FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1705

MIGRATION - standard of proof required by Tribunal - whether standard imposed by the Tribunal was appropriate and in accordance with the Migration Act 1958 (Cth) and Convention - Tribunal had little or no regard to several documents on the basis that the material could not be “unequivocally authenticated” and were merely photocopies - Tribunal took into consideration misspellings in official documents and variations in the applicant’s name appearing in those documents, to find that the documents were not authentic or had been tampered with - whether Tribunal applied a more onerous evidentiary test in considering such material than required by law.

Migration Act 1958 (Cth) ss 36(2), 476(1)(e), 476(1)(g)

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 considered

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 considered

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

referred to

Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555 followed

Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023

followed

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 followed

SUKHBIR SINGH v MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

S 29 OF 2000

MANSFIELD J

27 NOVEMBER 2000

ADELAIDE

THE COURT ORDERS THAT:

1.         The application be dismissed.

2.         The applicant pay to the respondent costs of the application to be taxed.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 10 March 2000.  The Tribunal affirmed a decision of a delegate of the respondent given on 2 September 1997 refusing to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (“the Act”).  It is a criterion for the grant of that visa that the applicant satisfy the delegate of the respondent, and on review the Tribunal, that he is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (“the Convention”):  see s 36(2) of the Act.  For present purposes, that means that the applicant had to satisfy the delegate of the respondent, and on review the Tribunal, that he was a refugee as defined in Article 1A(2) of the Convention, namely that he was a person who:

“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

2                     The applicant ultimately sought to establish that the decision of the Tribunal should be reviewed on the ground that it 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 person who made the decision, whether or not the error appears on the record of the decision:  s 476(1)(e).  The ground of review based upon s 476(1)(g) of the Act identified in the amended application, and in the written outline of submissions, was abandoned in the course of submissions.

3                     The substance of the submission was that the Tribunal had failed properly to apply the test of whether the applicant had a well-founded fear of persecution for a Convention reason, as that expression has been explained in the decisions of the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”) and earlier in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”).

background and claims

4                     The applicant is a citizen of India.  He was born on 15 October 1970 in Lallian in the Punjab, and attended school there until 1986.  Thereafter, he worked in that area as a self-employed farmer until he departed for Australia, arriving on 29 January 1996.  He applied for a protection visa on 14 February 1996.

5                     The applicant was issued with a passport in his own name in 1988.  He renewed that passport in 1994.  In 1991, he travelled to Thailand for fifteen days.  He also travelled to Australia on that passport, having left India legally from New Delhi airport.

6                     His claim to refugee status was based upon imputed political opinion.  He told the Tribunal that he is not a political leader, and is not himself involved in politics.  However, he claimed that his family has been deeply involved in Sikh politics and that he has been imputed with that political position.

7                     The applicant claimed that his father was a member of Akali Dal for many years, and had been an active proponent of Sikh rights including protesting against human rights abuses against Sikhs.  He said his father had been arrested and tortured by the authorities many times, and had fled to the United Kingdom in 1993 where he is seeking asylum.  The applicant and other members of the family were also harassed by the police.  He first claimed that he fled to Thailand in 1991, and only returned when he believed it was safe.  That proved to be an incorrect belief.  He was again detained and tortured.  Later, however, he told the Tribunal that he went to Thailand simply as a tourist for a short time.  He claimed that his brother Armajit Singh was taken by the police in 1992, as the family was suspected of being linked with armed Sikh extremists, and was held then at least until 1996.  The applicant told the delegate that his brother Armajit Singh had been released in 1996 and had fled India, but he told the Tribunal that Armajit Singh was still in custody.  After his father left India in May 1993, the applicant claimed that he and the rest of his family continued to be victimised by the police.  He said he was arrested and tortured on a number of occasions, including following the violent death of Chief Minister Beant Singh, and following the conviction in the United States in 1994 of another member of the ‘Akali Dal Amritsar another faction of Aklai Dal Shiromani’ for terrorism, as the applicant too was a member of that group.

8                     The applicant also told the Tribunal that he was denied access to higher education, and to employment in both the public and the private sectors so that his only choice was to work as a self-employed farmer.

9                     In support of his claim, the applicant presented arrest warrants for his father, and for himself.  He also presented a letter from his brother Armajit Singh to himself dated 29 January 1999 warning him not to return to India, enclosing the purported original of the arrest warrant for the applicant, and a death certificate and air ticket in the name of Harinder Singh, the applicant’s brother-in-law.  He said that that letter was signed by Armajit Singh at the request of their mother, whilst Armajit Singh was in custody.  He claimed that Harinder Singh had been accidentally killed whilst fleeing the police on a return visit to India, and that the police were pursuing him to arrest him because of the family’s perceived support for Sikh terrorists.

10                  The Tribunal closely questioned the applicant about those claims, in particular in the light of independent country information which generally painted a different picture about the threat, since 1993, to Sikhs in the Punjab who are not themselves well known Sikh extremists, and in the light of apparent inconsistencies in the detail of his claims to the delegate of the respondent and to the Tribunal.  Those matters are described at some length in the Tribunal’s reasons.  It is not necessary at this point to repeat them.

the tribunal’s reasons

11                  The Tribunal found that the applicant does not have a well-founded fear of persecution for a Convention reason, either at the time of its decision or in the reasonably foreseeable future.

12                  He had been able to remain in his home city of Lallian until he left for Australia, and to marry in 1992 and to continue to work there.  He left India legally on a valid passport in his own name in January 1996, and earlier in 1991.  His claim to have been denied employment was made only belatedly.  He was not himself involved in politics.  He gave inconsistent evidence about the treatment of, and welfare of, his family and about where he lived in the Punjab, and about his political activities as a member of Akali Dal Amritsar.  He gave evidence, which the Tribunal regarded as vague, about the occasions of his arrests, interrogation and torture.  It therefore found that he had

“attempted progressively to exaggerate, embellish and vary his evidence over time to meet the circumstances as they have arisen.”

It found that his claims lack credibility, and that he was not a credible witness.

13                  It also concluded that, even if it accepted that he had been arrested and tortured as he had claimed,

“Given the extent of both the terrorist activities and the extreme measures taken by the security forces at that time to counter these activities, as described in the independent country information below, … [these incidents] would illustrate no more than that the applicant was of little or no interest to the authorities, and that he was not seen by the authorities as a threat …”

14                  It noted that the independent country information revealed that Akali Dal is a legal political party which has significant electoral support.  In the 1996 Punjab elections, it formed government in coalition with the BJP.  Any imputed political opinion in relation to the Akali Dal would not expose the applicant to the risk of persecution in any event.  Moreover, that information also showed that even persons who provide shelter or food to persons suspected of Sikh activism are not themselves now regarded by the authorities as high profile activists or of interest to the authorities.

15                  The Tribunal found that the arrest warrant allegedly against the applicant, and dated 2 January 1997, was not genuine.  It did so because that document (including the ‘original’ referred to above, which was also a photocopy) was in the name ‘Sukhbir Singh Gill’, it did not identify the name of the executing officer, it misspelt his place of residence as ‘Lalian’, the word ‘Gill’ appeared to the Tribunal to have been written by a different hand or in a different style to the name Sukhbir Singh, and because of other misspelling and smudging.  There were similar, but not identical, reasons why the Tribunal found that the arrest warrant dated 10 February 1994 issued against the applicant’s father was also rejected as not being genuine.

16                  The Tribunal also said that it could place no weight on the arrest warrants, nor on the other documents enclosed with the letter from Armajit Singh dated 29 January 1999, “for the additional reason that they are photocopied, and cannot be unequivocally authenticated”.  It added that it did not accept that “because a copy is notarised, the original is a genuine document”.  It also referred to independent country information that documentation in India is of little intrinsic value as document fraud is rampant.

17                  The Tribunal also gave no weight to the letter from Armajit Singh dated 29 January 1999 or its attachments.  It found that there was nothing to suggest that Harinder Singh’s death was related to any alleged persecution of the applicant.  It noted that the information was not first hand, that the death certificate is a poor copy with the name of the deceased and other entries smudged, and that it appears to be unsigned.  It did not accept that it was a genuine document.  It also gave no weight to that letter because of inconsistencies in the applicant’s evidence concerning the whereabouts of his brother Armajit Singh, and apparently because the letters from his mother confirming the police are looking for him (to which he referred) were not produced.  It gave the additional reason that it had found that the arrest warrant was not genuine.

18                  The Tribunal also did not accept that the applicant was known by the name ‘Gill’, the name that appeared on the non-genuine arrest warrant, as the applicant had not previously given the name Gill.  It found that his explanation that that name is used only in police matters was inconsistent with its use on the letter from Armajit Singh dated 29 January 1999, as that letter also was addressed to Sukhbir Singh Gill.

19                  More generally, the Tribunal clearly accepted independent evidence about India that passports are issued only after stringent procedures, and no one for whom an arrest warrant was in force could leave India normally (as the applicant had done on two occasions, including when he left India for Australia in January 1996 about a year before the arrest warrant against him was apparently issued).  It was not satisfied that the applicant circumvented those checks only with the assistance of a friend.  It found that in 1991 and 1996 he was not of continuing interest to the authorities.

20                  Finally, the Tribunal found that there is no obstacle to relocation elsewhere within India for a person with the applicant’s profile, or rather his lack of any actual or imputed political profile.  It gave reasons for that view.  It applied the reasoning in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”) to reach that conclusion.  If the applicant succeeds on his principal submission, I do not think that this conclusion provides an independent finding capable of sustaining the Tribunal’s decision.  That is because this conclusion is premised upon a finding that the applicant has no actual or imputed political profile.  His principal attack is upon that finding.  If he is successful in that attack, in my view, the necessary consequence would be that this conclusion also would be infected with the same error alleged by the applicant.

consideration of contention

21                  The Tribunal referred to the terms of the Convention, and to the decisions in Guo and Chan.  It said:

“Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear.  This adds an objective requirement to the requirement that an applicant must in fact hold such a fear.  A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason.  A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation.  A “real chance” is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”

22                  The applicant does not contend that that passage in the Tribunal’s reasons demonstrates error.  Rather, he contends that the Tribunal has in fact failed to apply those precepts in its consideration of the material before it, and has applied a balance of probabilities test or some other more onerous test than that imposed by the Act and the Convention:  cp.  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259.  In Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 573 noted in relation to a similar contention that:

“However there is no basis for concluding that the Tribunal decided the “real chance” issue on the balance of probabilities.  Nowhere in its reasons did the Tribunal use the term “balance of probabilities” in deciding the “real chance” issue.  Nor did it make any findings or statements that imply or infer that it was deciding the issue of well-founded fear of persecution for a Convention reason on the balance of probabilities.”

23                  Their Honours at 574 pointed out that the Tribunal, in determining whether there was a real chance that Mr Guo would be persecuted for a Convention reason, had to form an opinion as to what was likely to occur if Mr Guo were returned to his country of original.  At 575, their Honours added:

“Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.  In the present case, for example, the Tribunal correctly relied on what it found had happened to Mr Guo and others to make a finding that he was not “differentially at risk for a Convention reason.”  Without making findings about the policies of the Chinese authorities and the past relationship of Mr Guo with those authorities, the Tribunal would have had no rational basis from which it could assess whether there was a real chance that he might be persecuted for a Convention reason if he were returned to the PRC.”

24                  The Tribunal must, of course, have regard to the degree of probability that events alleged have or have not occurred, or have or have not occurred for particular reasons, in the past.  That is relevant in determining the chance that the event or events which the applicant fears will occur if the applicant is returned to his country of origin:  Guo, at 577.

25                  There is one feature of the Tribunal’s reasons which, in my view, does suggest that it was imposing an evidentiary onus upon the applicant beyond that contemplated by the Act.

26                  In its reasons, when dealing with the genuineness of the arrest warrants, the Tribunal said:

“The Tribunal notes that the alleged warrants, letter signed by Amarjit Singh, death certificate and airline receipt appear to be photocopies.  In relation to photocopies, the Tribunal observes that in such documents it is a simple matter to make substitutions and alterations.  In addition to being unable to place any weight on the warrants because they are internally inconsistent and flawed, the Tribunal is unable to place any weight on the above documents for the additional reason that they are photocopied, and cannot be unequivically authenticated.  The Full Federal Court (Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ) in MIEA v Singh (1997) 144 ALR 284 at 291 observed that there is no general rule to the effect that the Tribunal is under a duty to verify the authenticity of such documents.  In addition the Tribunal does not accept that because a copy is notarised, the original is a genuine document.”

27                  In my view, it is erroneous on the part of the Tribunal to adopt the view that no weight should be given to photocopied documents simply because they are photocopied unless they are “unequivocally authenticated”.  It is implicit in that proposition that a visa applicant must unequivocally authenticate document evidence presented in the form of a photocopy before that document should be given any weight by the Tribunal.

28                  In the case of an arrest warrant which has not been executed, one may rhetorically ask how the original (or a notarised copy) of such a document is to be obtained by a visa applicant outside the country of citizenship, and more importantly how the visa applicant can unequivocally authenticate such a document.  The difficulties of proof of refugehood were discussed in Randhawa (per Beaumont J at 451-452, including reference to Grahl-Madsen, The Status of Refugees in International Law at 145-146 and to the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the Office of the United Nations High Commissioner for Refugees, pars 195-205 at 47-49).

29                  The Tribunal’s approach in that passage of its reasons, in my judgment, does demonstrate that it was imposing a burden of proof upon the applicant which was in a practical sense impossible to be met.  In that respect, therefore, I consider that its inquiry into past events designed to illuminate the answer to the question whether the applicant has a well-founded fear of persecution for a Convention reason was one predicted upon imposing an onus of proof upon the applicant which is incorrect in law.

30                  However, I think it is clear that that approach to photocopies did not play a part in the Tribunal deciding that neither of the warrants was genuine, or that the contents of the letter were not such that weight should be given to them.  It gave discreet reasons for those conclusions, which it later described (in relation to the warrants) in a general way as being because they were “internally inconsistent and flawed”.  The passage in its reasons concerning the weight to be given to photocopies was at a later point, and after the Tribunal had already determined that it would give no weight to the contents of those documents, and had already given reasons for that decision.  The status of the documents as photocopies was described as an additional reason, but it was not one upon which the decision as to the weight to be given to those documents depended.  Accordingly, I do not consider that that error on the part of the Tribunal results in reviewable error.

31                  Of course, I am not to be taken as directing that weight should be given to such documents, even though they may be presented as photocopies.  That is a matter for the delegate of the respondent, and for the Tribunal, to decide in each case and in the particular circumstances then obtaining.  Regard may be had to the independent country information about the extent of document fraud in official documents apparently emanating from a particular country.  But, in my view, the Tribunal must treat each individual case on its merits.  And it would be wrong to impose upon a visa applicant the burden of unequivocally authenticating such documents before weight was ascribed to them.

32                  It was also submitted that the Tribunal also demonstrated an inappropriate onus of proof upon the applicant by adopting a hypercritical approach to his evidence and to the documentary material he presented, although no submission was put that would invite consideration of the ground of review available under s 476(1)(f).

33                  In addition, in Ismail v Minister for Immigration and Multicultural Affairs [1999] FCA 1555 Lee J, in a passage cited with approval by the Full Court in Minister for Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023, said at [40] that care should be taken in impugning the credibility of a visa applicant because of vagueness or inconsistencies in recounting peripheral details.  Regard should be had to the circumstances in which a visa applicant may have left the country of origin or the experiences there suffered, and to cultural and personal reasons for responding to the delegate of the respondent or to the Tribunal in an overstated way, or sometimes in a cautious way.

34                  There are doubtless many occasions when overstatement of detail may result from the genuine fear of persecution and the desire to persuade the decision-maker of the foundation of that fear.  There are also doubtless many occasions when caution about disclosure of information may result in the initial claims being laconically rather than fully expressed.  It may be unfair to attribute to a visa applicant the capacity to include in the initial claim, or indeed in subsequent documents, the capacity to disclose fully and frankly, but without any hyperbole, the reasons of the claim to refugee status.

35                  One matter of apparent significance to the Tribunal was the misspelling of Lallian as ‘Lalian’ in the arrest warrant against the applicant.  It might be said that, taken by itself, such a feature could be equally consistent with administrative errors on a genuine document as with an error made by a forger.  Similarly, the reason why a forger would choose to add to the applicant’s name the word “Gill” to create an obstacle to the document’s acceptance by the Tribunal is not obvious.  It is also not obvious why smudging indicates forgery rather than smudging on a genuine document.  The Tribunal said that such features suggest “tampering with the base document”.  It does not indicate what it considered was the base document, or its status, or its content, before the tampering.  Other illustrations were given.

36                  Those matters do not, in my judgment, demonstrate that the Tribunal was imposing an inappropriate burden of proof upon the applicant.  The process of reasoning of the Tribunal leading to a finding of fact is not reviewable under s 476(1)(e) simply because the Court may disagree with it, or may regard the weight given to a particular factor in the process of reasoning as excessive or insufficient, or even if it considers that it was illogical or unreasonable to attribute weight to that factor at all:  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 per McHugh J at 587 [40] (“Eshetu”).  To review the Tribunal’s decision for such reasons would be to fall into the error of reviewing its decision on the merits:  Eshetu, per McHugh J at 589 [56].  In my view, the illustrations or indications provided by the applicant of steps in the Tribunal’s process of reasoning which were said to demonstrate the imposition of an inappropriate burden of proof were but steps in the process of reasoning which other minds might well disagree with as petty or illogical.  They do not demonstrate that the Tribunal failed properly to apply the test of whether the applicant has a well-founded fear of persecution for a Convention reason.

37                  Ultimately, it was for the Tribunal to determine what weight it gave to the applicant’s claims.  It decided not to believe him.  It gave reasons for that decision, mainly by reference to inconsistencies in his evidence on matters it regarded as significant, and by reason of objective matters, including the obtaining and renewal of his passport and his ability to leave India in 1991 and in 1996 lawfully and in the normal manner, and his ability to have lived and worked in Lallian for many years to 1996 without apparently needing to move to seek haven from persecution.  Its findings about his credibility were not founded upon its views about the genuineness of the arrest warrants.  The applicant gave no evidence of any circumstance which might have given rise to a warrant being issued for his arrest only after he had arrived in Australia.  The Tribunal considered that his ability to leave India was consistent with the authorities having no ongoing interest in him at those times, and that it reflected his own claim that he was not a political leader or involved in politics.  It also was consistent with the independent country information about the position of Sikhs in the Punjab in the more recent years.  It is not shown to have been in error in concluding that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason.

38                  For those reasons, in my judgment, the ground of review contended for has not been made out.  Accordingly, the application is dismissed.  I order that the applicant pay to the respondent costs of the application to be taxed.

Associate:

Dated:              27 November 2000