, a third for demonstrating against the forced repatriation of Sri Lankan refugees and fourth for participating in a PUCL organised demonstration. The Tribunal member stated (at p 31): "So far as the four outstanding criminal cases against the Applicant are concerned … it is well established that the enforcement of a law of general application is not, without more, persecution for a Convention reason: see Applicant A [v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225]…per Dawson J at 244-5 … and per McHugh J at 258-9. In order to come within the terms of the Convention the prosecution would have to be selective on one of the Convention grounds or, for example, a person would have to be punished more harshly for a Convention reason than other convicted of the same offence: See Z v Minister for Immigration and Multicultural Affairs [(1998) 56 ALD 155]. As I put to the Applicant, it appears to me from his evidence that in each case where he has been charged there is some basis for the charges." 10 The Tribunal also noted (at p 26) that the latest charge was for the PUCL demonstration in 1995 but the first applicant was, despite the outstanding charges, able to renew his passport and travel overseas five times in 1996 and 1997. It considered (at p 34) that the fact that the first applicant did not apply for refugee status on any previous visits to Australia suggested that he did not fear that he would not receive a fair trial on the four outstanding charges if he were to return to India. 11 The Tribunal accepted (at p 27) the first applicant's evidence that he had attracted the enmity of the police chief of Tamil Nadu, an activist from the Dravida Munnetra Kazagham ("DMK") and angry investors in the Sneham Finance and Investment Group, a group of insolvent companies. However, it found (at p 35) that "the enmity of the parties did not appear to be 'by reason of' the Applicant's political opinion or any other Convention reason". On the evidence before it, the Tribunal found that he attracted the ire of the police chief and the DMK activist by preparing criminal complaints against them and that angry investors ransacked his house because he acted for the management of the failed investment group. It also doubted that the fear was "well-founded" because the problems predated the last of his five visits to Australia. 12 The Tribunal also accepted (at p 26) that in March 1993 the first applicant's printing press was ransacked by sympathisers and activists of the Rashtriya Swayamsevak Sangh ("RSS") as a result of his distribution of an impact report on the destruction of the Babri Mosque in Ayodhya but again noted (at p 37) that his claimed fear of reprisals was undermined by the fact that he has had no further contact with the RSS since 1993. It also accepted (at p 26) that his house was raided by the Tamil Nadu Crime Branch Criminal Investigation Department for papers relating to the "Halliburton" case, in which two of the defendants were LTTE supporters. The Tribunal found however (at p 35), that "these actions were motivated not by the Applicant's political opinion but by the political opinion of the clients the Applicant was acting for at the time". 13 The only factual assertion the Tribunal rejected was that the first applicant brought two LTTE video cassettes back to Madras after his fifth trip to Australia in April 1997. The first applicant stated in his visa application that "police started looking for me to arrest" after a friend who watched the videos was caught and tortured by police until he revealed the first applicant's name. The Tribunal did not accept (at pp 27-28) that the first applicant took the tapes back to India for a number of reasons, including the implausibility of someone who was facing four criminal cases in Tamil Nadu and the hostile attention of a DMK activist courting trouble by taking cassettes of that type back with him. It also did not accept (at p 29) that someone who was being searched for by police would be able to leave the country undetected. The Tribunal preferred on this point the advice of the Department of Foreign Affairs and Trade that no-one of concern to the authorities and for whom an arrest warrant was in force would at that time be able to leave India either undetected or by bribery. The Tribunal did also not accept, by virtue of the first applicant's occupation as a lawyer and involvement as an activist, his claim that he did not know the LTTE was a banned organisation in India. 14 In relation to the second applicant, the Tribunal accepted (at p 38) her evidence that she joined the AIDWA in 1995, that she was the Madras District Secretary and that she was arrested on three occasions in 1995 and 1996. It also accepted that she and her family members had been threatened with physical violence on a number of occasions. 15 However, the Tribunal noted (at p 38) that the second applicant had been arrested three times because she had protested without giving proper information to the police. It also noted that she was either not charged by the police or the charges were withdrawn or dismissed in court. The Tribunal found that the enforcement of a law of general application is not, without more, persecution for a Convention reason. 16 In relation to the threats of violence and the second applicant's membership of the AIDWA, the Tribunal determined (at pp 39-40) that the attacks were not motivated by a political opinion imputed to the second applicant or the political tenets of the AIDWA and so were not attacks for a Convention reason. 17 The Tribunal considered separately (at p 40) the question of whether the second applicant was subject to persecution for a Convention reason as a result of belonging to a "particular social group", being her family, the other applicants. While the Tribunal accepted that a family may constitute a social group, it did not accept on the evidence before it that the second applicant had been persecuted by reason of her membership of the first applicant's family nor would she be in the future. 18 The application for an order of review of the decision of the Tribunal was filed on 8 January 2001 by a solicitor. The alleged grounds of review unhelpfully state in opaque language: "1. Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision were not observed [s 476(1)(a)]. 2. 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 Tribunal [s 476(1)(e)]. 3. There was no evidence or other material to justify the making of the decision [s 476(1)(g)]." 19 The applicants' solicitor did not file written submissions and at the hearing of this matter on 11 April 2001 he appeared by counsel and sought leave to file in Court a notice of ceasing to act pursuant to O 45 r 7 of the Federal Court Rules. With the aid of a Tamil interpreter, I told the first applicant that his solicitor no longer wanted to act for him and asked him if there was any reason I should not give leave to his solicitor to withdraw from the proceedings. He stated, without the use of the interpreter, that "I wish to go myself…I wish to act myself". Accordingly, I granted leave to the solicitor to file a notice of ceasing to act, which he did on 20 April 2001. 20 Not long after the first applicant had commenced submissions on his own and the other applicants' behalf, he interrupted the interpreter and asked that he be permitted to read a written statement in English. Reluctantly, I acceded to this request although I was by no means confident that the first applicant was the author of the script and fully understood what he was saying. 21 The first applicant did not, in his oral submissions, raise any matter relevant under pars (a) or (g) of s 476(1) of the Act. So far as the second ground is concerned, namely that the Tribunal erred in law under s 476(1)(e) of the Act, the first applicant argued that the Tribunal erred by: (i) disbelieving that he transported LTTE video cassettes to Madras and that he was not aware that the LTTE was a banned organisation; (ii) finding that the four charges pending against him were not motivated by his political opinion; and (iii) failing to find that he would be arrested, tortured and killed on his return to India. 22 As counsel for the Minister pointed out in her written submissions, it was open to the Tribunal to find the first applicant's account of the LTTE video cassettes as "implausible" and otherwise unacceptable. It was also open to the Tribunal to reject the first applicant's claims that he was unaware that the LTTE was a banned organisation 23 In finding that the four outstanding charges were related to laws of general application rather than Convention reasons, the Tribunal referred itself to the decisions of Applicant A and Z (see [9]). I am satisfied that the Tribunal correctly interpreted the applicable law in those decisions and applied the correct law to the facts of this case. 24 The first applicant's final submission was, in effect, that the Tribunal erred in finding he did not have a well-founded fear of persecution on returning to India. In support of this proposition, he cited the decision of Moore J in Devarajan v Minister for Immigration and Multicultural Affairs [1999] FCA 796. In that case Mr Devarajan, like the applicant, was a citizen of India whose application for a protection visa was refused by a delegate of the Minister whose decision was affirmed by the Tribunal. Mr Devarajan was also a lawyer who had courted trouble with various community members including rich landlords, businessmen, corrupt politicians, party leaders and other authorities, including the Chief Minister of Tamil Nadu and was wanted on a charge of attempted murder. 25 The Court, in setting aside the Tribunal's decision, stated (at [27]): "…The persecution which arguably arose from the expression of [the] applicant's political opinion in the past might well found [a] conclusion that there is a real prospect of persecution in the future. Ultimately, however, that will be a matter for the Tribunal to determine. The Tribunal was, in my opinion, unduly distracted by the question of whether, as a matter of fact, the applicant faced criminal proceedings and possible imprisonment on charges of attempted murder, sedition and conspiracy were he to return to India. What it failed to recognise was the potential significance of the applicant's long history of social and political activism and the deleterious consequences he had suffered as a result. In so doing it committed an error of the type identified in s 476(1)(e)." 26 In the present matter, I am satisfied that the Tribunal did not fail to recognise the potential significance of the first applicant's history of political activism. Indeed, it expressly acknowledged this difficulty in its reasons for decision when it stated (at p 37): "I accept that if the Applicant returns to India now or in the reasonably foreseeable future he will continue to be a member of the CPI-ML and an active participant in the PUCL. However, having regard to the evidence that the CPI-ML is now participating in the parliamentary political process, and that leftist groups are not targeted by the authorities in Tamil Nadu…, I do not consider that there is a real chance that the Applicant will be persecuted by reason of his involvement in either the CPI-ML or the PUCL." 27 I note that the first applicant did not refer to the claims of his wife, the second applicant, in his oral submissions. I am unable to find anything in the Tribunal's reasons for decision which might suggest that, in respect of her, it failed to follow proper procedures, made an error of law or made the decision without evidence to justify it. 28 The application will be dismissed with costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Whitlam.