Dhillon v Minister for Immigration & Multicultural Affairs

[1999] FCA 1878

FEDERAL COURT OF AUSTRALIA

Dhillon v Minister for Immigration & Multicultural Affairs [1999] FCA 1878

IMMIGRATION – Protection Visa – application for review of Refugee Review Tribunal – failure to give reasons – costs.

Migration Act 1958 (Cth), s 430(1)(b)

AAA v Minister for Immigration and Multicultural Affairs [1999] FCA 1699, followed
Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, followed
Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60, followed
Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741, not followed

RAJ NANDAN DHILLON v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 708 of 1999

MADGWICK J

17 DECEMBER 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 708 of 1999

BETWEEN:	RAJ NANDAN DHILLON APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MADGWICK J
DATE OF ORDER:	17 DECEMBER 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application is allowed and the decision of the Refugee Review Tribunal quashed.

2.The matter is to be remitted to the Refugee Review Tribunal for determination according to law.

3.The respondent is to pay the applicant’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 708 of 1999

BETWEEN:	RAJ NANDAN DHILLON APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	MADGWICK J
DATE:	17 DECEMBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

HIS HONOUR:

1. In this case, the applicant, Mr Dhillon, is a wealthy, liberal Sikh from the state of Punjab in India.  He comes from a well off, politically active family who have been great adherents of, and flag bearers for, the Congress Party.  It may be inferred that he and his family strongly hold the view that the government in India, at all levels, should be secular.

2. In 1996, as a result of international trade in the applicant’s business as a manufacturer of plastic goods, a substantial sum of money was owed to him and arrangements were made to pay him in Uganda, where he went to collect it.  The money was not forthcoming.  He was then told that it would be paid to him in India.  He went back to India.  It was not paid.  The applicant was then involved in a dispute of some kind, and was charged with a serious offence, which sounds like what in Australia we would call armed robbery.  He became aware that a warrant for his arrest had issued and that it was to be executed by the Punjabi police. 

3. The applicant’s case was that although he had not surrendered himself to the police (and the general reputation of the Punjabi police, according to the country information, would suggest that such an act of compliance with the law may be unwise) he was quite prepared to deal with the entire issue of the armed robbery charge, which he strongly disputes, in ordinary ways.  What made the difference to him was the election of a government of the Punjab formed by a coalition between the Bharatiya Janata Party (“BJP”) and, strangely perhaps, a party committed to much greater autonomy for Sikhs. 

4. Pending the result of that election, he flew to Hong Kong to await the result.  Upon understanding that the government would not be formed by his own Congress Party but by the BJP/Sikh Coalition, he promptly flew to Australia where he shortly sought refugee status.  His case was that he was at risk of persecution for reasons of both his political opinion and religion.

5. In relation to his claims based upon his religion, while the applicant identifies himself as a believing Sikh, he and his family do not believe it necessary to comply with, and do not in practice comply with, certain traditional Sikh observances.  In particular, he cuts his hair so that he is clean-shaven and he does not wear a turban.  Since the applicant’s family is prominent in the local community, and because he has spoken out against Sikh fundamentalism, as he sees it, his religious differences with the Sikh activists who comprise and support the Sikh party now in government, are well known.  It is the accession to political power of this party which is both a political and a religious force dedicated to Sikh rights, that, so he says, puts him at risk.

6. To bolster his case, the applicant claims that in this situation of political turbulence his father became embroiled in a land dispute, which put his family at such risk that they moved from their traditional rural electorate to the city.  Further, the applicant claims that his own factories have been targeted for economic reprisal by the new government because of his political opinion.  His brother, six months before his case was heard by the Tribunal, was arrested for "misbehaviour".  It is properly conceded for the Minister that the claim in this regard, which appears to have been accepted by the Tribunal, is that the brother was imprisoned for a week for an allegation which if true was never properly charged or particularised against him.

7. The Tribunal member recounted the applicant’s claims and referred to some of the independent evidence which indicates that the appalling human rights abuses that took place in Punjab at the height of the separatist Sikh movement have, over time, largely subsided.  The militant Sikh leadership is apparently being literally killed off.  Erstwhile large organisations which supported separatism have come back to the democratic fold and have accepted the continuance of the Indian state in their region.  However, police torture remains endemic in the Punjab, as elsewhere in many parts of India, and police memories of (what it is not unfair to call) their war against the Sikh separatists, and the sufferings of many of them and their comrades, remain alive and potent.

8. The Tribunal found that the armed robbery charge against the applicant did not arise out of any political or religious matter, and no criticism was made of that finding.  Likewise, a finding was made that the dispute over land appeared not to have been motivated for a Convention reason by those opposed to his family.  Immediately following those findings, the Tribunal member referred to his "conclusion" that the motivation to use "political influence" against the applicant, which had been employed by the applicant's adversaries, was for the advancement of private benefit.  Thus, they were either not motivated by any political opinion imputed to or actually held by the applicant at all, or were not sufficiently so motivated.  It was therefore considered that the potential for "personal gain" constituted the predominant motivation for the alleged harm and not the applicant's political opinion. 

9. Viewing the Tribunal member's reasons charitably, as I am required to, this passage, it seems to me, would amount to a reasonable enough explanation of the Tribunal's reasoning processes in relation to the claim that a real prospect of risk for the applicant is shown, among other things, by what has happened in relation to his father and what may have happened in relation to his own factory.  No error was demonstrated with respect to this reasoning.

10. The Tribunal went on to say that it found that the applicant's fears that Sikh fundamentalism might undergo a resurgence were mere conjecture, unsupported by any evidence from current trends, and it rejected as merely self-serving recent warnings by police about the resurgence of militancy.  The Tribunal referred, in general, to "a profound lessening of tension and violence in the Punjab in recent times" and to the fact that "the elections and their aftermath were not marked by violence".  Accordingly it was concluded that any threats to the applicant and his family, “if made, can be seen as having been made during a period of heightened political tension and are no longer relevant to the applicant's present situation."

11. It seems to me that the applicant’s claims as to what his brother was recently subjected to and why, were matters of real significance going both to the applicant's sincerity and to his objective safety.  The applicant, clearly enough, urged upon the Tribunal that his brother was being persecuted for political or religious reasons.  If there was any real chance that this was right, then the Tribunal would have needed, as a matter of logic and fairness, to have considered the applicant's claims in the light of that fact, and to have looked again at its conclusions about the general situation.  This is a case in which the Tribunal might well have concluded that, despite the general situation being such that the applicant is probably not at risk, if the matters in relation to his brother were as claimed, a real chance of persecution remained.  The Tribunal dealt with the issue of the brother in this fashion:

    “The Tribunal is prepared to accept the applicant's assertion that his brother was [gaoled] for a week for ‘misbehaving’ some six months ago but finds that this has no bearing on the applicant's own fear of persecution.”

12. One can imagine a number of reasons why the Tribunal might have so found, but as I have indicated, it seems that this was a critical matter in the applicant’s case and that the Tribunal member did not explain why he came to that conclusion.

13. The applicant was self-represented before the Tribunal.  It is possible that something passed, in the course of what one imagines were submissions by the applicant to the Tribunal, or in the course of the applicant's oral evidence, that could make the reasons apparent, but if that were so, it seems to me that the Migration Act 1958 (Cth) (“the Act”) requires, in requiring written reasons for findings, that there be some, even if brief, reference to this. It seems to me that this was a material breach of s 430(1)(b) of the Act.

14. Another of the criticisms made by counsel for the applicant seems to me to have substance.  It is this.  The applicant, on any reasonable analysis, presented, as I have indicated, a two-fold case:  persecution for religious belief, as well as, or in the alternative to, reasons of his political opinion.  It may be inferred that the religious claim was rejected, because in his final statement of conclusion, the Tribunal member said:

    “In the light of all the evidence before it, the Tribunal finds there is no real chance that the applicant is someone who would be now at risk and hence finds that any fear the applicant may have of persecution for his political opinion or for any other Convention reason, upon return to India not to be well founded.”

15. But there is no reason given for the rejection of this claim as to religious persecution at all. Again, one can imagine why the claim might have been rejected:  having rejected a claim for political persecution, which was founded on the accession to political power of the Sikh based party, and having regard to the fact that there was an inter-relationship between the political and religious convictions of adherents of that party, it might be that the Tribunal member had concluded that, since there was no risk of political persecution there was none of religious persecution either, and for the same reasons.  However, one cannot infer that the Tribunal must have so reasoned.  The mechanisms by which political and religious persecution might be inflicted are not necessarily the same.  For example, political persecution could only be reasonably expected at the hands of the Punjab government by its direct acts in relation to the applicant.  However, in a land where communal tensions run high and religious excesses are not uncommon, he might be at risk of religious persecution from religious fanatics, who while they would probably support the Sikh based party, might have no political power themselves.  It might be the inaction of the government that would insufficiently protect him against intra-Sikh religious excesses. 

16. Thus, one is not justified in inferring, as distinct from speculating, that it was the view of the Tribunal member that the rejection of the claim for political persecution would necessarily result in a rejection also of the claim as to religious persecution. The fact is that the Tribunal member did not deal with the matter at all, and it is not the task of the Court to go beyond a charitable reading of the Tribunal member's decision and attempt to fabricate reasons that should have been given in writing when they were not. This amounts to another breach of s 430(1)(b).

17. The decision in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 was not to hand when I delivered my preliminary reasons orally. I would in any case follow Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 in preference to Xu for the reasons given by Burchett J in Montes-Granados v Minister for Immigration and Multicultural Affairs [2000] FCA 60 and by Einfeld J in AAA v Minister for Immigration and Multicultural Affairs [1999] FCA 1699.

18. It seems to me, accordingly, that somewhat regrettably the matter will have to go back to the Tribunal.  I say somewhat regrettably because on the material which I have seen there appears to be a very strong case for saying that whatever the applicant's problems might be in his own region, he could easily be relocated elsewhere in India.  He is not obviously of any different "racial type", if such a thing exists, from many non-Sikh Indians.  He is not impecunious.  As far as I can see, the issue of a warrant for his arrest for a non-political offence has nothing to do with the question of relocation for purposes of ascertainment of his refugee status.  One might have thought that there was a strong case for finding that he can quite easily relocate within his own country.  However, the Tribunal made no such finding, and if the Tribunal member were going to rely on any such approach, there should certainly have been a conclusion stated to this effect and some reasons for it given.  The case is not so overwhelmingly obvious or insuperable as to justify my drawing the conclusion that the Tribunal must inevitably find that he could relocate so that I would be justified in withholding relief from him on discretionary grounds. 

19. Other criticisms of the Tribunal member's decision were made by the applicant, but I need not deal with them.  In fairness the applicant is entitled to have his case reconsidered by the Tribunal on the material that is then before it, and any view that I have expressed about relocation will naturally not be held against him by the Tribunal.

    Disposition

20. The decision of the Refugee Review Tribunal is set aside and the matter will be remitted to the Tribunal for reconsideration according to law.  Costs will follow the event.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated:            17 December 1999

Counsel for the Applicant:	C De Robillard
Solicitor for the Applicant:	Harish Prasad & Associates
Solicitor for the Respondent:	M Allat of Australian Government Solicitor
Date of Hearing:	17 December 1999
Date of Judgment:	17 December 1999