FEDERAL COURT OF AUSTRALIA

Migration – review of decision of the Refugee Review Tribunal – Indian Sikh from the Punjab – application revealed no basis for review – no error of law

Migration Act 1958 (Cth)

HARDIAL SINGH v minister for immigration & multicultural affairs

ng 1140 of 1997

THE HON JUSTICE MARCUS einfeld

sydney

6 October 1998

THE COURT ORDERS THAT:

1.                  The application be dismissed.

2.         There be no order as to costs.

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

REASONS FOR JUDGMENT

This application seeks review of a decision of the Refugee Review Tribunal made on 1 December 1997.  The case has many quite unsatisfactory features.  The applicant is an Indian Sikh from the Punjab whose wife and child still live there in a house he owns.  He arrived in Australia on 22 September 1994.  His original application for a protection visa/refugee status was made on 21 October 1994 but it took 2 years for the Minister’s delegate to refuse the application and a further 13 months for the matter to be dealt with by the Tribunal.  His amended application for review dated 23 May 1998 occupies some 10 pages, his written submission another 10 pages and there was filed a draft unsigned affidavit dated 25 May 1998.  Although these documents were all prepared by a registered migration agent, there was very little of any of them that provided a legal or jurisdictional basis for judicial review as now permitted to this Court by the Migration Act 1958.  They are attached to this judgment to illustrate their irrelevancy and costly time-wasting.  The case can therefore be disposed of quite shortly with an explanation which hopefully the applicant will be able to understand.

The applicant claims that he faces, and fears, persecution as defined by the Geneva Convention on Refugees because of his Sikh religion and a political opinion imputed to him as a Sikh.  He said that the police might kill him if he returns to India because he has been associated with the Sikh Youth Federation which, with other Sikh groups, has been agitating for a separate, independent Sikh nation.  He says that Government forces have killed people protesting in favour of such a state and that he has had to flee his country on several occasions, mostly to Singapore, often on different passports for which he has had to pay large bribes in order to escape being murdered.  He claims that in the circumstances he cannot access government protection.

The applicant travelled to Australia under his real name on a genuine passport.  He claims that he paid a bribe to the local police to facilitate the delivery of this passport and paid another bribe at Bombay airport to ensure that he was allowed to leave.  He belongs to a large family some of whom still live in the Punjab while others live in Bombay.  He has never been prevented from practising his religion and its beliefs.

The applicant’s history as a Sikh activist is fully set out in the Tribunal’s decision and none of it seems to be challenged now.  In any event, it is for the Tribunal to find the facts, not this Court which has only been given the power to investigate legal errors, and only a limited power to rectify them.  In short, the applicant holds no official position in any Sikh political or separatist organisation, and while he has sometimes supported militants, he has never been a militant himself.  The last time he gave shelter to fighters was in 1990, the last time he stored arms was in 1989.  He has been arrested and interrogated on a number of occasions in the last 15 years, on some of which he was tortured.

As found by the Tribunal in a refreshingly independent, thoroughly researched and clearly written decision, there have been a number of serious problems affecting Sikhs in India since 1984 when the Golden Temple at Amritsar, the Sikh’s holy city, was stormed, and thousands killed, by Government forces directed by then Prime Minister Indira Ghandi, and later that year when she was assassinated by a Sikh.  At that time many Sikh activists were arrested, several killed, others disappeared, and still others fled the country.  After that time, militant terrorism and government responses increased so that between 1986 and 1993 hundreds of people were murdered each year.  However, political moves designed to produce the opportunity for the problems to be faced and resolved peacefully and democratically meant that by 1997 Sikh militancy in the Punjab had virtually ended.

The Tribunal accepted that the situation for Sikhs in the Punjab was dangerous or difficult when the applicant was living there, and no doubt that he was no less at risk of harm than others of his co-religionists.  It did not accept his claim of arrests and torture and that his departure from India was due to fear for his life.  Unlike in some cases where rejection by the Tribunal of various claims by applicants have been based on the flimsiest of grounds, this Tribunal member gave detailed documentary and other persuasive reasons for rejecting these claims.  Even more significantly, the Tribunal based its view that the applicant would not be in danger if he was returned to India on the substantial change in the security situation in recent times, on the strength of evidence that whatever the applicant suffered, he was not personally targeted at all, still less on any Convention-related ground, and on his proven capacity to live elsewhere in India than the Punjab.

The application made an attack on the Tribunal member’s bias against him.  No particulars were given and the matter was not addressed in submissions.  In my opinion, there were no grounds for this assertion which should not have been made if it was not intended to be pressed.  The applicant also argued that relevant considerations were ignored.  Apart from the fact that this ground is not a basis for overturning decisions of the Tribunal unless substantial justice and the merits of the case were ignored, none of the particulars offered form a basis for doing so here.

The applicant said that the Tribunal failed to have regard to the Indian Government’s long history of human rights abuse.  Even if this history were accepted as correct, and no particulars were given to the Tribunal or the Court to support the general allegation, it could not found the provision of a protection visa as what is at stake is the applicant’s safety now, not matters involving other people at other times.  Moreover, the Tribunal would have been required to balance against that assumed history, the fact that India is a democratic country which holds regular elections at which governments do change and which has independent courts of integrity which strive to fulfil their role as honest arbiters between the citizen and the State.  In such circumstances, it would always be difficult for a Sikh asylum seeker to make out a well founded fear of persecution as required by the Convention at this time.

As can be seen from the attachments to this judgment, the rest of the application provided no basis for overturning the Tribunal’s decision.  Although some of it gave token attention to section 476 of the Act, the substance of the assertions were about the unreasonableness of the decision or of the processes of the Tribunal which were unsupported by evidence or even relevant assertions, let alone a legal basis for using them to review the decision.

I have been able to find no basis on which refugee status could have been granted to the applicant.

In my opinion, the Tribunal’s decision was not attended by any relevant legal or factual error and must be upheld.  The application for review must be dismissed.  As to costs, it seems to me that the applicant was a victim of his migration agent’s incorrect advice or at best excess of enthusiasm.  If he were a lawyer, I would have called upon him to show cause why he should not be ordered to pay the Minister’s costs.  However, the decision to effectively exclude lawyers from these cases and to register migration agents who are not lawyers appears to me to deprive the Court of the power to make orders of that kind.  The applicant should not become the surrogate sufferer for the activities and arguments of his agent such as would occur if he were required to pay the Minister’s costs.  There will be no order as to costs.

Associate:

Dated: