Shah v Minister for Immigration & Multicultural Affairs [2000] FCA 489 (4 April 2000)

Last Updated: 26 April 2000

FEDERAL COURT OF AUSTRALIA

Shah v Minister for Immigration & Multicultural Affairs [2000] FCA 489

SWETAL KUMAR NAVINCHNADRA SHAH v

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1039 OF 1999

TAMBERLIN J

SYDNEY

4 APRIL 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1039 OF 1999

BETWEEN:	SWETAL KUMAR NAVINCHNADTA SHAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	4 APRIL 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for review is 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	N 1039 OF 1999

BETWEEN:	SWETAL KUMAR NAVINCHNADTA SHAH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	4 APRIL 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") concerning an Indian citizen who applied for a protection visa which was refused by a delegate of the Minister for Immigration and Multicultural Affairs. The grounds on which the appeal is raised and which the application for review is made concern the claim by the applicant that as a homosexual he is a member of a group which is liable to persecution for a Convention reason. The facts that the applicant was a homosexual, and that homosexuals are members of a particular social group, were accepted by the Tribunal. It was, in particular, accepted that this is a particular social group that is cognisable or identifiable in Indian society.

2 The facts concerning the matter and the relevant background legislation are fully set out in the decision of the Tribunal under review and I will not repeat them here. Suffice it to say that the pattern of the decision follows a format which occurs frequently, whereby the legislation is set out, there are references to the relevant tests in the case law, the evidence is summarised, there is then reference to country or independent evidence followed by discussion and findings.

3 In this particular case the Tribunal found or acknowledged that discriminatory employers in India may well dismiss the applicant if his sexual orientation became known to them. However the Tribunal believed that, in general, there would be no reason why an employer would learn of his sexual orientation and found that he would not be hindered in finding employment if he were to return to India. The Tribunal also found it was not unreasonable to expect that he could live with his partner in India without his place of employment knowing of his private circumstances.

4 The conclusion reached by the Tribunal was that in all of the circumstances it was satisfied that the applicant could return to India and practice his sexuality without facing a real chance of persecution. It did form the view that it was likely the applicant would encounter public prejudice, but on the available information the Tribunal was led to the conclusion that the applicant would not face mistreatment that would amount to persecution.

5 Several criticisms are made in relation to the decision of the Tribunal by counsel for the applicant. The first is that the Tribunal failed to take into account, in determining the question of persecution, the cumulative effect of the findings which the Tribunal had made. It is said that what in fact happened in the formation of the judgment was that the Tribunal member considered the matters separately and that this was in error. In my view this submission has not been made out.

6 At page 9 of its decision the Tribunal sets out the matters which have been alleged, and which it accepts as having occurred, on a consideration of the evidence. In particular it concluded that the applicant had never been charged with any offence or subjected to any State sanction or punishment. What the applicant claimed, and the Tribunal accepted, was that he had been physically assaulted, that he had had his home damaged and was threatened, and that he was unable to seek police protection. The Tribunal also accepted that the applicant had been forced to leave two places of employment and an educational institution when his sexual orientation became known. It also found that the applicant had been vilified by neighbours and disowned by his family, and had had to move away from where he was raised. Having made these findings the Tribunal then went on to find that the single assault, having to leave two places of employment and an educational institution, as well as the vilification and harassment the applicant suffered was distasteful and upsetting but did not amount to a serious punishment or penalty.

7 In these circumstances, and having regard to this language and the way in which the Tribunal approached the question of persecution, I am not satisfied that there was any error in the sense of failing to take into account the cumulative effect of the matters which had been raised and on which findings were made. It is common ground that the determination of whether treatment amounts to persecution is a matter of fact and degree. In this case there was clearly material before the Tribunal, including independent country information, which would support the Tribunal's determination of this question. I am satisfied that the finding under challenge has not been attacked sufficiently to demonstrate that there has been any error of principle or law in the application of the test.

8 There is no criticism that the test has been misstated. Rather the applicant's argument is that the Tribunal ought not to have come to the view which it did on the question of persecution. In particular, reliance was placed on a decision of Branson J in the case of Kanagasabai v Minister for Immigration and Multicultural Affairs (1999) FCA 205. The circumstances in that case were quite different and I do not think that any guidance from it can be obtained in the present case, which has to be considered on its own facts. Kanagasabai's case concerned a seventy-six year old widow who had had quite a different history of harassment to the applicant. In no way does it shed any light on the present circumstances.

9 Reference was made in the course of argument to the Office of the United Nations High Commissioner for Refugees Handbook on Procedures & Criteria for Determining Refugee Status 1988. This sets out some general principles for interpreting the Convention but essentially the text which has to be applied is that which is set out in the section. While some useful guidance can be obtained from the Handbook it is not determinative in any sense. In any event I am not satisfied that the determination infringed any of the principles set out in that Handbook.

10 The second matter which was raised by the applicant was that the Tribunal erred in finding that the applicant could return to India and practice his sexuality, without facing a real chance of persecution, if he relocated to another city. It was pointed out that the first city in which the applicant had worked for a period of several years, but where he had been found to be a homosexual and as a consequence ultimately dismissed from employment, was a city of over 1,000,000 inhabitants. It is said this was a factor which had not been taken into account by the Tribunal.

11 There is nothing in the Tribunal's decision to indicate to me that this consideration was overlooked. When the Tribunal was speaking of cities it was speaking in terms of a large city, and not a city of any particular size. There was ample evidence before the Tribunal to the effect that tolerance for homosexuality was increasing in India. In particular there was recent DFAT information to the effect that while the treatment of homosexuals varies from region to region, larger cities such as New Delhi and Mumbai have quite active gay and lesbian communities and homosexuality in these cities is generally tolerated.

12 This information may, if exhaustively examined, be correct or incorrect, but it seems to me that there was material available for the Tribunal on which to reach the finding which it made. I am not satisfied that any error of principle occurred in relation to the finding that it would be possible to relocate.

13 In general I should say that the decision of the Tribunal did fully canvas the material from both points of view in relation to the position in India and it is fair to say, I think, on a reading of the material which is referred to under the heading Independent Evidence, that the more recent evidence indicates a situation where there is increasing tolerance. In my view there was sufficient material to indicate that the Tribunal had reached not only a decision which was open to it but on the material it seems to be the correct decision. In particular, in the "Conclusion" the Tribunal member referred to having considered the evidence as a whole and firmly expressed the view that it was not satisfied that the applicant was a person to whom Australia had protection obligations.

14 For the above reasons I am not satisfied that any grounds for review have been made and accordingly I dismiss the application.

15 I dismiss the application for review with costs.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated: 20 April 2000

Counsel for the Applicant:	Ben Zipser
Solicitor for the Applicant:	Jamnadas & Associates
Counsel for the Respondent:	Stephen Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	4 April 2000
Date of Judgment:	4 April 2000