FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1961

BALBIR SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 451 OF 2000

NORTH J

11 DECEMBER 2000

MELBOURNE

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is to pay the respondent’s costs of and incidental to the application.

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

REASONS FOR JUDGMENT

introduction

1                     This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 18 May 2000.  In that decision, the Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse the applicant, Balbir Singh, a protection visa. 

background and claims

2                     The applicant is a citizen of India of Sikh ethnicity, who arrived in Australia on 30 July 1994.  He was travelling on an Indian passport issued on 5 May 1989, containing an Australian visitor visa issued in New Delhi on 21 July 1994. 

3                     The application for a protection visa by the applicant has a long history.  The applicant first applied for the visa on 21 October 1994, and that application was rejected by a delegate of the respondent on 31 October 1995.  On 22 August 1996, the Tribunal affirmed the primary decision.  This was the first decision of the Tribunal in relation to the applicant.  The applicant sought judicial review of this decision and it was set aside by consent on 28 July 1997. 

4                     The Tribunal then held a second hearing and on 12 October 1998, again affirmed the delegate’s decision.  The applicant sought judicial review of the second Tribunal decision.  On 25 October 1999 the second decision was also set aside by consent.

5                     The hearing which led to the third decision of the Tribunal, being the decision currently under review, was held on 7 March 1999.  This lengthy history explains why the present decision contains a long recitation of the claims and evidence before it.  The applicant's claims were set out in written submissions to the Department of Immigration and Multicultural Affairs (the Department), and given orally at an interview with an officer of the Department.  The applicant also gave oral evidence at the first Tribunal hearing on 11 June 1996, and at the second Tribunal hearing on 29 April 1998.  Further written submissions and oral evidence were given to the Tribunal at the third hearing on 7 March 1999.

6                     The grounds of review relied upon by the applicant are narrowly drawn.  It is not necessary for me to set out the claims and the evidence upon which they were based, except to give sufficient background to understand the limited grounds of review.  For that purpose, I intend to summarise very briefly the evidence which was before the third Tribunal hearing.

7                     In the section of the decision under review entitled “Claims and Evidence”, the Tribunal outlined the claims of the applicant in the following way:  The applicant joined the Khalistan Liberation Force (KLF) in 1986.  He worked as an auto electrician and said that members of the KLF came to his workplace to have their cars fixed, and they there asked him to become a member.  He said that by reason of his association with the KLF, he was kept under surveillance by plain-clothes policemen between 1986 and 1988.  During this period, he was not taken into custody or questioned, until the event concerning the taking of his scooter.

8                     On 29 June 1988 the applicant was on his way home from work when he was approached by two KLF members.  They borrowed his scooter and told him to lodge a report with the police that it had been stolen. The applicant said that the KLF members took his scooter for party purposes to distribute papers "or something".  The Tribunal asked why the applicant needed to report the scooter as stolen.  He answered that the KLF members told him to do this so that if something happened, he would not be liable.

9                     When the applicant went to the police to report the theft, they interrogated him and accused him of having known the people who took the scooter, and of having given it to them willingly.

10                    The applicant was then released.  Two or three days later, the police recovered the scooter.  The applicant said that the police told him that they were going to kill someone in a false encounter and use the scooter in that encounter, and then it would be returned. 

11                  The police then killed a man, Ajarib Singh Barwa, and said that they recovered the scooter at the incident. 

12                  The applicant said that the police warned him not to tell anyone about their involvement in the killing, or he would be killed himself.  The police returned the scooter on the understanding that the applicant would produce it in court if he was required to do so. 

13                  The applicant subsequently received a summons to attend court on 16 March 1994.  The summons indicated that the scooter had been recovered and that two persons had been accused of its theft.  He was required as a witness to identify the two people.  He said that the hearing was adjourned until May 1994 because the police officer who prepared the case did not appear. 

14                  On 19 May 1994, when the matter returned to court, the applicant was asked if he recognised the accused.  He said he did not.  The applicant claimed that members of the KLF had warned him that if he identified the accused, he would be killed.  The applicant said the police had also insisted that he identify the accused.  He claimed therefore that he was under threat from both sides. 

15                  He said that the police officers responsible for the case again failed to appear in court on 19 May, and consequently the matter was adjourned once more, this time until 27 July 1994.

16                  On 27 July 1994 the applicant attended court and was again asked to identify the accused.  He did not do so and the police were dissatisfied with him because he had spoiled their case and their promotions would be affected.  As the police did not attend on either 19 May 1994 or 27 July 1994, the Tribunal asked how he knew that the police wanted to arrest him.  He responded that KLF members who accompanied him to court had told him that the police wanted to arrest him.  What happened thereafter was a matter addressed in one of the arguments on review.  Consequently, I set out that passage of the Tribunal’s reasons in full: 

“The applicant went to Delhi straight from court and left India on 29 July 1994.  The applicant had held a passport for some time and his visa to visit Australia was issued on 21 July 1994.  The applicant was asked why he did not leave as soon as his visa was issued.  He replied that he had to go to court to give evidence or else a warrant would be issued for his arrest and he would be arrested at the airport when he tried to leave.  The applicant was asked why he did not leave before 27 July as then they would not have known that he had not turned up and he could leave before the warrants were issued.  He replied that he was not immigration cleared until 27 July.  That it took some time to travel between Delhi and Jalanhar[sic], where his passport was issued and that he had to be immigration cleared in the town where his passport was issued.  It was put to the applicant he could have got immigration cleared on 22 July.  He responded that he gave the passport to the agents and they said that he would get it back on 27 July.  The applicant renewed his passport in Australia without any difficulties.”

17                  The applicant also claimed that there were warrants issued for his arrest.  This was supported, he said, by the fact that after he came to Australia, his wife who had remained in India was beaten up by the police.

18                  In relation to the period between 1988, when the scooter was returned, and 1994, when the court case was heard, the applicant said that he had not been beaten by the police but that they had kept an eye on him.  He was never taken in for questioning.  He was only beaten once, when he first went to report the loss of his scooter.  The Tribunal put to the applicant that the country information indicated that the situation in the Punjab had returned to normal.  The applicant responded by saying that the police were still looking for him, that they were asking about him and that he was at risk from them. 

19                  Similarly, in relation to the proposition that he could relocate to another area of India, the applicant said that wherever he went, he would have problems with the police.  It was put to him that the country information showed that Punjab police would not pursue someone outside the Punjab unless they were militants, perceived militants or had a history of arrest and detention.  The applicant responded that he was in this last category because his wife had been beaten and because the police had warrants for his arrest.  The applicant's wife gave evidence about beatings by the police which she said she had experienced after the applicant left India. 

THE tribunal’s decision

20                  The Tribunal’s reasoning appears in the section titled “Findings and Reasons”.  This section commences as follows:

“The Tribunal had considerable difficulty accepting much of the applicant's evidence.  The applicant was often very evasive in answering questions particularly when inconsistencies were put to him.  To all Tribunals he often gave contradictory evidence.”

The Tribunal then found that the applicant's scooter had been stolen at gunpoint but did not accept that the scooter had been stolen by members of the KLF.  The Tribunal gave reasons for this conclusion.  It drew attention to the inconsistencies in the applicant's evidence about his treatment at the police station at the time when he reported the loss and when he reclaimed his scooter.  The Tribunal said:

“Given the inconsistencies in his evidence the Tribunal does not accept that the applicant was beaten and detained by the police as claimed.”

21                  Then the Tribunal considered the question of whether the applicant had a close connection with, or was a member of, the KLF.  Again, the Tribunal discerned contradictions between the evidence given by the applicant before the current Tribunal and evidence given to other Tribunals concerning his links with the KLF.  Upon full consideration of the facts, the Tribunal determined that no such link existed.  The Tribunal’s conclusion is expressed as follows:

“The Tribunal finds that the applicant has fabricated the account of his involvement in the KLF.  The Tribunal, based on the above findings and the applicant's evasive answers to questions in evidence, does not accept that the applicant was a member or organiser for the KLF.  It does not accept that he participated in the activities as described or that the KLF visited his home as claimed.  The Tribunal notes that he had never made the claim that he was of interest to the authorities and questioned between 1986 and 1988 until his evidence before the current Tribunal.”

22                  The Tribunal then turned to the question of the interest which the police might have in him.  The Tribunal said:

“The applicant has claimed that the police constantly came to his home from 1988 until 1994.  In his initial statement he stated that the police assaulted him during this period but in evidence before the current Tribunal, he stated he was not assaulted; they just kept an eye on him.  In the other Tribunal hearings he stated he was closely monitored by the police.  The applicant's wife stated the police used to come often and beat him at this time.  The Tribunal has already found he was not involved in the KLF; the applicant at this stage is a witness who the police want to give evidence in a court case.  They do not yet know he will be an uncooperative witness.  There is no reason for the police to monitor him and also taking into account the inconsistencies in the applicant's evidence the Tribunal does not accept that he was being monitored by the police at this time nor that he was assaulted or beaten by them.”

23                  The Tribunal then examined the evidence concerning what happened at the various court appearances and observed a number of inconsistencies in the different versions given by the applicant.  It expressed its conclusion as follows:

“Given the large number of inconsistencies the Tribunal is unable to be satisfied of any version of events but is prepared to accept that the applicant's scooter was stolen.  The applicant reported this matter to the police.  As already indicated the Tribunal does not accept that the applicant was beaten by the police when he reported the theft of the scooter.  The Tribunal accepts that when he was required to give evidence in court he failed to give evidence consistent with his prior statement to the police and that the police were not pleased with him.  The Tribunal is prepared to accept that the applicant may have failed to give evidence in accordance with his statement because he was afraid of repercussions from the accused.  The Tribunal finds however that the applicant has fabricated a story around this event involving the KLF.  As the Tribunal has already found that the KLF were not in any way involved in this incident the applicant is therefore not at risk from the KLF.”

24                  In a passage which has some importance for the arguments on review, the Tribunal continued:

“The Tribunal accepts that the police were displeased with the applicant's failure to give evidence however it does not accept that the applicant was at any ongoing risk from the police.  After the court case the applicant claims he went into hiding (at one point in his evidence this was 16 March and at other times 19 May).  This involved staying at two relatives who did not live far from his home.  He continued to work, albeit in the field, and visited the workshop occasionally.  The applicant confirmed that the letter from his employer provided to the Australian High Commission which stated he was working until 15 July was correct.  The Tribunal finds that if the police had sought the applicant he would have been easy to find.  The Tribunal also notes that the applicant had a passport and a visa to travel to Australia on 21 July 1994 yet he still attended court on 27 July 1994.  This is inconsistent with someone being in fear of the police.  The applicant claimed that he was in hiding from the police.  He had a visa and the means to leave India yet he attended court which is the one place the police he was hiding from were likely to be.  He could have just left India.  The applicant was able to leave India via the airport without incident.  Therefore the Tribunal does not accept that he was in hiding from the police or that he was wanted by the police.”

25                  The Tribunal then said that if it were wrong in refusing to accept that the applicant was sought by the police because they blamed him for losing their case and because he had ruined their promotion prospects, the motives of the police for persecuting him were nevertheless not for reasons related to a Convention ground.  The applicant was targeted in his private capacity as an uncooperative witness.  He was not imputed with a political opinion.  He was not targeted because of his alleged involvement in the KLF and neither was he being persecuted because he was a Sikh.  Hence, the feared persecution could not be “for reasons of” a Convention ground.

26                  The Tribunal then considered whether the applicant was at risk of persecution as a Sikh with no political profile.  It examined various country reports, in particular a series of four United States’ Department of State country reports, several Canadian research papers and a cable from the Australian Department of Foreign Affairs and Trade, all to the effect that only those with a high‑level activist or human rights campaigning profile or high ranking members of the KLF, were at any risk of persecution.  As the applicant fell into none of those categories, he did not have a well-founded fear of persecution.

27                  Finally, the Tribunal examined whether the applicant could relocate within India outside the Punjab.  It found that, as an ordinary Sikh, who did not have any involvement with the KLF and was not of particular interest to the police, the applicant was able to relocate within India and find work as an auto electrician.

grounds of review

28                  The applicant relied on two arguments on this review.  It is convenient to start with the argument which was put second.  The applicant argued that the Tribunal made an error of law, thus enlivening the right of review under s 476(1)(e) of the Migration Act 1958 (Cth) (the Act). 

29                  The error was said to be the failure to properly apply the "What if I am wrong?" test in relation to the finding that the applicant was targeted in his private capacity as an uncooperative witness and thus not for a Convention reason. 

30                  The "What if I am wrong?" approach does not apply in every fact situation.  As was stated by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 576:

“If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution. 

In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct.  That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant.  Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well‑founded fear of persecution for a Convention reason would have been irrational.  Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”

31                  In Minister For Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220, Sackville J said at par 67:

“In general, however, the question of whether the RRT should have considered the possibility that its findings of fact might not have been correct is to be determined by reference to the RRT's own reasons.  If a fair reading of the reasons as a whole shows that the RRT itself had ‘no real doubt’ (to use the language in Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well‑founded fear of persecution does not require a possibility inconsistent with the RRT's own findings to be pursued.  A ‘fair reading’ of the reasons incorporates the principle that the RRT's reasons should receive a ‘beneficial construction’ and should not be ‘construed minutely and finely with an eye keenly attuned to the perception of error’: Wu Shan Liang at 271 to 272, quoting Collector of Customs v Pozzolanic Enterprises (1993) 43 FCR 280 at 287.  Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur).  If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.” 

32                  In the present case, on a fair reading of the reasons of the Tribunal, it is clear that the Tribunal had no real doubt that the applicant was targeted, if at all, for reasons which did not include Convention reasons.  The Tribunal’s analysis of the numerous inconsistencies in the various versions of the events has been set out in pars 20 to 24 of these reasons, and demonstrates the relative certainty with which the Tribunal reached its conclusion that the applicant had not been targeted because he was a Sikh or because he was associated with the KLF. 

33                  In my view, the first ground of review is not made out.  This being so, and there being no other challenge to the finding that the applicant was targeted for a non-convention reason, there is no need to consider the further ground of review.  However, in light of the argument put by counsel for the applicant, I shall briefly address this ground. 

34                  The applicant contends that the Tribunal failed to set out its findings on a material question of fact and thereby failed to comply with the procedure required by s 430(1)(c) of the Act.  In turn, this gives rise to a ground of review under s 476(1)(a) of the Act.  The particular failure alleged relates to a finding set out as follows:

“The Tribunal also notes that the applicant had a passport and a visa to travel to Australia on 21 July 1994 yet he still attended court on 27 July 1994.  This is inconsistent with someone being in fear of the police.” 

35                  After considering another matter, the Tribunal held that it did not “accept that the applicant was hiding from the police or that he was wanted by the police.” 

36                  In setting out the evidence and the claims of the applicant, the Tribunal noted that:

“The applicant was asked why he did not leave before 27 July as then [the police] would not have known that he had not turned up and he could leave before the warrants were issued.  He replied that he was not immigration cleared until 27 July.”

37                  The applicant contended that in finding that he did not fear the police because he did not leave India until after 27 July, the Tribunal made a material finding of fact in respect of which it did not expose its reasoning.  In particular, it did not refer to the reason given in the applicant’s evidence that he did not depart earlier because he had not been immigration cleared.  It was said by the applicant that this explanation had been rejected by the Tribunal and the Tribunal had failed to explain why it was rejected. 

38                  In my view, the first answer to this argument is that the finding that the applicant was not wanted by the police did not in any event involve a rejection of the evidence concerning immigration clearance. 

39                  What the Tribunal determined was that remaining in India until 27 July 1994, and attending court on that day, when the applicant had a passport and visa which would have allowed him to leave on the 22 July 1994, indicated that he did not have a fear of the police.  This determination did not entail a rejection of the fact that he was not immigration cleared.  That fact can be accepted without inconsistency with the conclusion that the events demonstrated a lack of fear of the police. 

40                  The unanswered questions were why immigration clearance was not sought earlier and why, in any event, the applicant attended court on 27 July 1994 at all. 

41                  Furthermore, it seems to me that the particular item of evidence, namely, the applicant's reason for remaining in India after 22 July 1994, was not a material fact for the purpose of s 430.  Rather, it was one of the facts referred to by the Tribunal in assessing the material relating to whether the applicant was wanted by the police.  In the passage extracted in par 24 of these reasons, the Tribunal analysed the evidence and found a series of reasons why the applicant was not wanted by the police.  One was that he was, at the relevant time, living and working in places which were known to and accessible by the police, so that if he had been wanted by them, he could have been easily found.  Another reason was that the applicant was able to leave India through the airport without incident. 

42                  Finally, even if the explanation for remaining in India after 22 July 1994 was a material fact for the purpose of s 430, there was no obligation under s 430 for the Tribunal to indicate why it rejected evidence contrary to its conclusion.  So much emerges from the Minister For Immigration and Multicultural Affairs v Rajamanikkam [2000] FCA 1023 at par 58, where the Court (Kiefel, North and Mansfield JJ) said:

“The respondent submitted that the Tribunal failed to refer to material which suggested Tamils remained at risk in the Jaffna area.  The material is identified as newspaper reports, a report by Amnesty International, and information regarding disappearances by persons and persons detained, together with the respondent's own evidence.  Similarly it was alleged that the Tribunal failed to address evidence put forward by the respondent himself and some country information relating to the situation in Colombo and the Central area.  It follows from the decision in Singh [(2000) 98 FCR 469] that the Tribunal was not obliged to do so.  It was not obliged to identify and explain either its non-acceptance of the respondent's evidence or the reports and other material tendered by the applicant which suggested to the contrary of the material upon which the Tribunal relied in making its findings.”

Conculsion

43                  Consequently, both grounds of review must fail.  The application is dismissed with costs.

Associate:

Dated:              2 March 2001