Singh, David Jaswant v Minister for Immigration and Ethnic Affairs

[1998] FCA 1755

FEDERAL COURT OF AUSTRALIA

MIGRATION – review of decision of Refugee Review Tribunal (“RRT”) – whether refugee - whether well-founded fear of persecution for Convention reason – member of particular social group – race – procedural fairness – access to departmental file.

The Migration Act 1958 (Cth), ss 420, 430(1)(c), and 476(1)(a)

1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees

DAVID JASWANT SINGH V

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
NG 412 OF 1998

TAMBERLIN J
SYDNEY
24 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 412 of 1998

BETWEEN:	DAVID JASWANT SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	24 DECEMBER 1998
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

The application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 412 of 1998

BETWEEN:	DAVID JASWANT SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES:	TAMBERLIN J
DATE:	24 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

Mr Singh, a thirty-one year old Fijian male of Indian ethnicity, arrived in Australia on 12 March 1997. Thirteen days later he lodged an application for a protection visa under s 36 of the Migration Act 1958 (Cth) (“the Act”). This application was refused by a ministerial delegate on 23 December 1997. He then lodged an application for review to the Refugee Review Tribunal (“the RRT”), which was also unsuccessful. In the hearing before me, Mr Singh seeks review of that decision.

Under the Convention Relating to the Status of Refugees signed in Geneva on 28 July 1951 and the later Protocol Relating to the Status of Refugees signed in New York on 31 January 1967, a refugee for the purposes of the Convention is a person who:

“… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country…”

The relevant date for deciding whether a person is a “refugee” is the date of the determination of the application by the RRT, which in this case is 2 April 1998.

This matter came on for hearing on 15 October 1998.  Mr Singh applied for an adjournment to another hearing date, which I refused for reasons set out in an ex-tempore judgment delivered by me on that day.  After the adjournment had been refused, Mr Singh refused to make any submissions in support of his claim on the basis that he had no legal representation and that he had not been furnished with all necessary documentation.

Mr Singh impressed me as a highly articulate and intelligent man with a mastery of the English language.  It appears that he can speak and read in several languages in addition to English and Hindustani.  He had twelve years of school education.  I note that the RRT observed in its decision that Mr Singh attended the hearing alone and that he gave his evidence in a fluent, articulate and sophisticated manner in the English language.  After leaving school, Mr Singh worked in various positions in Fiji until 1993 and thereafter he said that he was unemployed.  In a letter of 10 March 1996, he stated that he had completed ten out of approximately seventeen courses towards a Bachelor of Arts degree in Economics and that in 1996 he was studying Macro Economics at the South Pacific University.

In considering the submissions made by Mr Singh on the adjournment application, I gained a firm impression that he had no intention of making submissions in support of his case or to amplify the substance of his case but rather that he chose to rely on the contention that he should be given an adjournment.  In fact, after noting that Mr Singh had taken no steps to obtain production of the departmental files since 6 September 1998, I granted him a four and one quarter hour adjournment of the hearing to enable him to examine the departmental file, which was produced at the hearing by the respondent.  I was informed that the file comprised about fifty pages apart from the application of Mr Singh.  Mr Singh examined the files.  He had indicated that one of the reasons why he wanted to inspect the file was because certain documents were alleged by him to be in the departmental file.  When the hearing resumed before me Mr Singh made no reference to any documents, or any part of the file, and he decided not to raise before me any matter arising from his examination of the file.

In these circumstances, the course I adopted was to examine with care the reasons of the RRT in the light of the grounds raised by Mr Singh on the application and also the submissions made by the respondent Minister.  Mr Singh was invited to place before the Court every matter which he considered could assist him but he declined to make any detailed submissions.

RRT decision

After reference to the general background and legislation, the RRT reasons set out relevant case law and proceed to consider the claims and evidence of the applicant.  The gravamen of the applicant’s case at that hearing was that he claimed to be a person with a well-founded fear of being persecuted for reasons of race, membership of a particular social group or for his political opinion.

The racial ground is claimed to be based on a de facto relationship which he entered into in 1986.  This relationship generated hostility from the family of his de facto partner and the applicant says that her brothers and cousins have assaulted him about fifteen times because they object to the relationship between an Indian and a Fijian.  He said that his de facto had been assaulted four or five times, at one stage resulting in a miscarriage.  He said the last assault on him by a member of his de facto’s family was in December 1995.  He also said that seven months before he left Fiji, he lived in rented premises separated from his de facto and his child, who lived with his mother.  When asked whether he maintained contact with his de facto, he said that she wrote to him about three times a year.  The applicant told the RRT that he complained to the police, who took a lengthy statement from him but did nothing.  They said there was too little evidence and that he should try and reconcile the differences with his de facto’s family.  He claimed that two of his de facto’s brothers were in the police force and one brother was an officer in the military. 

The applicant said that his father had been approached in 1994 by relatives of his de facto and told that something might happen to the family if the applicant did not stay away from the de facto.  Nothing in fact happened to the family at any stage.  The applicant said that he had been detained in Fiji on several occasions.  On one occasion, he was detained because he stowed away on a boat.  On another occasion he was detained overnight when he went to complain about being assaulted by his de facto’s cousin.  In April 1992, he said he was detained for a month after he stowed away and was caught but was released under an amnesty given by the President.  He said that he feared return to Fiji because of his race and membership of a particular social group; that is Fiji-Indian males in a de facto relationship with a Fijian female.  In evidence, it appears that the applicant stated that his fear was not because of political opinion but rather a fear of his de facto’s family.  He also says that he was on a black list but did not know why.

The background facts, claims and evidence are fully set out in the reasons of the RRT.  However, I will only repeat these reasons to the extent to which they are relevant to this decision.

The RRT reasons

The RRT had serious reservations as to the credibility of the applicant’s claim and itemised a number of important contradictions in his statements and evidence.  In particular, for example, the applicant did not mention in his first application that he had been in a de facto relationship.  His application for a protection visa said that he thought the persons who might harm or mistreat him if he was returned were the “government controlled and racist enforcement, police departments and the general Taukei movement of Fiji …”.  He referred to a threat of bloodshed in relation to other matters and he also referred to himself in that application as a person who would be regarded as stirring up political impressions in the country.  Therefore, he said the government would not protect him.

The RRT allowed the applicant time after the hearing to lodge supporting material but no such material was forthcoming although the applicant contests this.  In addition, his evidence was considered to be inconsistent with country information contained in a number of specified respects.  The RRT did not accept the applicant’s claims as credible. Alternatively, the RRT found that even if the applicant was an ordinary member of a student political group, which he claimed he was, and was active from 1988 to 1992, he would not face a real chance of persecution on the ground of political opinion.  The RRT referred to the country intelligence from which it reached its conclusion in relation to this matter.

The RRT rejected the claim that the applicant was a member of a particular social group; namely, Fiji-Indian males who are in de facto relationships with ethnic Fijians.  It noted that the applicant only lived with his de facto sometimes and did not live with her in the seven months before he left Fiji, which the RRT said indicated that the relationship was a past relationship.  It found that the assaults only took place when he was living with the de facto and not when they were separated.  The RRT was not satisfied that if the applicant returned to Fiji he would face a risk of real harm from his de facto’s family and, therefore, did not proceed to consider whether or not he was a member of a particular social group.  The RRT compared the claim that the police did not protect the applicant from assaults against country information and accepted that public confidence in the police force was at its highest for many years.  It was also pointed out that the proportion of Fiji Indians in the police force was in the order of thirty-nine percent.  The RRT found that if the applicant returned to Fiji and suffered harm such as amounted to a criminal act, the authorities would protect him.

The RRT also did not accept his submission based on race.  After reviewing country reports it concluded that while there is some discrimination in Fiji against Fijian Indians on racial grounds, this was considered not to be sufficiently serious to amount to persecution.

The RRT was not satisfied that the applicant was a refugee under the Convention definition.

Basis of Review

Two grounds were raised in the application for review. The first was that procedures required by the Act to be observed in connection with the making of the decision were not observed because the Minister did not act according to substantial justice and the merits of the case: see s 420 and s 476(1)(a) of the Act. The second ground is that the decision involved an error of law, being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the RRT in relation to the expression “persecution” when applied to the assaults and threats that took place because of the applicant’s relationship with a woman of Fijian ethnicity: see s 476(1)(e) of the Act. In addition, it is said that the RRT failed to make findings as to whether the applicant was a member of a particular social group: see s 430(1)(c) of the Act.

I am not satisfied that any of these grounds have been made out. The RRT’s findings as to credibility, which were critical to the case of the applicant, were based on specified and important inconsistencies in his claims and the material and evidence before the RRT. I am persuaded that these findings were open to the decision-maker based as they were on observation of the witness and a careful examination of the applicant’s evidence and submissions. Accordingly, I am not satisfied that there has been any failure to comply with any procedures under s 420, or otherwise, which are required by the Act to be followed.

In relation to the question of “persecution”, the claim is that the RRT misconstrued the context of the assaults and threats because of the applicant’s relationship with a woman of Fijian ethnicity. In relation to this matter, it is to be noted that the RRT decision did not turn on the question of “persecution”. There was no finding that the assaults and threats by the family of his de facto did not or could not amount to “persecution”. Whether the evidence of assaults and threats is sufficient to amount to persecution is a question of fact and degree within the province of the decision-maker under the provisions of the Act. It is not a matter for this Court to determine. Given the conclusion that the applicant lacked credibility and the conclusion that the material was considered insufficient to amount to persecution, I can see no error in law or principle in the reasons for decision in this respect.

As to the contention that there was an error of law in failing to make findings as to whether the applicant was a member of a particular social group, there is no substance in this submission.  The question simply did not arise because the finding of the RRT was that the harassment by the family did not amount to persecution.

Conclusion

For the above reasons, I consider that decision of the RRT does not disclose any error of law or principle, which would warrant the grant of the application for review. The application is dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             24 December 1998

For the applicant:	Applicant  appeared in person
Counsel for the Respondent:	Mr R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	15 October 1998
Date of Judgment:	24 December 1998