FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1322

IMMIGRATION - Review proceedings - whether Refugee Review Tribunal erred in refusing to recognise applicant as a refugee - adequacy of reasons - status of alleged factual error in review proceedings

Migration Act 1958 s 430(1)

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 Cited, Refd to

Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 Refd to

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 Refd to

Rich Rivers Radio Pty Limited v Australian Broadcasting Tribunal & Ors (1989) 22 FCR 437 Cited

Ansett Transport Industries (Operations) Pty Ltd & Anor v Wraith & Ors (1983) 48 ALR 500 Cited

Commonwealth of Australia v Pharmacy Guild of Australia & Anor (1989) 91 ALR 65 Cited Refd to

JATINDER PAL SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 463 of 1999

KIEFEL J

23 SEPTEMBER 1999

SYDNEY

ON REVIEW FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs of the application. 

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

ON REVIEW FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

REASONS FOR JUDGMENT

1                     The applicant is an Indian national.  He seeks review of the decision of the Refugee Review Tribunal of 19 April 1999 affirming the decision of the Minister’s delegate refusing the grant of a protection visa.

2                     The applicant’s claim to refugee status, as defined in Article 1A(2) of the 1951 Convention relating to the Status of Refugees (amended by the 1967 Protocol), was based upon a perceived threat of political persecution if he were forced to return to the Indian province of Punjab.  The applicant is a Sikh, whose religious and political activities are alleged to be opposed by both the police and Sikh militants.  Opposition to the Indian government, through participation in the activities of the youth organisation AISSF (All India Sikh Student Federation), is said to have provoked surveillance and harassment by the Indian police.  His association with moderate Sikh political and religious factions was also alleged to have attracted the attention of fundamentalist or militant elements within the Sikh community.

The Applicant’s claims

3                     The Tribunal noted the following facts and incidents as those relied upon by the applicant:

(a)        While studying in Amritsar the applicant joined the AISSF in 1989 which he said was fighting against the government for peace.  He worked, underground, for the organisation for two years;

(b)        In 1991 the police discovered the applicant was a member of the AISSF and his name was placed on their “hit list” and the family’s permission to defend itself by use of weapons, which had been granted by the police following an attack by terrorists in 1987 (this was later changed by the applicant to 1989) was revoked.  The police asked his father to produce him for interrogation, but he refused.  His father was aware that the police had killed young Sikhs.  His name was placed on “the surveillance list”.

(c)        Sikh militants have always held a grudge against his family.  His family are wealthy but his father disapproves of violence and would not accede to the militant’s demands for money to support the Khalistan movement.  His parents are prominent members of the Akali Dal Mann, a human rights wing and his father has a close relationship with its President.  He advocated a separate Sikh state and this was not tolerated by the authorities.

(d)        Threats of killing his family continued after the incident involving the terrorists.  The terrorists believed them to be informers.  They lived in constant fear for their lives.  He went into hiding “under the guidance” of his father.

(e)        The police became more agitated about his father’s involvement in human rights.

(f)         In 1993 the police took and kept his father in illegal detention for two days and he was tortured.

(g)        His father decided, because of the threat to the applicant’s life, to send him out of the country temporarily.  He was refused a passport and one was only obtained after his father paid a bribe.  After some time he obtained a student visa for Australia.  He thought the situation in India would improve and did not seek refugee status.

(h)        In December 1996 he travelled back to India following the death of his grandmother.  On a visit to relatives he was attacked by militants.  His brother was shot, but he escaped injury.  When his father reported the incident the applicant was classified a “proclaimed offender”.  The police repeated their demand that he be produced.  This was taken by his family as confirming the currency of the threat from police towards him.

(i)         He hid in a state bordering the Punjab, but was attacked by militants again and they stoned his house.  He was terrified. 

(j)         He concluded that his life was at risk in India, returned to Australia and applied for refugee status.

(k)        The applicant said that his family continues to be abused, tortured and humiliated by the police.  He described his parents as political activists. 

4                     The applicant produced documents and photographs.  They included a letter confirming his life membership of the International Sikh Youth Federation in Australia.  He had photographs of a protest of which he was a participant in 1997, and he said he had taken part in other activities of the ISYF and attended its meetings.  The demonstration referred to was the only one he had attended to date. 

5                     The applicant produced a letter from his lawyer dated March 1999, which stated that the applicant was a “proclaimed offender” and that there were “non-bailable warrants” issued against him for offences which the applicant said had involved the giving of anti-national speeches.

6                     The applicant was given an opportunity to and did respond to information held by the Tribunal bearing upon certain of the matters raised by him.  Nothing turns upon that process.

The Tribunal’s Reasoning

7                     The grounds for review necessitate a summary of the matters appearing under the Tribunal’s heading “Findings and Reasons”:

·                   The Tribunal proceeded upon the basis that the applicant believed he was suspected to be a police informer by the militants, with respect to the incident in 1987.

·                   He was not, however, subjected to any harm from them up to the time that he left India in late 1995.

·                   Any fear he may have had on that account was therefore not well founded.

·                   The independent evidence indicated that Sikh militancy has declined markedly in recent times.

·                   The applicant’s claim to have been attacked by militants when he returned to India is then not plausible.

·                   Further, any fears of persecution by the Sikh militants is not well founded by reference to this evidence and the length of time since the events of 1987 which gave rise to their hostile interest in the applicant.

·                   The Tribunal also accepted that the applicant was involved with the AISSF and his father’s association with the Akali Dal Mann party.

·                   However, he had never been detained by the authorities, was able to obtain a passport in his own name and depart the country twice.

·                   The independent evidence indicates that immigration controls at India airports were strict as at 1992.  The Tribunal had no reason to believe checks for those wanted by the authorities are not still made and, given the increase in use of computers in India, they may be more thorough than that now. 

·                   Taking these factors into account the Tribunal rejected the assertion that it was only through bribery that he was twice able to clear the immigration authorities.

·                   Given clearance by Immigration, the Tribunal also rejected the lawyer’s claims of the existence of warrants for the applicant’s arrest.

·                   The Tribunal also noted that there was little in the applicant’s background to warrant the authorities pursuit of him.

·                   Overall, the Tribunal preferred the assessment of the independent evidence of the present situation in the Punjab:  that militancy has virtually disappeared and that there had been a significant improvement in adherence to human rights standards.

·                   The Tribunal noted the experts’ view was that only high profile militants and human rights activists remained at risk of detention by the authorities.

·                   The applicant had only a minor role in the AISSF and has been out of the country since 1995, except for two months.

·                   The applicant’s father’s association with the President of the ADM has not resulted in his present detention, although he may be the subject of police enquiry from time to time.

·                   The applicant does not play a prominent role in Sikh organisations in Australia and the Tribunal rejected as “utterly implausible” his assertion that his family were visited by police a few days after he took part in the demonstration in Canberra.

·                   The Tribunal concluded that he does not fit the profile of a person sought by the Indian authorities for Sikh separatists beliefs.

·                   Any fear of persecution held by the applicant is not well founded.

·                   The Tribunal was not satisfied that there was a real chance the applicant might face persecution on account of his political opinions.

Grounds for Review

8                     The applicant contended that the provisions of s 430(1) had not been complied with.  The subsection provides:

“430    Refugee Review Tribunal to record its decisions etc

(1)       Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)       sets out the decision of the Tribunal on the review;  and

(b)       sets out the reasons for the decision;  and

(c)        sets out the findings on any material questions of fact; and

(d)       refers to the evidence or any other material on which the findings of fact were based.”

(Reliance is placed upon the paragraphs emphasised).  Failure to comply with the requirements of sub 430(1) may amount to error of law justifying the setting aside of the decision:  Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, 406, 414.  The requirement of reasons does not however require them to be lengthy and to deal with every aspect of the evidence.  It is enough that the reasons and findings deal with the substantial issues on which the case turns:  Muralidharan 414, referring to Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465, 481, 483.  See also Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, 27.

9                     The rationale underlying the giving of reasons is to inform the parties, and the public, of the process by which the outcome was arrived at and to enable the parties to thereby discern whether a legal error has been committed:  Rich Rivers Radio Pty Limited v Australian Broadcasting Tribunal & Ors (1989) 22 FCR 437, 444;  Ansett Transport Industries (Operations) Pty Ltd & Anor v Wraith & Ors (1983) 48 ALR 500, 507;  Commonwealth of Australia v Pharmacy Guild of Australia & Anor (1989) 91 ALR 65, 88, referred to in Muralidharan 414-5.  The applicant places emphasis on that passage from Sheppard J’s judgment in Commonwealth of Australia v Pharmacy Guild of Australia & Anor and in particular the following:

“…The statement of bare conclusions without the statement of reasons will always expose the tribunal to the suggestion that it has not given the matter close enough attention or that it has allowed extraneous matters to cloud its consideration…”.

10                  It seems to me that the process of the Tribunal’s reasoning is sufficiently disclosed.  It makes apparent what factors were taken into account and rejected, and what conclusions, intermediate and ultimate, were drawn from them.

11                  The applicant submitted that the Tribunal:

“failed to set out its findings on material questions of fact, or refer to the evidence or any other material on which its findings of fact were based, in relation to the following claims:

(i)         that the applicant was not subjected to any harm from the Sikh militants until he departed India in late 1995;

(ii)        that because of his father’s close involvement in the Sikh struggle and because of his long association with AISSF the applicant was considered a high profile person;

(iii)       that the two statutory declarations given by the lawyers in India about warrants being issued for the arrest of the applicant corroborated his claim to be of interest to the authorities;

(iv)       that the applicant was fired upon by Sikh Militants while he was in India in December 1996;

(v)        that two days after the Canberra demonstration the Punjab Police visited the applicant’s home in Punjab and took his father for interrogation and that this was corroborated by the letter from the Panchayat to this effect;  and

(vi)       that in India there is endemic corruption in the airports that allows people to travel overseas undetected by paying a bribe.”

12                  Of these matters (i) relates to a finding made by the Tribunal;  the others are matters raised by the applicant in support of his case but which were not referred to in that part of the determination entitled “Reasons and Findings etc”.

13                  With respect to the finding that the applicant was not subjected to any harm prior to his departure in 1995, the applicant’s solicitor pointed to four pieces of evidence.  He submitted, in effect, that findings were required with respect to them before the conclusion referred to above could be reached.  That evidence was:

·                     That in 1987 a group of terrorists had been paid to “attack the applicant at home but he escaped”.

·                     That he had a copy of the First Information Report provided by his father to the police with respect to the 1987 incident.

·                     That the threats by the militants of killing his family continued from 1987.

·                     That he went into hiding when the police would not assist.

14                  The complaint made by the applicant is not one to which ss 430(1)(c) or (d) are referrable.  The material finding concerning past infliction of harm is made;  and the evidence upon which it is based is compendiously set out in that part of the determination entitled “Claims and Evidence”.  It includes the evidence to which the applicant now refers.

15                  The applicant’s contention is really that the Tribunal failed to find that he had been exposed to harm, which is to say that it failed to take into account some evidence and came to a wrong conclusion.  That approach involves a review of the facts, one not permitted on review under the Migration Act 1958.  In any event, it seems to me to proceed from a misunderstanding of the finding.  The Tribunal did not find that no threat had ever been made, as the applicant appears to believe.  Its finding, that material to an ultimate finding as to whether there could be a well-founded fear of persecution, was that since that one occasion and for a period of eight years he had not been subjected to harm.  The evidence that his family continued to receive threats was not directly relevant to this finding, although it would appear they had not in fact ever been harmed.  Other findings made by the Tribunal:  as to his credit;  as to the alleged attack upon him and his brother;  as to the reduction in militant activity since that time;  and as to the extent of interest in Sikhs other than high profile activists rendered any further dealing with this evidence otiose.

16                  The balance of the matters listed may be dealt with shortly.  No failure to comply with s 430(1)(c) or (d) has been disclosed.

17                  With respect to (ii), the matter of substance with which the Tribunal was concerned was whether the applicant had a sufficiently high profile, such as to be at risk of detention by the authorities.  Findings were given on that point.  The question of the father’s standing and association with a high profile human rights activist was specifically referred to:

“…The Tribunal accepts that his father would seem to have a close association with Simranjit Singh Mann but notes that his father is not in detention although he may from time to time, according to the applicant’s evidence, be the subject of occasional police inquiries.”

18                  The claim referred to in (iii) above, as to the existence of warrants for the applicant’s arrest was referred to and rejected:

“In the light of the Tribunal’s findings that were he being sought by the authorities he would have been detained by the Indian authorities when he twice departed India, the Tribunal also finds that the assertions by the applicant’s lawyer that there are in existence warrants for the applicant’s arrest not to be believable.”

19                  The Tribunal also rejected the assertion referred to in (v) as “utterly implausible” and provided the bases for that finding.

20                  The Tribunal referred, at an earlier point, to the claim that the applicant had been able to clear immigration on the two occasions he left India only because bribes had been paid.  It impliedly rejected it by its findings that immigration controls are strict with respect to checking and apprehending anyone wanted by the authorities.  With respect to this topic, the applicant’s solicitor then sought to place reliance upon a document which is said to be a transcript of the hearing by the Refugee Review Tribunal.  It was not verified and is not acceptable on that account alone.  In any event it appears to me wholly irrelevant on this application to refer to remarks made by the Tribunal member on the topic of corruption, and in a different context. 

21                  There remain two further grounds.  They relate to the claims relating to the applicant being attacked when he returned to India and the finding referred to in (i) above, that he was not subjected to harm.  In the case of the latter, it was submitted that there was no evidence to permit this finding.  Not only was such an inference available, there was no evidence to contradict it.  The other contention is to the effect that the Tribunal failed to consider the question of the attack upon him when he returned to India or that it did not do so “more thoroughly”.  The first contention is incorrect.  The Tribunal considered the assertion and rejected it as implausible.  The second contention was not further expanded upon.  No ground for review is disclosed.

22                  The application will be dismissed with costs.

Associate:

Dated:              23 September 1999