Hardev Singh v Minister for Immigration and Multicultural Affairs

[2000] FCA 1855

FEDERAL COURT OF AUSTRALIA

Hardev Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1855

HARDEV SINGH  v  MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

V296 of 2000

RYAN J
MELBOURNE
6 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V296 of 2000

BETWEEN:	HARDEV SINGH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	6 DECEMBER 2000
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed. 

2.        The applicant pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V296 of 2000

BETWEEN:	HARDEV SINGH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	RYAN J
DATE:	6 DECEMBER 2000
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal"), affirming a decision of a delegate of the respondent, (“the Minister”), not to grant the applicant a protection visa.  The applicant is an Indian citizen of Sikh ethnicity who arrived in Australia on 25 December 1995.  In making its decision on the applicant's application, the Tribunal did not have the advantage of oral evidence or submissions from the applicant.  It based its findings of fact on information contained in the departmental file related to the applicant, which included his application for a protection visa, written submissions in support of the application and written submissions in support of the application to the Tribunal for review of the delegate's decision.

2. The following summary of the applicant's claims is taken from the reasons of the Tribunal published on 20 March 2000:

   “In an accompanying statement, the applicant stated that he was involved in the struggle for Khalistan (a free Sikh homeland) under the banner of the AISSF (Sikh Students Federation).  He claimed he joined the AISSF in July 1989.  He claimed his brother was an active member of the AISSF and was on a police list for ‘liquidation’.  The applicant claimed that the police often came to his village looking for his brother.  He claimed that on 11 July 1989, his brother was taken away and has never been seen or heard of again. 

   The applicant claimed that he and four others were detained for three days on 10 April 1990.  He claimed they were released on the intervention of local leaders.  He claimed he continued his activities aimed at exposing those who extorted money.  He claimed that his name was then listed as one to be liquidated.  He claimed that he and several others were arrested and interrogated.  He claimed that two of his companions were shot dead in a staged ‘encounter’.  He claimed however, that he was released on 27 June 1991 after the intervention of a prominent politician.

   The applicant claimed he was advised to leave Punjab and so he went to Rajasthan on 3 September 1991 where he claimed he worked as a welder until mid-April 1992.  He claimed that fearing arrest, he left for Madhya Pradesh on 16 April 1992.  He claimed he worked there as a driver.  He claimed that one day, he noticed he was under surveillance by the police but he managed to escape although he left his truck behind.  He claimed that he then arranged his visa on payment of 147,000 rupees.  He claimed the truck was only released by the police after the owner paid a certain sum of money.

   The applicant claimed that because of this harassment, he decided to leave for Australia.  He claimed he left India illegally by paying a bribe to an agent.  He also claimed he had difficulties obtaining his travel documents and that his passport was false.  In a letter sent to the Department on 17 December 1997, the applicant claimed that he had been told the authorities in Punjab were still trying to catch him even after they had been told he had left India.  He claimed they kept coming around to his home and they wanted to ‘liquidate’ him and others associated with the SSF.  He claimed the situation in Punjab had not improved, especially if one was a Sikh activist.”

3. The Tribunal also relied extensively on country information from which it drew conclusions which may be summarised as follows: 

   (i)It was highly unlikely that a person for whom a warrant of arrest was current in India would be able to leave the country undetected or with the aid of bribery unless he or she used a forged passport or passport in the name of some other person.

   (ii)After the partition of India and Pakistan in 1947, the part of the Punjab region which remained under Indian sovereignty was the subject of a political struggle for control between Sikh activists and  Hindu interests which constituted a large majority of the Indian population.  In 1966 the Punjab was again split to form a smaller, predominantly Sikh, state within India.  The Sikh Akali Dal Party was prominent in Punjabi affairs but was forced to compete for support with, on the one hand, the Hindu-led Congress Party, which dominated the central government of India, and on the other hand, Sikh extremists.  One of the leaders of the extremists was Sant Jarnail Singh Bhindranwale, who, with his supporters, in June 1984 took control of the Golden Temple in Amritsar, the Sikhs' holy city.  That provoked a retaliation by the central government named "Operation Blue Star" in which some 70,000 army troops were deployed.  More than 1000 people were killed in two days' fighting, among them Bhindranwale and two other Sikh extremist leaders.

   (iii)The resultant Sikh reaction culminated in the assassination in October 1984 of the Indian Prime Minister, Indira Gandhi, who was gunned down by two of her Sikh bodyguards.  That, in turn, provoked Hindu riots throughout India in which more than 2000 Sikhs were killed and considerable damage was caused to Sikh property.  Terrorism and counter-terrorism ensued, focused on a claim for a separate Sikh state.  Sikh militants regained control of the Golden Temple in Amritsar but the central Indian government imposed direct rule and suspended local government in the Punjab.

   (iv)The Sikh terrorist movement was dominated by the Babar Khalsa (BK), the Bhindranwale Tiger Force (BTF), Khalistan Liberation Force (KLF) and Khalistan Commando Force (KCF).  Those organisations were further fragmented into about 150 subgroups, and there were, as well, another 22 small independent extremist terrorist groups.  Between 1986 and 1992 in excess of 16,000 people were killed in terrorist-related violence.

   (v)The central government sought from 1988 to moderate the terrorism by a combination of military and police repression and civil action programs directed to improving education, agricultural input and civil infrastructure undertakings.  The use of troops, police and paramilitary forces, more than 100,000 strong, improved security to a point where elections could be held in February 1992.  By 1995 terrorist numbers had dropped to something like 211, but sporadic acts of violence still occurred, like that perpetrated by the suicide bomber who killed the Chief Minister of the Punjab and twelve others in Chandigarh in August 1995.  In the elections in 1996 the Akali Dal Party swept to power in the Punjab in alliance with the Hindu nationalist Bharatiya Janata Party, and thereafter terrorism in the region was contained but not eliminated.

   (vi)The All India Sikh Students Federation (AISSF) is not banned at present, although it was banned between March 1984 and August 1985.  The AISSF participated in the 1991 elections.  Since 1992 there has been much less unrest in the Punjab, due partly to the decline in the ideological fervour of the Khalistan movement.  However, police and security forces still resort to regressive measures and may regard as "of interest" a person arrested or detained in the 1980s or early 1990s who is still "on the records". 

   (vii)Streets in Punjabi towns are now safe even at night, and although Sikh secessionists are still regarded as militants and may be subject to human rights abuses by security forces, they are not without legal redress.

   (viii)There is a constitutional right in every Indian citizen to move throughout the country, reside and settle in any part of it and practise or carry on any profession, occupation, trade or business.  As many as 40 per cent of Sikhs live and work outside the Punjab and Sikh men traditionally do so to better themselves.  There are facilities throughout the country for practising the Sikh religion, and it was noted in 1996 that problems of harassment of Sikhs in India as a whole no longer exist.  In the same piece of country information it was noted that "terrorist activity in Punjab has been virtually eliminated."

4. The Tribunal made the following observations by way of findings of fact;

   “The applicant's claims lack important details.  There was no explanation of the inconsistency between the statement in the applicant's protection visa application that he lived at the same address from 1991 until December 1995, when he came to Australia, and his claim that he was on a police wanted list sometime after 1992.

   There was no information as to how the applicant obtained his passport in September 1995 or why he claimed it was false.  Although the applicant claimed he travelled on a false passport, the copy of the passport accompanying his application contains his name and photograph.  In view of the independent evidence on passport and exit procedures in India, above, the fact the applicant departed from Delhi airport using a passport issued in his own name suggests that he was not wanted by the authorities, as he claimed. 

   There was also no information about how the applicant became and remained a member of a student organisation - the AISSF - if he was a welder and a truck driver by training and profession.  He provided no details about his activities or those of his brother in the AISSF.  He did not explain why he was not arrested along with his brother in 1989.  There were no details about the applicant's second alleged arrest and interrogation some time between April and July 1991 such as when, where and why he was arrested and when his companions were allegedly killed.  Significantly, the applicant's claims are inconsistent with the independent evidence (‘All India Sikh Student Federation,’ DFAT Cable ND 2835, 10 August 1994, CX3079) which indicates that as of 1985, the AISSF was not a banned organisation. 

   In any event, the independent evidence, above, indicates that there has been a restoration of normalcy in Punjab and that Sikhs can reasonably relocate to other parts of India. 

   The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention.” 

5. Counsel for the applicant took issue with the suggestion, implicit in the Tribunal's findings, that the applicant could not have been a member of the AISSF, a student group, when he had by training and occupation been a welder and truck driver.  There was evidence, to which Counsel pointed, that the applicant had attended the Guru Nanek National College from May 1989 to April 1990.  However, as I read its reasons, the Tribunal was prepared to assume that the applicant had been a member of the AISSF irrespective of how he might have acquired such membership.

6. Counsel for the applicant also pointed out in relation to the passport in the applicant's own name that the passport disclosed a date of birth, 14 April 1967, which was different by five years from the date of birth, 14 April 1972, asserted by the applicant in his application for a protection visa.  However, I regard the Tribunal's reference to the passport as indicating only that, if the applicant had been on a wanted list as claimed, there was no obvious explanation of how he had been able to leave Delhi without difficulty using a passport in his own name and bearing a photograph of himself.

7. I consider that the Tribunal's approach to the issues raised by the application has been unexceptionable given the applicant's failure to attend and make submissions or give evidence before the Tribunal. Some complaint was raised in the amended application about the Tribunal's alleged failure to give the applicant the invitation required by s 425 of the Migration Act 1958.  However, there was no evidence that the applicant, in fact, did not receive the invitation, and that point was not pressed on the hearing of the present application. 

8. In relation to the effect of an applicant's failure to attend before the Tribunal, I adopt with respect what was said by Wilcox J in Xiao v Minister for Immigration & Multicultural Affairs (2000) FCA 1472 paras 12 and 13, where his Honour said:

   “Mr Lee [who constituted the Tribunal] was satisfied as to the applicant's identity and nationality but said that, under the circumstances of her non-appearance at the hearing, "it is difficult for the Tribunal to satisfy itself that the Applicant does have a well-founded fear of persecution on return to China."  He set out matters that "would have wanted to explore" with the applicant;  "in particular her own personal experiences and difficulties and any particular mistreatment or discrimination she might have experienced in China."  He said the Tribunal was "willing to accept that the applicant was involved in democratic activities in one form or another" but "on the basis of the information before it, the Tribunal does not consider that the applicant has a profile with the Chinese government which would precipitate persecution for Convention-based reasons on her return to China."

   Mr Lee pointed out the absence of many important details.  On a number of occasions in his reasons he referred to his inability to discuss particular matters with the applicant.  It is clear that the applicant's non-attendance at the oral hearing was a major impediment to Mr Lee's being satisfied of the truth of her claims.  He did not find that the claims were inherently improbable.  Nor did he indicate any doubt that, if the claims were true, they would demonstrate the existence of a reasonable fear of persecution for a Convention-related reason if Miss Xiao returned to China.”

9. By contrast in the present case, the Tribunal did indicate a basis for denying the existence of a reasonable fear of persecution by its extensive references to the changed climate which had developed in India generally, and in the Punjab in particular, from at least 1995. 

10. I do not consider that an occasion arose for the Tribunal to ask itself the question discussed by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, "What if I am wrong?"  As I have already indicated, the Tribunal appears to have assumed in the applicant's favour matters asserted by him in relation to his activity as a Sikh secessionist and his membership of the AISSF.  However, it was not prepared to impute to him a profile from 1992 until he left India in 1995 sufficient to attract to him persecutory attention should he now return to India.  In reaching that conclusion the Tribunal was influenced by its perception that terrorism and counter-terrorist perception in the Punjab had substantially moderated, if not been eliminated, in the period which has elapsed since 1992.

11. It may be, as Mr Sanger for the applicant contended, that the Tribunal's review of available country information could have been more extensive and the findings made in the light of such a review could have been more precisely expressed.  However, as was observed in the joint judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

    “...the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. (See McAuliffe v Secretary, Department of Social Security (1992) 28 ALD 609 at 616.) In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”

12. In my view those remarks apply a fortiori where, as in this case, the Tribunal has not had the benefit of submissions from the applicant to give point to its consideration of the facts and the merits of the application.  For these reasons I have concluded that the application must be dismissed.  I shall order that the applicant pay the respondent's costs.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:             6 December 2000

Counsel for the Applicant:	Mr M W Sanger
Solicitor for the Applicant:	Mano Associates
Counsel for the Respondent:	Mr W Mosley
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 December 2000
Date of Judgment:	6 December 2000