CATCHWORDS
MIGRATION - Refugees - Well-founded fear of persecution - Obligation of Refugee Review Tribunal to make enquiries.
Migration Act 1958, ss 36, 353, 363(1)(d), 420, 427(1)(d), 476
Migration Reform Act 1992, s 39
Minister for Immigration and Ethnic Affairs v Mohinder Singh (1997) 142 ALR 191
Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL v JAGJIT SINGH SG 50 of 1996
COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ
PLACE: Adelaide
DATE: 7 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
SOUTH AUSTRALIAN DISTRICT REGISTRY ) No SG 50 of 1996
GENERAL DIVISION )
BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL
Appellants
AND: JAGJIT SINGH
Respondent
COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ
DATE: 7 May 1997
PLACE: Adelaide
MINUTES OF ORDER
The Court orders that:
1. The appeal be allowed.
2. In lieu of the order made by Branson J it be ordered that the application dated 13 September 1995 be dismissed with costs.
3. The respondent pay the appellants' costs of the appeal.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
SOUTH AUSTRALIAN DISTRICT REGISTRY ) No SG 50 of 1996
GENERAL DIVISION )
BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL
Appellants
AND: JAGJIT SINGH
Respondent
COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ
DATE: 7 May 1997
PLACE: Adelaide
REASONS FOR JUDGMENT
BLACK CJ, von DOUSSA, SUNDBERG and MANSFIELD JJ
The proceedings
On 27 May 1993 the respondent applied for refugee status under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The application was rejected by the delegate of the Minister for Immigration and Ethnic Affairs on 24 March 1994. By virtue of s 39 of the Migration Reform Act 1992 the delegate's decision had the effect of a refusal of a protection visa. On 26 April 1994 the respondent lodged with the Refugee Review Tribunal an application for review of the decision. On 10 August 1995 the Tribunal affirmed the delegate's decision. The respondent's application to review the Tribunal's decision was heard by Branson J together with applications by Mohinder Singh and Surjit Singh. Her Honour set aside the decision on
the ground that the Tribunal had made an error of law, in that it had evaluated whether the respondent's fear of persecution was well-founded as at the date of its determination rather than at the date of his application for refugee status. The present appeal is from that decision.
Applicable law
What has been said about the relevant law in Minister for Immigration and Ethnic Affairs v Mohinder Singh (1997) 142 ALR 191 at 192 applies here.
Factual Background
The respondent is from a village in the state of Punjab, in India. After five years' schooling he became a farmer, and later a truck driver. In support of his application for refugee status, the respondent claimed that in 1985 he became an member of the All India Sikh Student Federation. The goals of the organisation included the obtaining of democratic rights and the creation of an independent Sikh state to be known as Khalistan. The respondent attended meetings of the Federation from time to time, participated in strikes and peaceful demonstrations, and used his truck to provide transport for members.
According to the respondent, in 1988, while driving his truck in the state of Haryan, he was pulled over and interrogated with respect to the assistance he was giving to the Federation, and his involvement in it. He was permitted to continue his journey, but after that he was "continually harassed by police". In about July 1989, again while driving his truck, he was arrested by the Punjab police, who alleged that he had helped in the escape of Sikh extremists, and that he harboured Sikh extremists. He was taken into police custody and held overnight. The sum of 20,000 rupees had to be paid for his release. The respondent claimed that both he and his family were, thereafter, subjected to police harassment.
Subsequently, the respondent claimed he had been beaten by the police on several occasions for providing members of the Federation with transport, and that in 1985 his name appeared on a blacklist kept by the government and the police. He said that in 1988 he went into hiding and moved his wife and children interstate. He produced a letter which purports to be from his Indian advocate, which states that the Indian Government has falsely charged him with murdering two politicians. The letter further asserts that the police have been searching for him since 10 June 1992, and that as a consequence of not appearing in court a magistrate has issued non-bailable warrants for his arrest. The letter also asserts that the respondent is wanted in respect of other criminal cases, advises that he could be "liquidated" by the police if he returns to India, and suggests that he not return. After the Tribunal hearing, the respondent's agent forwarded to the Tribunal a document purporting to be a warrant for the respondent's arrest dated 22 February 1992. In his covering letter the agent said that he had just received it from India, that he trusted it would be received and used, but that he could not "vouch for its authenticity and must rely upon the client".
The Tribunal concluded that although the respondent had become involved in the Federation in 1985, the activities he performed on its behalf "were largely of an administrative nature such as providing transportation for members". The Tribunal found that the respondent had ceased his involvement with the Federation in 1988. The Tribunal did not accept that the respondent's name appeared on a blacklist. Nor did it accept that the letter supposedly from the respondent's Indian advocate was authentic or that its contents were true. The Tribunal declined to place any weight on the warrant.
Tribunal's Decision
The Tribunal found that the respondent fears persecution upon return to India. The risk of persecution is "based, in part, on his political views" but is also "inextricably linked with his religion as a Sikh". Nevertheless, the Tribunal found that
it is clear from information from a variety of sources that there has been a dramatic improvement in the Punjab in the intervening years. From the evidence examined above, I have concluded that the Indian authorities in the Punjab are targeting top Sikh militants and those with a degree of prominence in human rights reporting. I find therefore, that there is substantially less than a real chance of the ordinary Sikh with no continuing involvement of any significance in separatist activities attracting the adverse attention of the authorities which would result in detention and mistreatment which Sikhs in the region have experienced in the past.
Relevant time
What has been said under the Relevant time and the Conclusion headings in Minister for Immigration and Ethnic Affairs v Mohinder Singh (1997) 142 ALR at 193-196 is applicable here. See now Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 382.
Arrest warrant
Branson J repeated the
observations she had made in her judgment relating to Surjit Singh about
verification by the Tribunal of official documents issued in a foreign
country. What has been said about the
applicable principles under the Arrest
warrants heading in the judgment relating to Surjit Singh applies to this
case also. Here too the respondent has
fallen short of showing that the Tribunal's failure to make inquiries through
official channels about the authenticity of the document involved any denial of
substantial justice. The Tribunal gave reasons for concluding that the
warrant was not authentic, and that was a
conclusion
open to it. It also concluded that the
letter purportedly from the advocate in India was not genuine and, as the
primary judge noted, there was evidence and material before the Tribunal to
justify its attitude to the letter and its contents. There was no evidence about the provenance of
the purported warrant other than the agent's letter forwarding it to the
Tribunal, and there is nothing to indicate that it was ever suggested to the
Tribunal by the respondent or by his agent that it should take any steps of its
own to authenticate the warrant.
Conclusion
The appeal should be allowed, and in lieu of the order made by Branson J there should be an order that the application dated 13 September 1995 be dismissed.
I certify that this and the preceding four pages are a true copy of the reasons for judgment of Chief Justice Black and Justices von Doussa, Sundberg and Mansfield
.......................................................................
Associate
7 May 1997
IN THE FEDERAL COURT)
OF AUSTRALIA )
SOUTH AUSTRALIA )
DISTRICT REGISTRY )
GENERAL DIVISION ) NO. SG51 OF 1996
ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA
B E T W E E N: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL
Appellant
and
JAGJIT SINGH
Respondent
CORAM: BLACK CJ, LEE, VON DOUSSA, SUNDBERG, MANSFIELD JJ
DATE : 7 MAY 1997
PLACE: ADELAIDE
REASONS FOR JUDGMENT
LEE J:
The relevant facts are set out in the joint reasons of the other members of the Court and it is unnecessary to repeat them.
The issue raised by the respondent on this appeal by informal notice of contention is the same issue raised and dealt with in the appeal of Surjit Singh heard concurrently which this matter, namely, whether the failure of the Tribunal to use official channels to ascertain whether a copy warrant for the arrest of the respondent by Indian authorities was a copy of an authentic document, constituted a failure by the Tribunal to observe a procedure the Migration Act 1958 ("the Act") required the Tribunal to observe.
According to the material submitted by the respondent in support of his claim for asylum and put before the Tribunal, from 1985 the respondent was an underground member of the All India Sikh Students Federation which had as its objective the creation of the separate State of Khalistan in the Punjab. The respondent claimed that he had been subjected to harassment by Punjabi police and that he had been placed on a "blacklist" kept by government and police. He had been arrested by police in 1989, the police alleging that he had harboured "escaped Sikh extremists". He was released on payment of a sum raised by fellow villagers and received by the police as a bribe. Thereafter, he had been subject to police attention and went into hiding to avoid further harassment. He claimed that many fellow members of the Federation had been arrested as Sikh extremists and killed by Punjabi police. He departed India and arrived in Australia in April 1993. In May 1993 the respondent applied "for refugee status".
In October 1993 the respondent claimed that a warrant had been issued for his arrest by Punjabi police in 1992. After the hearing of the review application by the Tribunal in May 1995 the respondent's agent forwarded to the Tribunal a copy of a warrant, dated 22 February 1992 and issued in the Punjab, which sought the arrest of the respondent. The warrant purported to be issued under an official seal and under the hand of a Judicial Magistrate. The document had been obtained by the respondent's agent, from an advocate said to have acted for the respondent in the Punjab.
In its reasons for decision the Tribunal stated that it did not "accord any weight" to the copy warrant. The reason for doing so was said to be the concerns or doubts the Tribunal had in respect of the authenticity of a letter from the Punjabi advocate submitted by the respondent in October 1993.
For the reasons expressed in the matter of Surjit Singh if the copy warrant was a copy of an authentic document, that fact would be fundamental to any consideration of the respondent's claim that he had a well-founded fear of persecution if he were returned to India. If, as appears to be asserted, the warrant had been issued for the arrest of the respondent for offences of a political nature, it followed that the respondent was a person of significance to Punjabi police, and that there may have been grounds for the proclaimed fear that he may be harmed in a "confrontation" organized by police, purportedly in effecting his arrest.
The learned primary Judge considered that the Tribunal could have had the document authenticated through official channels. No suggestion to the contrary was made to this Court by the appellant nor was it submitted that such a step would raise any difficulties. Her Honour expressed the view that if, as in this case, there was an absence of clear evidence that the document was forged, it was appropriate that the Tribunal verify the document through official channels. By that I understand her Honour to be saying that if the respondent was to be accorded substantial justice by the Tribunal in determining the application for review it was a step the Tribunal was obliged to make under s427(1)(d) of the Act.
I have set out in Surjit Singh the reasons why I have concluded that like comments by the learned primary Judge in that matter correctly identified how the failure of the Tribunal so to act gave ground for the review of the Tribunal's decision under s476(1)(a) of the Act and why the informal notice of contention should be upheld.
I would dismiss the appeal and allow her Honour's order to stand, namely, that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for determination according to law.
I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee.
Associate:
Date: 7 May 1997
Counsel for the Appellants: S Maharaj
Solicitor for the Appellants: Australian Government Solicitor
Counsel for the Respondent: G Patel
Solicitors for the Respondent: Patel & Co
Date of Hearing: 11 November 1996
Place of Hearing: Adelaide
Date of Judgment: 7 May 1997
