Singh, Balwir v Minister for Immigration & Multicultural Affairs
[1997] FCA 412
•22 MAY 1997
CATCHWORDS
IMMIGRATION - refugees - well-founded fear of persecution - facts on which fear based - whether Refugee Review Tribunal obliged to conduct inquiries into the authenticity of documents - whether obligation to consider obtaining further evidence - Tribunal decided application on basis that it disbelieved the majority of applicant's claim - no substance in application - no ground of review demonstrated.
Migration Act 1958 (Cth)
Procedures and Criteria for Determining Refugee Status
published by the Office of the United Nations High
Commission for Refugees, Re-edited, Geneva, January 1992
Chan Yee Kin v The Minister for Immigration and Ethnic Affairs
(1989) 169 CLR 379
Magyari v The Minister for Immigration and Multicultural
Affairs (unreported: 22 May 1997)
Surjit Singh v Minister for Immigration and Ethnic Affairs
(unreported: 30 May 1996)
Minister for Immigration and Ethnic Affairs and Refugee Review
Tribunal v Surjit Singh (unreported: 7 May 1997)
Minister for Immigration and Ethnic Affairs and Refugee Review
Tribunal v Jagjit Singh (unreported: 7 May 1997)
No SG 65 of 1996
BALWIR SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
O'Loughlin J
Adelaide
22 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 65 of 1996
)
GENERAL DIVISION )
B E T W E E N:
BALWIR SINGH
Applicant
- AND -
THE MINISTER FOR
IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 22 May 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the costs of the respondent of and incidental to the costs of this application and order, which costs are to be taxed in default of agreement.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 65 of 1996
)
GENERAL DIVISION )
B E T W E E N:
BALWIR SINGH
Applicant
- AND -
THE MINISTER FOR
IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
Coram: O'Loughlin J
Place: Adelaide
Date: 22 May 1997
REASONS FOR JUDGMENT
The applicant, Balwir Singh, arrived in Australia on 27 June 1991 as a visitor. On 24 September 1991 he applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth) ("the Act"). His application being unsuccessful, the applicant sought review from the Refugee Review Tribunal ("the Tribunal") but was again unsuccessful. The applicant now asks this Court to review the decision of the Tribunal.
The applicant, a married man, is aged 62 and is an Indian national whose wife has returned from Australia to India to care for their younger son. The applicant had earlier visited Australia arriving on 3 November 1987, departing 5 months or so later on 29 April 1988.
In support of his claim for refugee status, the applicant stated that he supported the cause of the Sikh people and the Akali Dal, which was a political party associated with the Sikh religious movement. He said that in the 1970's and the early 1980's he went on many protest marches and demonstrations and attended public meetings. The principle thrust of the applicant's case rested not so much upon himself, for he acknowledged that he was not a well known political activist, but rather upon the activities of his elder son, Balwinder and to a lesser extent, his younger son, Mandhir.
According to the applicant, Balwinder became involved in the political activities of the All India Sikh Students Federation ("the AISSF") while at high school, eventually becoming the leader of the fifty or sixty young members of the AISSF in his area. Eventually, so the applicant claims, Balwinder's activities came to the attention of the police and in late 1985 it was necessary for Balwinder to "go underground". The applicant said that as a result of Balwinder's activities, the applicant was taken to the police station on three occasions and on each occasion beaten unconscious. The first time was in June 1986 when the police came looking for his son and took the applicant away, detaining him for six days. The second time was in November 1986 when he was held for three days. The applicant said that on each occasion he was released after the payment of a bribe and further that as a result of these incidents he lived in fear for a few months in late 1987. The
third occasion occurred in June 1990 when he was once again arrested and later released after two days upon payment of a bribe. The applicant acknowledged that in November 1990 he left India and visited relatives in England, remaining there until May 1991 when he returned to India.
Among the papers submitted to the Tribunal in support of the applicant's submissions was a letter from his "village headman" dated 1 April 1996, stating that on 30 March 1996 the headman had found police beating the applicant's wife. The headman also wrote that the police had asked him about the whereabouts of the applicant and his two sons. Another document was a letter from the applicant's wife, dated 6 April 1996. Contrary to what the village headman had written, the applicant's wife stated that she had been beaten by the police during a raid on the village on 28 February 1996. In her letter, the applicant's wife also wrote that the police had told her that they had warrants for the arrest of her two sons. Save for the important discrepancy concerning the date of the beating, the applicant's wife confirmed the village headman's advice that he had intervened on her behalf and asked the police to stop beating her.
The Tribunal in the course of its reasons noted that despite the applicant's claims that he was beaten by the police he had returned to India after visiting Australia in 1987-1988 without applying for refugee status. He visited England again in 1990 but returned to India without applying for refugee status. Nevertheless, the Tribunal stated that it was prepared to "assume" that the applicant, being outside his country of origin, has a subjective fear of persecution should he be returned. The Tribunal then proceeded to consider whether the applicant came within the definition of a "refugee" and if so, whether there was a "real chance" of persecution occurring for a Convention reason should he be returned to India. The applicant had placed his claim upon the premise that he feared persecution for reasons of his Sikh religion and the political opinions attributed to him because of the activities of his sons. The applicant however, faced an almost insurmountable hurdle. The Tribunal was not prepared to accept him as a witness of truth. The Tribunal summarised the important aspects of the applicant's claims:-
"The applicant's claim to have a well-founded fear of persecution essentially relies on the activities of his son, Balwinder, who was in the AISSF, and to a much lesser extent on his other son, Mandhir. However, for the reasons stated below I have reservations about some of the applicant's supporting evidence.
The AISSF has a number of factions including activist factions. It was briefly proscribed in 1984/85, the ban being lifted in April 1985 (DFAT Country Profile India, June 1984 p.7). In his submission of 29 May 1996 the applicant states that Balwinder became the leader of 50 or 60 young AISSF members in his area and that Balwinder went underground in late 1985. However at the hearing he said that he did not know what Balwinder's position was, only that there were about 50 in his group ("It is possible he was chief or not"), adding that the police thought he was a leader. I do not find it credible that the applicant would not know whether or not his son was a leader and I conclude from this that the applicant is exaggerating the importance of his son's position in the AISSF.
The applicant claims that on two occasions in 1986 and again in 1990 he was arrested and questioned about his son and that he was beaten while in detention. Having
regard to the fact that the applicant did not apply for refugee status on his first visit to Australia or while he was in England, and to the fact that in 1991 he returned to India from England rather than proceeding direct to Australia; and to my findings (see further below) on the truth of some of his evidence, I have reservations about his claim that he was ever detained and beaten by the police.
Notwithstanding my reservations, however, there is considerable evidence available which supports the applicant's claim of police violence at the time (US Department of State Country Reports on Human Rights Practices for 1992; Amnesty International News Release "India: Amnesty International Calls for end to "Rampant" Abuses by Security Forces in Punjab", 10 May 1991: ASA 20/16/91; Torture in the Eighties, Amnesty International). Accordingly, I will extend the benefit of the doubt to him and accept that he was detained and mistreated in 1986 while being questioned about his son's activities. In connection with his claim to have been beaten in 1990, in his evidence to the Department the applicant stated that in 1989 the police did not believe that Balwinder was in Japan and "they still regularly came and checked to see whether he was there". However, when questioned on this point at the hearing, he said that the police believed him because the village headman and others confirmed his son was in Japan. If this statement is to be accepted then, having regard to his claim to the Department that Balwinder went to Japan in 1989 (or 1988 according to his statement at the hearing), I do not accept that the police kept coming and looking for Balwinder and again arrested the applicant in June 1990, a year or two after Balwinder went to Japan.
The applicant also states in his evidence to the Department that there were many other occasions when he was visited by the police during which he was shoved, threatened and abused. At the hearing, he said that when the police visited his house he was normally abused though he was also slapped on one occasion. I accept that the applicant was visited at home on a number of occasions and that he was sometimes threatened and abused during these visits and on one occasion slapped.
At the hearing the applicant said that his wife was recently beaten by the police on one occasion. He was asked whether his wife had ever been beaten before and replied that it "possibly" happened before. However, I do not believe that the applicant would not have known whether his wife had been previously beaten. Further, the letter from Saroop Singh Johal states that in 1989 on a visit to India the applicant told him that the police had tortured and beaten his whole family, "even the women". Since the applicant himself has not made this claim - he claimed only that he himself was beaten in detention in 1986 and 1990 - and has stated that he was only aware of his wife being beaten recently on one occasion, I do not accept that she has been beaten by the police in the past. Saroop also states that the applicant told him when he came to Australia that the police had "come to his house many times and tortured them again and again". As the applicant himself makes no such claim, I do not believe this and, accordingly, place no credence on Mr Saroop's letter.
I also note that his wife wrote that she had been beaten on 28 February 1996 during a raid on the village and that the village headman came and pleaded with the police to stop; while a letter from the village headman is quite definite in stating that he went to the applicant's house "[the] day before yesterday" and found the police beating his wife. As the letter was written on 1 April 1996, the day in question was 30 March. Having regard to this discrepancy and to my finding that the applicant's wife has not been beaten in the past when the situation in the Punjab was much worse than it is now I do not accept that the applicant's wife has been beaten by the police recently or at any other time."
Applying the test for determining an applicant's entitlement to a protection visa articulated by the High Court in Chan Yee Kin v The Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 to the circumstances of this case, the Tribunal came to the conclusion that it was not satisfied that there was a real chance of the applicant being persecuted for a Convention reason if he returns to India.
In his application to this Court for a review of the Tribunal's decision, the applicant has alleged that the decision involved an error of law and that there was no evidence or other material to justify the making of the decision. The applicant therefore submitted that the decision was a judicially reviewable decision pursuant to s 476(1)(e) and (g) of the Act. In my opinion, the applicant has failed
to point to any part of the Tribunal's reasons that could amount to an error of law. The structure of the applicant's grounds in support of his application for an order of review reveals the same approach that was adopted in Magyari v The Minister for Immigration and Multicultural Affairs and to which I referred in detail in my judgment published this day. The draftsperson of the application has taken each adverse comment, observation, finding or conclusion of the Tribunal, called it a "Decision" and then claimed that "there was no evidence to justify the making of this decision". Twenty six such complaints were made (although nine of them were withdrawn prior to the commencement of submissions). Another five of them dealt with the question of warrants for the arrests of the two sons and they are the subject of special comment later in these reasons. Three of the remaining grounds are set out below. It is not necessary to quote all remaining grounds as they form part of a pattern:-
"1.6The Tribunal erred in finding that there is nothing in the country information or in the Applicant's evidence which suggests that the Applicant's support of the Akali Dal places him at risk of persecution (see p.15 of the decision). There was no evidence to justify the making of this decision.
1.9The Tribunal erred in not accepting that the police kept coming and looking for Balwinder and again arrested the Applicant in June 1990, a year or two after Balwinder went to Japan (see p.16 of the decision). There was no evidence to justify the making of this decision.
1.11The Tribunal erred in not accepting that the Applicant's wife has been beaten by the police in the past (see p.16 of the decision). There was no evidence to justify the making of this decision."
These and like subject matters cannot be regarded as errors of law. No doubt the applicant would disagree with the Tribunal's conclusions, no doubt he is disappointed with its ultimate decision. But that does not expose its conclusions or final decision to judicial review for error of law.
Next, I turn to the "no evidence" argument. For the reasons that I have explained in my decision in Magyari, the conclusions of the Tribunal cannot be attacked on the "no evidence" ground. The relevant decision of the Tribunal that the applicant sought to impugn was its decision to affirm the earlier decision of the Minister's delegate denying the applicant any entitlement to a protection visa. That decision did not require the prior establishment of a particular matter (c.f. par 476(4)(a)) nor was the decision based on a particular fact that did not exist (c.f. par 476(4)(b)). There remains then the question of the warrants. The applicant provided to the Tribunal two documents headed "Warrant of Arrest" which were completed in the names of Balwinder Singh and Mandhir Singh. The Tribunal concluded however that the warrants of arrest were not authentically genuine documents. The applicant relied upon the unreported judgment of Branson J in Surjit Singh v Minister for Immigration and Ethnic Affairs (30 May 1996) where her Honour said:-
"I note, however, that in circumstances in which an applicant for refugee status produces a document, such as a Warrant of Arrest, which purports to be an official document issued in a foreign country, in the absence of clear evidence which reveals it to be a forgery, its authenticity, if in issue, is a matter appropriate for verification by the tribunal through official channels.
Serious difficulties might well stand in the way of an applicant for refugee status seeking such official verification."
These views were repeated by her Honour in Jagjit Singh v Minister for Immigration and Ethnic Affairs (unreported: judgment delivered 30 May 1996). However, subsequent to the hearing in this matter, the views of her Honour have been rejected by a Full Court of this Court in Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal v Surjit Singh and Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal v Jagjit Singh (both unreported, 7 May 1997). The Full Court confirmed the view that where an applicant produces a document which purports to be an official document issued in a foreign country, there is no general rule obliging the tribunal to verify its disputed authenticity.
The applicant also relied on a passage from the handbook on Procedures and Criteria for Determining Refugee Status published by the Office of the United Nations High Commission for Refugees (Re-edited, Geneva, January 1992). The following passage appears in par 196 at p 47:-
"Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Using such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons for the contrary, be given the benefit of the doubt."
The applicant complains, as is the fact, that the Tribunal did not check the authenticity of the arrest warrant through official channels.
In my opinion it is not necessary to express a view on the two decisions of Branson J nor is it necessary to consider the application to Australian Domestic Law of the passage of the handbook. In this case there were justifiable reasons entitling the Tribunal to find, as it did, that the two warrants were not genuine. To repeat the words of the Full Court in Surjit Singh and Janjit Singh (supra), the Tribunal's findings with respect to the arrest warrants were conclusions to which it was entitled to come. If there is a need for the Tribunal to make independent investigations, as to which I need not express a view at this stage, that need did not arise in this case. In concluding that the documents were not genuine arrest warrants the Tribunal said:-
"The document pro-formas, which have been filled in by ball-point, are obviously photocopies - and very poor copies at that, some words being barely readable. In this regard, comments made in a report by the Department's Document Examination Unit (DEU) in relation to photocopied "warrants" in connection with another matter (Tribunal decision V95/03901) are equally applicable here. The DEU report stated:
This is very uncommon in the source country where the cost of printing forms in bulk is considerably less than the cost of individually photocopying an original document.
The pro-forma also includes alongside the words "Dated this ....", the date "198.." (The fourth digit is not clear). If the document were to be taken as genuine, this indicates that the document has not been re-printed but has been photocopied for at least six years, which, having regard to the above DEU comments I do not find credible.
The pro-forma misspells the word "Magistrate" as "Magisterate" twice. The word appears a third time on the pro-forma but the quality of reproduction is so poor that the spelling cannot be made out. The word "surety" is also misspelt "suriety"
The pro-forma states "Name & designation of person who is to executed" instead of "... person who is to execute"."
During the course of submissions the applicant also sought and obtained leave to add, as an additional ground for review, a claim that the Tribunal failed to comply with the provisions of par 476(1)(a) which makes available as a ground of review the proposition that:-
"Procedures that were required by this Act or the Regulations to be observed in connection with the making of the decision were not observed;"
Based on the reasoning in the two judgments of Branson J and the contents of the handbook it was submitted that the need for authentication of the warrants was a "procedure" that was required by the Act or the Regulations. In view of the decision that I have arrived at, that is, that the Tribunal was justified in finding that the warrants were not genuine, it is not necessary for further investigation of this ground of review.
In my opinion there is no substance in this application. It must be dismissed with costs.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice O'Loughlin
Associate:
Dated:
Counsel for the Applicant : Mr M W Clisby
Solicitor for the Applicant : Paul Kirk Roberts
& Co
Counsel for the Respondent : Ms S J Maharaj
Solicitor for the Respondent : Australian Government
Solicitor
Date of Hearing : 18 April 1997
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