FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 857
MIGRATION – application for protection visa – s 424A of the Migration Act 1958 (Cth) – requirement on tribunal to give certain information to the applicant - whether information referred to by the tribunal was specifically about “another person” or was just about a class of persons of which the other person is a member.
HARJIT SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
S34 OF 2001
von DOUSSA J
ADELAIDE
6 JULY 2001
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IN THE FEDERAL COURT OF AUSTRALIA |
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S34 OF 2001 |
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BETWEEN: |
HARJIT SINGH APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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DATE OF ORDER: |
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WHERE MADE: |
THE COURT ORDERS THAT:
1. Application dismissed.
2. Applicant to pay the respondent’s costs of the application.
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IN THE FEDERAL COURT OF AUSTRALIA |
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S34 OF 2001 |
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BETWEEN: |
APPLICANT
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AND: |
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
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JUDGE: |
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DATE: |
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PLACE: |
REASONS FOR JUDGMENT
1 This is an application for an order of review of a decision of the Refugee Review Tribunal made on 25 January 2001. The tribunal affirmed the decision of a delegate of the respondent to refuse the grant of a protection visa to the applicant. The applicant, who is a citizen of India, arrived in Australia on 10 July 2000. On 14 August 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs (the Department). The decision of the delegate to refuse the protection visa was made on 30 August 2000.
2 Only one ground for review is raised, which concerns the application of s 424A of the Migration Act 1958 (Cth) (the Act) to information to which the tribunal had regard in reaching its decision. The applicant contends that the tribunal failed to provide information in writing to the applicant as required by that section in advance of the tribunal hearing, and that accordingly a procedure required by the Act was not observed, that being a ground for review provided for in s 476(1)(a) of the Act.
3 Before turning to that ground, it is necessary to outline the basis of the applicant’s case before the tribunal and the tribunal’s reasons for decision.
4 In its reasons for decision, the tribunal first set out Article 1A(2) of the 1951 Convention Relating to the Status of Refugees (the Refugees Convention) which defines a refugee, and considered the law relating to the interpretation and application of that definition in Australia. The applicant does not allege any error by the tribunal in that part of its decision.
5 The tribunal then set out the claims made by the applicant and the evidence available to it. The tribunal had the Department’s file, including the applicant’s protection visa application and ancillary documents, and his application for review. The applicant gave oral evidence before the tribunal on 9 January 2001.
6 In his application, the applicant indicated that he was single, a Sikh, born in the Punjab in 1971. He said that he lived in the Punjab until he went to the United Arab Emirates (UAE) in 1993. He said he communicated in his native tongue of Punjabi, and could read and write in English. He had completed his secondary schooling in 1990, and undertaken the first year of a Bachelor of Arts degree in 1992. In the UAE he had worked for Everest Rent A Car as a guide and driver since March 1993. In response to questions in the application form asking why he could not return to India and what he would fear might happen to him if he did, he said that in 1988 whilst at school he became a member of the All India Sikh Student Federation (SSF). In pursuit of activities with that organisation, he was detained and ill treated by the police on two occasions, once in June 1989 and again in about May 1992. As a consequence of his treatment he left Punjab and travelled via Bombay to the UAE. He said that in the UAE he met Kamagata Maru Dal (KMD) members, and he started taking part in meetings of KMD supporters. They advised him he should go to India and meet high profile members of the KMD. He said that he arrived in India on 31 May 2000 and the police raided his home on 3 June 2000. The police told his father they wanted him:
“due to pending political old cases to involve me in false cases of spreading terror in Punjab as they came to know somehow that I came to the village and also members of KAMAGATA MARU DAL, International.”
After hiding in Delhi for approximately one month he travelled to Australia. He concluded his application by saying:
“I want to be settled with a permanent meaning full life which is not possible in the UAE. Therefore I seek protection in Australia.”
The respondent’s delegate refused the application. When seeking review by the tribunal, the applicant gave the following reasons, which had been prepared with the assistance of an agent:
“I disagree with the decision of the Department of Immigration and Multicultural Affairs on my protection visa application.
The decision has been taken on the basis of country information and (unknown author) of the Department of Foreign Affairs cables. These reports have not been discussed with me. My circumstances are different than those Sikhs who are not political involved for Khalistan.
Financial, logistical, internal safety prevent me for having meaning full life in India.
Punjab problem is not solved. The police and authority are more active to suppress the Khalistan movement. I attempted to return India but police raided my house to arrest me. Interrogation in India means torture in custody and also economic persecution by means of taking bribe, for getting out of their custody. I seek Tribunal review on my application. I also reserve the right to submit further submissions and to give evidence.”
7 The applicant had been living in South Australia at the time he made the original application for protection and when he lodged his application for review. However, he had moved to New South Wales by the time of the tribunal hearing. In his evidence before the Tribunal the applicant enlarged on the detail about his life in India, and on his work and activities in the UAE from 1993. He told the tribunal that he enjoyed his work in the UAE and that his initial intention in coming to Australia had been to check out possibilities for the car rental company as its owner was considering expanding its operations internationally. However, the owner changed his mind. The company had been expecting him to return to work in UAE within two or three months, but it had now been more than six months and his re-entry visa had expired. He would have to get a fresh visa and work permit to re-enter. He said he had a good relationship with a car rental company who had been pleased with his marketing skills as well as his guide/driving ability. The applicant told the tribunal that he had moved to Coffs Harbour in New South Wales from South Australia because he had heard it was a tourist area and that was the field he enjoyed and in which he had skills.
8 The applicant explained to the tribunal that because of his activities with the SSF he believes that the police were still interested in him when he returned to India in May 2000. He said that he was scared the police might seek to frame him for a political murder that had occurred in 1992. About that event, the applicant told the tribunal that the SSF had organised a peaceful rally to protest against a particular Hindu police officer who was doing many wrong things. The rally took place in 1992 and was organised by senior students at the school who were SSF members. There was a procession. Nothing untoward happened during the rally which was attended by thousands of people. About ten days after that rally a politician who was a member of the Congress Party was killed. Following that shooting, the police came and arrested people who had been involved in the rally, including the applicant. The applicant said that the police wanted to make out a false case against him and his fellow students. They took him to the police station for questioning. He said that those who had been in the front of the rally holding banners and shouting slogans for Khalistan were those who were brought in. He said the police had taken him from his home early in the evening. He was kept at the police station for four or five days and then sent to another prison some distance away where he was kept for about five months and the police were trying to frame him for the politicians murder. He said he was eventually released following the intervention of some influential people from his local area and the payment of a bribe. It was following this that he went to the UAE.
9 The tribunal asked the applicant if he had been involved in any political activities between 1993 and 2000. He said that at the temple he went to in the UAE, people helped raise money for the KMD organisation. There is a KMD monument in the temple. Money is raised and sent to families of activists who have died, been imprisoned or disappeared and whose families continue to suffer and need assistance. The tribunal asked about the KMD organisation. The applicant said that the leader is in Germany, and that it was named after Indian refugees who were killed after being on the vessel Kamagata Maru. He said that he was a member of their association but he was not involved much, due to work commitments. He said that his involvement was in raising money that helped widows and the like. He said that the KMD did things other than raising money but that he was not involved in anything else. He thought that perhaps the police might have been interested in him on his return to India due to his involvement in that organisation.
10 The tribunal asked the applicant why he had returned to India if he was frightened of police persecution instead of coming immediately to Australia, given that he had a visa to do so. The applicant said that he believed he would have experienced a peaceful life in India but events proved otherwise. The tribunal suggested to him that he could live in another part of India if things were uncomfortable in the Punjab. He said that he would not have a peaceful life in India as the police might come and get him because an informant might tell them where he was.
11 The applicant also tendered to the tribunal a written submission that his adviser had prepared which repeated his claim of participation in the KMD whilst in the UAE. To that submission were attached newspaper clippings. One article from The Hindustan Times of 18 April 2000 described the police arrest of six members of a terrorist gang who were described as being aligned with the International Sikh Youth Federation, the Kamagata Maru Force of Khalistan and the Khalistan Commando Force.
12 The tribunal’s enquiries revealed that a ship named the Kamagata Maru had been used in a 1914 attempt to challenge discriminatory laws in Canada relating to Indian immigration and was significant in the Sikh struggle for self determination. Passengers on the vessel had not been allowed to land in Canada, and after some months returned to India where a confrontation with the British authorities led to twenty-nine of the passengers being shot, twenty of them dying.
13 The tribunal searched country and other information available to it to obtain information about an organisation named Kamagata Maru Dal. The tribunal noted in its reasons that there is little published information available about any organisation of that name. The newspaper clipping provided by the applicant’s adviser was one of the few articles that had been found. The tribunal also discovered a newspaper article printed on 1 April 1998 in The Hindu entitled “India Hardcore Militant Surrenders”. The article commenced:
“Amar Singh, a suspected militant wanted in connection with the recent conspiracy to revive violence in Punjab, has been formally arrested by the Kapurthala district police and one .30 bore mauser of Chinese make recovered from his possession, the Director General of Police (DGP), Mr P. C. Dogra, disclosed here today.
Mr Dogra said Amar Singh was a member of the group comprising foreign-based outfits, the Chaheru faction of the International Sikh Youth Federation (ISYF) and the Kamagata Maru Force for Khalistan (KMFK), which had detailed plans to assassinate the Congress president, Mrs Sonia Gandhi, the former Prime Minister, Mr I. K. Gujral and the Punjab Chief Minister, Mr Parkash Singh Badal, during the elections. While six members of the group had already been nabbed Amar Singh was the only member who was evading arrest. He however contacted the police through some Human Rights activists and offered to surrender.”
The article continued to give personal details of Amar Singh and concluded by saying that an operation to neutralise the group of which he was a member began in February when police arrested two other people from a place of worship in Jalandhar city and recovered a large quantity of arms and explosives.
14 The tribunal in its reasons discussed at length relevant independent evidence about India and the Punjab situation from 1984 to the present time. It referred to the information about an organisation/s bearing the Kamagatu Maru name (including the above article from The Hindu), and dealt with a UK Home Office report dated 25 February 2000 which dealt with relocation issues.
15 In its findings and reasons, the tribunal accepted that the treatment of many Sikhs in Punjab from the mid-1980’s until the early 1990’s could be described as persecution. However, the tribunal considered the country information demonstrated that apart from some isolated incidents usually involving high profile activists, the situation in Punjab is now much more settled. The tribunal accepted that the applicant may well have been a victim of ill treatment by the police for his political opinion or imputed links with the SSF (then considered radical) in 1989 and 1992, but the tribunal was not satisfied that the applicant would face similar ill treatment now or in the foreseeable future. The tribunal noted that the applicant did not claim to be a leader of the SSF and had not been involved in its activities since 1992. The tribunal, on the basis of country information, found that the SSF is no longer a significant political force and that its numbers and profile are no longer very high. The tribunal concluded that there is no real chance of the applicant being persecuted for his membership of SSF if he were to return to India.
16 The tribunal then turned to consider whether there was a real chance of the applicant being persecuted if he were to return to India by reason of his membership of the KMD which he had joined in the UAE. The applicant contended that his support for the KMD in UAE would leave him vulnerable to persecution even though his involvement with the organisation had consisted only of raising money for widows and children who had family members who had been involved in Sikh causes. The tribunal said:
“The 1998 articles from Indian newspapers cited by the applicant’s agent in his submission and by the Tribunal [citing ‘The Hindu’] implicate a person involved in the ‘Kamagatu Maru Force for Khalistan’ as being part of a terrorist alliance. Given the limited amount of information available on the Kamagatu Maru Dal organisation that the applicant supported in UAE, it is not clear whether the suspected terrorist belonged to the same or a different group which also took the ship’s name as its symbol. The Tribunal is unable to be satisfied that the organisation the applicant supported in UAE is the same one that is involved in terrorist activities. Given the applicant’s evidence that he has not been involved in any activities beyond fundraising for poorly off families whilst part of the Kamagatu Maru Dal organisation, the Tribunal is not satisfied that the applicant’s activities whilst in UAE would attract the adverse attention of the authorities. The Tribunal finds that the applicant would not face a real chance of persecution in India because of his activities whilst living in UAE from 1993 until 2000.”
17 The tribunal went on to hold that it was satisfied that the applicant was able to enter and leave India without difficulties in 2000, and rejected submissions suggesting the contrary made by the applicant’s advisers in connection with the tribunal hearing. The tribunal held that even if the applicant’s claims of ongoing interest in him by the Punjabi police were valid (which the tribunal doubted) the applicant could live safely in another part of India rather than in the Punjab and that it would be reasonable for him to re-locate. The tribunal noted that the country information suggests that Sikhs can and do live safely in other parts of India except for a small number of high profile activists and militants. The tribunal held that the applicant did not fit the profile of a militant or activist. The applicant is well educated and able to communicate in Punjabi and English. The tribunal noted that he had worked for seven years in a foreign country and been involved in the tourist industry mixing with people from many backgrounds. He had given evidence that his employers regarded him highly and that he enjoyed his work. In Australia he had moved from a location where he had Sikh acquaintances to a tourism area where there are better employment prospects in his field of expertise. The tribunal was satisfied that it would be reasonable for the applicant to re-locate to other parts of India and that he would be able to do so without a real chance of persecution if he did not want to return to the Punjab.
18 The tribunal therefore held that the applicant did not satisfy the criteria set out in s 36(2) of the Act for a protection visa.
Applicant’s Case on Review
19 As indicated at the outset of these reasons, the applicant seeks review on one ground only, namely that a contravention of s 424A occurred. That section, which came into force on 1 June 1999, reads:
“424A (1) Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2) The invitation must be given to the applicant by one of the methods specified in section 441A. However this subsection does not apply if the applicant is in immigration detention.
(3) This section does not apply to information:
(a) that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or
(b) that the applicant gave for the purpose of the application; or
(c) that is non-disclosable information.”
20 The applicant contends that s 424A(1)(a) required the tribunal to give to the applicant notice of the information contained in the newspaper article from The Hindu dated 1 April 1998. It is common ground that no invitation of the kind required by s 424A was given to the applicant in relation to the newspaper article from The Hindu and accordingly it is not necessary to consider the provisions of s 441A.
21 In Naing v Minister for Immigration and Multicultural Affairs [2000] FCA 344 at [32] and [33] Hill J said:
“I think that the correct view of s 424A(1) is that that when the Tribunal forms the view that there is information that is relevant to the review and that that information is or may be adverse to the applicant, the obligation under s 424A(1) arises. That this is so follows from the language of paragraph (b).
Failure to comply with s 424A(1) however could never found a ground of review unless the material was in fact adverse and in fact considered relevant by the Tribunal. This will be so when it is referred to in the Tribunal’s reasons for decision. Material not referred to by the Tribunal can generally and certainly in the present case be inferred by it to have ultimately not been considered relevant to its decision. It is for this reason that I would reject the tender of the whole tape of the hearing of the brother’s application.”
22 The general obligation imposed by s 424A(1) is, however, subject to the limitation prescribed in s 424A(3). The applicant contends that because the tribunal took into account the information in The Hindu article, it was obliged to give notice of that information to the applicant in accordance with s 424A, and was not relieved by s 424A(3)(a) from doing so because the article made reference to a specific person, Amar Singh, and the tribunal in the passage of its reasons set out above referred expressly to “the suspected terrorist”.
23 I am unable to accept this submission.
24 I accept that the tribunal treated information in The Hindu article as relevant to the review, and took that information into account as part of the reason for affirming the decision under review. However, I consider that the information which was taken into account is information to which s 424A(1) does not apply because it is information of the kind which comes within s 424A(3)(a). It is correct, as the applicant’s case emphasises, that The Hindu article refers to another person, namely Amar Singh. However it is not that aspect of the article which was relevant to the issue being considered by the tribunal or which formed part of the tribunal’s reasoning. What was relevant was that the article identified an organisation known by a name which incorporated Kamagatu Maru as being part of a terrorist alliance. That was the information which the tribunal considered might be part of the reason. Insofar as the article also referred by name to another person, Amar Singh, it did so only by identifying that person as a member of the class of persons whose existence might be of relevance to the tribunal’s decision. Accordingly the information fell squarely within s 424A(3).
25 In Tharairasa v Minister for Immigration and Multicultural Affairs [2000] FCA 520 at [15] and [16] Carr J said:
“In my opinion, the language of s 424A is clear. Section 424A(1) is expressed to be subject to subsection (3). Subsection 3(a) provides that the section does not apply to information that is not specifically about the applicant or other person and is just about a class of persons of which the applicant or other person is a member.
I think that the exclusion worked by subsection (3) should be applied according to its terms in this matter. The country information upon which the Tribunal relied was not specifically about the applicant or another person and it was just about a class of person of which the applicant is a member i.e. Tamil civilians, deportees to Sri Lanka, young Tamils, and Tamils wishing to return to Jaffna from other parts of Sri Lanka. In those circumstances, I do not consider that s 424A required the Tribunal to give particulars of this information to the applicant. Accordingly, I reject the applicant’s first ground.”
26 In my opinion, the present case is of the same kind as that considered by Carr J. Here the relevant class of person of which Amar Singh was a member was the class comprising members of an organisation known by name which included Kamagata Maru.
27 In my opinion, the sole ground for seeking an order for review raised by the applicant is not made out.
28 There is a further obstacle which in my opinion confronts the applicant. The tribunal held that it would be reasonable for the applicant if he were to return to India to re-locate outside of the Punjab, and that he could do so without a real chance of persecution. That finding is not challenged by the applicant and is one justified on the material in accordance with the principles discussed in Randhawa v Minister for Immigration and Ethnic and Local Government Affairs (1994) 52 FCR 437. In these circumstances it would be futile to return the matter to the tribunal: Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 136 per Wilcox J and Rahim v Minister for Immigration and Ethnic Affairs (1997) 78 FCR 223 at 238 per Sackville J.
29 The application is dismissed with costs.
I certify that the preceding twenty-nine (29)
numbered paragraphs are a true copy of the
Reasons for Judgment herein of the
Honourable Justice von Doussa.
Associate:
Dated: 5 July 2001
Counsel for the Applicant: Mr M Clisby
Solicitors for the Applicant: Mr M Clisby
Counsel for the Respondent: Ms S J Maharaj with Ms K Southcott
Solicitors for the Respondent: Sparke Helmore
Date of Hearing: 20 June 2001
Date of Judgment: 6 July 2001
