FEDERAL COURT OF AUSTRALIA

Bains v Minister for Immigration and Multicultural Affairs [2001] FCA 403

HARVINDER BAINS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 77 of 2000

O’LOUGHLIN J

ADELAIDE

11 APRIL 2001

THE COURT ORDERS THAT:

1.         The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

1                     The applicant, a bachelor, who is a citizen of India, arrived in Australia on 13 June 1997.  He shortly thereafter lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 29 September 1997, a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refused his application.  On 27 October 1997, the applicant applied to the Refugee Review Tribunal (“the Tribunal”) for a review of the Minister’s decision.  That application was unsuccessful.  On 5 June 2000, the Tribunal affirmed the decision not to grant the applicant a protection visa.  The applicant has now applied to this Court to review the decision of the Tribunal.

2                     The applicant was born on 5 May 1970 and is now thirty years of age.  Although born a Sikh in the Punjab, he and other members of his family turned to the Ahmediya (sometimes spelt “Ahmadiya”) religion in August 1996.  Presently, he has a sister living in Australia and a brother living in Nepal.  However, both his mother and his father and another sister continue to live in India.

3                     A migration agent (“the agent”) was retained by the applicant.  The agent assisted in the preparation and lodgment of the application for a visa.  He also wrote a covering letter dated 29 June 1997 advising that he was acting for the applicant and stating, inter alia, that the “foundation of this application is the applicant’s fear of being harmed in India on account of his religious beliefs”.  The agent explained in his letter that the applicant and unidentified members of the applicant’s family had become disillusioned with the religion of the Sikhs.  They also perceived that Sikhs had lost respect in India and were seen as a minority that was “very fundamentalist in their approach to their religion”; they considered that all Sikhs were regarded with suspicion.

4                     The agent’s letter continued as follows:

“Mr Bains states that the above feelings were experienced by his family and they no longer wanted to be identified with a religion that got polluted because of the misdeeds of politicians, terrorists and their nexus and has become directionless and only for political benefits or personal benefits.  There are political speeches in the temples and the religion has lost holiness and no longer gives peace of mind.  The family searched for mental peace in other religions.

Mr Bains states they found a religion which they believed held a background philosophy of human values and this was the Ahmediya religion.”

According to the submissions of the agent, the applicant claimed that his and his family’s conversion to the Ahmediya religion immediately precipitated difficulties.  The agent wrote, speaking of the applicant:

“He states that one month after terrorists approached them and threatened them that they would be eliminated if they did not return to the Sikh religion.  They fined them Rs1,000,000.00.  They approached the police but they did nothing and said they believed converting back was the best thing to do.  The applicant states that he and his family were shocked and lost all faith in the police and their protection.  They had a deadline of 15.7 97 to change back their religion or they would be killed.  The only solution to convert back, flee to another part of India, or leave the country and ask for protection (sic).  The conversion back was not an option as this was against their fundamental belief of right to freedom and the right to choose religion of choice and not live in an atmosphere of fear.

The applicant states that to leave the Punjab  and settle elsewhere was not feasible as the atmosphere in the whole of India is volatile.  The last year India has seen four Prime Ministers.  Hindus are getting very strong politically and are getting very aggressive in their religious approach.  Hindu-Muslim episodes of violence are known to the world.  Kashmir (Muslim problems) (sic).  BJP in India are getting stronger and their following is growing.  Muslims hate Ahmediyas.  People from North India are easily recognised and thus targeted.  The applicants young brother fled to Nepal and he went to Singapore where I (sic) got a visa to Australia.”

5                     In the course of rejecting the applicant’s application, the Minister’s delegate wrote:

“There is no independent information before me to suggest that conversion from one religion to another attracts any form of persecution in India.  India is a secular country.  Country information indicates that India as a whole continues to be a secular state in which all faiths generally enjoy freedom of worship, and that government policy does not favour any religious group.

US State Department, Country Profile – India, March 199, states that;

          ‘the Constitution provide (sic) for freedom of religion, and the Government respects this right in practice.  India is a secular state in which all faiths generally enjoy freedom of worship.  Government policy does not favour any religious group …”

In summary, the above information indicates that the applicant’s fear of harm on return to India is not well founded.”

That statement caused the agent to write, when lodging the application to the Tribunal to review the Minister’s decision:

“In relation to the comments made by the Ministerial delegate at paragraph 5.3.4 of the decision record, we are instructed by the applicant that he had been living in a village all his life and he was never approached by the Sikh separatists to pay any money to the movement against the government.  It was only after his conversion to Ahmadiya that the extortion attempt began.  Furthermore, Mr Bains claims that he does not know anyone else in his village who has been ordered by the Sikh activists to pay such large sums of money.  For these reasons, it is the applicant’s claim that the extortion attempt was triggered by his conversion into the Ahmadiya denomination of Islam.

We have also been instructed by the applicant that in a meeting that took place between the applicant’s father and four of the members of the Sikh separatist movement, it was decided that a 12 month period be given to the family to raise the large sum of money which was demanded.  This time period was not intended for the family to reconvert into the Sikh faith.”

These submissions were noted by the Tribunal in its reasons.

6                     The Ahmediya Islamic movement was founded in the Punjab just over a hundred years ago as a reform movement within Sunni Islam.  Authorities that have been included in the Appeal Book suggest that there are over 100,000 Ahmedis.  One of those authorities said:

“The Canadian Immigration and Refugee Board Research Directorate was in 1996 unable to locate any information about the treatment of Ahmadis by other Muslims or by Hindus in India.  It did, however, come across an article from the Chandigrarh Tribune which reported that the annual Ahmadiya convention had been held in December 1998 in Qadian, Punjab, that it had been attended by a Minister from the state Punjab government and that the Chief Minister of Punjab had sent a message conveying his best wishes to the meeting (India:  the treatment of Ahamdis since 1996 by Muslims and by Hindus … Ottawa, 22 December 1998 IND30774.E).”

That assertion did not match the applicant’s submissions for, as the Tribunal noted, he had claimed that there is “considerable animosity towards Ahmediya in India by Muslims, Sikhs and Hindus.”

7                     In his evidence before the Tribunal, Mr Bains said that he had been subjected to death threats weekly by four Sikh extremists in 1994; he also said that he had been detained by the police for two days “treated cruelly and released after the payment of 100,000 rupees…”  The Tribunal in its reasons noted that the applicant “stated that the militants and the police were coming for him weekly for about a year”.

8                     Immediately following that passage in its reasons, the Tribunal said:

“I said to the applicant that it was surprising that this had not been mentioned before in his application or in his application for review and he said that he had.”

9                     At a later stage in its reasons the Tribunal noted that the applicant had said that he did not know English, that he could not read it and that no one had helped him read the documents “about his application or the delegate’s decision.”

10                  The Tribunal stated that information that was available to it confirmed that serious human rights abuses were committed by the Punjabi police in their efforts to suppress the Sikh militant movement in the 1980s and early 1990s.  However, the Tribunal went on to say that the security situation in the Punjab has improved since 1992.  It recorded the following information about the more recent situation in the Punjab:

“Sikh militancy has been almost eliminated: ‘militant organisations have been shut down or reduced in size, key leaders have been arrested, have gone underground or abandoned the movement, and those supporters who remain have struggled to maintain funding and morale … (but) while the militants’ ability to assert themselves has been temporarily suspended, future manifestations of Sikh militancy cannot be discounted … in large part the workings of the militant Sikh underground remain unknown.’ ‘Much of what was ascribed to militant activity in the late 1980s and early 1990s was actually common criminality – crimes unrelated to the militant movement … many of the so-called militant groups were simply armed bandits taking advantage of the chaotic situation in the state’ (Canadian Immigration and Refugee Board Documentation, Information and Research Branch India: Information from four specialists on the Punjab 17 February 1997).

While there have been efforts to bring the Punjabi police under control, the ingrained culture of using force and other unacceptable methods will take some time to change.  There remains considerable general fear of the Punjabi police who continue to dispense very rough treatment to many of those who are taken into custody (Canadian Immigration and Refugee Board Documentation, Information and Research Branch India: information from three human rights workers and one human rights lawyer from the Punjab 4 June 1997 IND27112.EX).  Sikh people who are not high profile militant suspects are, however, generally not considered to be at risk in India today.  A family member of a high profile individual or someone who provided shelter for militants during the height of the insurgency would not now be considered a high profile suspect.  Nor would a person who simply held a pro-Khalistan opinion.  There is also much better access to judicial recourse if people are treated improperly than existed previously (India: Information from four specialists on the Punjab, cited above).

‘The police (in Punjab) still use lists of people implicated in the movement to round up and interrogate suspects (sometimes in hundreds) after a particular incident … when people are rounded up in Punjab … they are invariably treated as suspects with information on insurgency and subjected to varying degrees of interrogation’ (Canadian Immigration and Refugee Board Documentation, Information and Research Branch India: information from Dr Jasder Singh Rai on human rights and the general situation in Punjab and on Sikhs outside Punjab 10 November 1997 IND28217.EX).  The Tribunal has seen copies of entries from Burning Punjab News on the Internet (‘Punjab’s first ever media site on Sikh holocaust’) which stated that during the first three and a half months of 1997 ‘fourteen Sikhs reported detention by police without charge for several hours to one week’.  Each of these people had been detained previously.  ‘An additional two Sikhs reported police had come to their houses to interrogate them’.”

11                  The applicant advanced his claim for refugee status under the provisions of pars (e) and (g) of s 476(1) of the Migration Act 1958 (Cth) (“the Act”).  Those provisions are as follows:

“476 Application for review

(1)     Subject to subsection (2), application may be made for review by the Federal Court of a judicially reviewable decision on any one or more of the following grounds:

      (a)  …

      (b)  …

      (c)   …

      (d)  …

   (e)  that the decision 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;

   (f)   …

   (g)  that there was no evidence or other material to justify the making of the decision.”

However, before considering the arguments that were advanced on behalf of Mr Bains, it is first necessary to summarise the findings of the Tribunal and its reasons for its decision.  In brief the Tribunal did not believe the applicant.  The Tribunal said that its reasons for coming to that conclusion were as follows: in the first place it held that the applicant “told a markedly different story at the hearing to that which had formed the basis of his application”.  The Tribunal noted that the applicant was not conversant with the English language, but it went on to say:

“The applicant was assisted by an adviser with both his initial application and his application for review yet those applications and submissions dealt only with the implications of the applicant’s conversion to Ahmediya.  It was specifically stated in these materials that the problems began after his religious conversion and the only mention of the police was having been disappointed with their response when the militants’ threats were reported to them.  I consider that the claims concerning the militants’ interest in the applicant and the adverse attention of the police are matters of such conspicuous relevance to his claim to be a refugee from India that it is difficult to see how they could be overlooked by the applicant’s adviser as they prepared the material in support of this application.”

12                  In the second place, the Tribunal rejected the applicant’s evidence about the pressure that he suffered at the hands of the militants and the police in 1994.  As to this, the Tribunal said:

“I have considered the applicant’s claims in the light of independent information summarised above about the state of Sikh militancy in Punjab.  By 1994, the time when the applicant claims that the militants began to harass him, the situation in Punjab was generally calm.  The militant movement had been suppressed and there were very few operatives still in Punjab.”

13                  Immediately following this passage, the Tribunal offered a further comment that was the subject of strong criticism from Mr Clisby, counsel for the applicant.  He argued persuasively that there was no evidence to support the statement that the Tribunal made in the following terms:

“I do not accept that militants targeted the applicant or his family from 1994 as he has claimed: I do not believe that the few remaining militants would use their by then meagre human resources on a sustained pattern of harassment of people such as the applicant or that they would ask such a person, with no apparent interest in Sikh politics, to join their group.”

14                  The statement by the Tribunal that it did “not accept that the militants targeted the applicant or his family from 1994” was a finding that was open to the Tribunal as a consequence of its earlier finding that it did not believe the applicant’s evidence on this particular subject.  That was a finding that was reasonably open to the Tribunal.  The additional statement about the militants “meagre resources” falls into a different category however.  That was a case of supposition on the part of the Tribunal – but it was not a necessary part of its finding.  Its presence does not, in any way, adversely affect the basic finding on the question of belief.  That finding had its basis in the two factors that I have earlier mentioned: the change in the applicant’s story and the finding that Sikh militancy in the Punjab had substantially reduced.

15                  As to the question of fear of persecution on the ground of religion, the Tribunal found as follows:

“I am prepared to accept that the applicant has converted to the Ahmediya religion but note that the overall character of his evidence at the hearing did not indicate that his religion was a factor in his reluctance to return to India.  The applicant’s evidence at the hearing did not support his earlier claim that it was his religious conversion which had sparked the militants’ interest in him and he said that the harassment by the militants had pre-dated his conversion.”

16                  Mr Clisby submitted that there was no foundation in the material that was before the Tribunal that would justify its adverse findings about his client’s credibility.  As to this, it was specifically put to him that he should draw to the attention of the Court where, in the appeal book, there is any reference to the applicant having earlier disclosed that he had, in 1994, experienced hardship with the militants and the police.  Mr Clisby was forced to agree that there was no such material; this was not, as he endeavoured to argue, a minor matter that should have been overlooked.

17                  It is well recognised that the Tribunal must investigate claims for a protection visa with care and, also, with understanding.  It is necessary for members who constitute Tribunals to remind themselves constantly that many of those who appear before them are frightened, fragile people in a foreign land, unable to speak the language and unaware of our legal and administrative system.  Just as Courts should not be overly zealous in examining the reasoning processes of a Tribunal, so also should a Tribunal exercise great care when assessing the importance, relevance and accuracy of any information that is put before it.  Nevertheless, it remains a fact that decisions of a court or a Tribunal about matters of credibility “are often based upon matters of impression, and an unfavourable view taken upon an otherwise minor issue may be decisive”:  Re Refugee Review Tribunal; ex Parte Mansour Aala (2000) 176 ALR 219 at 221 per Gleeson CJ.  If a Tribunal has reasonably come to the conclusion that it is unable to accept an applicant’s evidence and its reasoning process cannot be faulted, there is no room for this Court to intervene even though it considers that it might have come to a contrary conclusion if it had been the original decision-maker.  This is a subject which has often been addressed by the courts.  In Randharwa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451, Beaumont J made these comments:

“Proof of persecution in the context of an application for refugee status is a matter of some complexity.  As A Grahl-Madsen has noted (The Status of Refugees in International Law, pp 145-6), in the proof of refugeehood, a liberal attitude on the part of the decision-maker is called for, since it is a well-known fact that a person who claims to be a refugee may have difficulties in proving his allegations (cf Gaudron J in Chan at CLR 413); and it would go counter to the principle of good faith in the interpretation and application of treaties if a contracting State “should place on a suppliant a burden of proof which he, in the nature of things, could not possibly cope with”.  This should not, however, lead to “an uncritical acceptance of any and all allegations made by suppliants.”

In discussing the burden of proof, the Handbook on Procedures and Criteria for Determining Refugee Status (1979) published by the Office of the United Nations High Commissioner for Refugees takes a similar position (pp 47-9).  Although limits on the use of the Handbook in the interpretation of the treaty were indicated by Mason CJ in Chan (at CLR 392; ALR 42), the Chief Justice went on to say (at CLR 392) that he regarded the Handbook “more as a practical guide for the use of those who are required to determine whether or not a person is a refugee”.

In that context, the Handbook states:

(2) Benefit of the doubt

  203.  After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements.  As explained above (paragraph 196), it is hardly possible for a refugee to “prove” every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognised.  It is therefore frequently necessary to give the applicant the benefit of the doubt.

  204.  The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.  The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.”

18                  I do not consider that the Tribunal has transgressed in any way.  Having regard to the substantial change in the thrust of the applicant’s case, the Tribunal had every right to take a jaundiced view of the applicant and his evidence.  It was not a pedantic exercise as suggested by counsel; it was not a case of imposing some sort of onus on Mr Bains.  It follows that this appeal must be dismissed with costs.

Associate:

Dated:              11 April 2001