Singh, Gurmukh v Minister for Immigration and Multicultural Affairs

[1998] FCA 461

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG1161 of 1997

BETWEEN:	GURMUKH SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	16 APRIL 1998
PLACE:	SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J:  This is an application for review of a decision by the Refugee Review Tribunal, given on 2 December 1997, that the applicant, Gurmukh Singh, is not a refugee and is not entitled to a protection visa under the Migration Act 1958. The application for review was filed on 30 December 1997. It sets out numerous grounds, many of which have not been pressed.

The matter came before me for directions on 11 February 1998.  On that occasion the applicant was represented by Mr Ram Ravi Singh Khalsa, a registered migration agent.  I gave leave to Mr Khalsa to appear on behalf of Mr Singh provided that an authority in his favour was filed and served not later than the next day.  This was done.  The authority, dated 11 February, authorises Mr Khalsa to assist the applicant in his application for review by, amongst other things; preparing or helping to prepare documents and other papers, advising or seeking advice about the application, preparing or helping to prepare the proceedings before a court or review authority in relation to the application and representing, or assisting to represent, the applicant in proceedings before a court or a review authority in relation to the application.  The authority goes on to authorise the Court to deal with Mr Khalsa as if dealing with the applicant personally in relation to any proceedings with regard to the applicant’s migration matter.

On 11 February I directed that, within one week, the departmental file be made available for inspection.  I understand this was done.  I further directed that any affidavits in support of the application were to be filed and served by 11 March 1998, and that any affidavits of the respondent were to be filed and served by 25 March 1998.  I fixed the matter for hearing today, that is to say, 16 April 1998 at 10.15am.

At the request of Mr Khalsa, the matter was listed last week, on 9 April.  Mr Khalsa sought an adjournment of the hearing.  In support of that application, he read an affidavit sworn by himself on 6 April in which he mentioned that Mr Singh had made an application for legal aid which had not yet been resolved.  Apparently the application had been made in February, and there was no indication as to when a decision would be made about it.  I pointed out to Mr Khalsa that the hearing had been fixed two months ago, and I did not think it appropriate to postpone the matter because of the failure of the Legal Aid Commission to reach a decision.  In taking that attitude, I took into account the fact that Mr  Singh, through Mr Khalsa, had already had advice from counsel as to the merit of the application.  I was aware of this because Mr Khalsa annexed to his affidavit a copy of an opinion by Mr Michael Lawler, a barrister who frequently appears in migration matters in this Court.  Mr Lawler canvassed the arguments available to Mr Singh.  In the light of the decision of the Tribunal, which he had apparently read, he was of the opinion that an application for review would not be successful. 

On 9 April Mr Khalsa mentioned he had contacted the Law Society to see whether somebody could be made available through the pro bono scheme.  I encouraged him to pursue this avenue if he wished.  I gather from an affidavit put before me today that Mr Khalsa did that, but he was unsuccessful in obtaining an answer, perhaps because of the Easter break.  It is not clear when he recontacted the Law Society.

The matter proceeded today without any further application for an adjournment, but I mention the history of the matter because of the circumstance that Mr Khalsa referred on a number of occasions to events that occurred at the hearing before the Tribunal.  The tape of the Tribunal hearing has not been transcribed and there is no evidence before me as to what passed at the Tribunal hearing.  If I felt Mr Khalsa had been taken by surprise in relation to this position, I would have been inclined to have had the tape transcribed before disposing of the matter.  However, I do not think Mr Khalsa has been taken by surprise.  He was aware of the necessity of putting all relevant material before the Court, but he chose not to adduce evidence as to what transpired at the Tribunal hearing.  His client, the applicant, took no steps to ensure relevant material was put before the Court and has not even attended Court today.  Moreover, and more fundamentally, having heard what is said to have occurred, and not occurred, before the Tribunal, I cannot imagine evidence to that effect would affect the outcome of the application for review.  In other words, I have considered the matter on the basis of Mr Khalsa’s allegations as to what passed at the Tribunal hearing, even though this material is not properly before me and the allegations are hearsay, Mr Khalsa not having been present at the Tribunal hearing.

As I followed the submissions put by Mr Khalsa, which were very thorough and put in a manner calculated to do the best he could for Mr Singh, four points were made.

First, it was said the Tribunal member who heard the case, Mr Paul White, gave an insufficient explanation to Mr Singh at the hearing as to the definition of a refugee.  Mr Khalsa claimed that Mr White said to Mr Singh that it was insufficient for him to have a fear of persecution; there needed to be some basis for that fear in fact, and the fear must be for a Convention reason. It seems to me such an explanation is not inadequate.  It crystallises the elements of the fear as outlined in the authorities.  However Mr Khalsa said Mr Singh was not made aware of the fact that the critical question was what might happen in the future, rather than what had taken place in the past.

I find it extremely difficult to think Mr Singh was under any illusions about the relevance of the future. I note that, at pages 4 and 5 of the decision of the Tribunal, the following appears:

“In his written submissions to the Tribunal, amongst other things he [Gurmukh Singh] stated  "it is not possible for me to relocate in India because of my religion and outlook, especially for PUNJABI who never cut there [sic] hair and beard.  I will easily be recognised by the police and the people as they have various sources of obtaining information. ... I am confident I will be killed or seriously harmed upon my return to India because I did not obey the orders of the police and militants as well.”

It is obvious that the submission relates to the future, and in particular what might happen to Mr Singh if he is returned to India.  It seems to me clear he understood this was the cardinal point at issue, not what had taken place in the past; although of course the past was important as providing some indication as to the possibilities for the future.

Mr Khalsa’s second point is a minor one.  At page 13 of his decision Mr White, the Tribunal member, quotes a 1992 Canadian document concerning the position of Sikhs in India but outside the Punjab.  In summarising the report Mr White says:

“It also points out that legislation such as TADA applies throughout India (now no longer active) and cautions that young male Sikh students who publicly oppose the Government or support the formation of an independent Sikh homeland may be at risk anywhere in India.”

The acronym “TADA”, I understand, refers to a federal act called the Terrorist and Disruptive Activities Act.  Mr Khalsa says it was inaccurate for Mr White to say this legislation is no longer active.  He is of the view the Act continues to apply.  This is as may be; I have not investigated the matter because it seems to me quite immaterial.  The thrust of the case made by Mr Singh was not that he would be susceptible to some action pursuant to this federal legislation, but that he was likely to be illegally persecuted by the Punjabi authorities and, particularly, the police.

The third matter to which specific reference was made arises out of a letter that was supplied to the Tribunal on the letterhead of an organisation called Babar Khalsa International Australia.  This organisation discloses a postal address at Griffith, New South Wales and shows, as a person who is the President, priest and a Justice of the Peace, one Bhai Parsmotam Singh Khalsa.  The letter is under the hand of that person and states in part:

“I have known Gurmukh Singh for the past year.  I was introduced to him through the church (our temple) and through this he intended (sic - attended) a few of our Babar Khalsa meetings,  I have no reservation upholding him as a devotee member of our organisation he has been instrumental in our fight for the humanitarian treatment of the sikhs in, and outside of India.”

The letter goes on to refer to information derived "through our investigation" as to Mr Singh's activities in India.  The letter is dated 26 August 1997.  It is obvious from the letter itself that Mr Parsmotam first met Mr Singh in Australia, apparently about the middle of 1996.  In the quoted passage he speaks of his personal knowledge of Mr Singh's activities, but these were apparently limited to attendance at a few Babar Khalsa meetings.  Everything else is information learnt from other people, and perhaps from Mr Singh himself, about his activities in India.

The complaint made by Mr Khalsa on behalf of the applicant is that Mr White did not investigate further the activities of Mr Singh in relation to Babar Khalsa.  In dealing with the matter, Mr White said at page 21 of his decision:

“The Tribunal does not accept the claim made in correspondence from the Babar Khalsa International Australia that he was an active member of Babar Khalsa as there is insufficient evidence to justify this finding and the Applicant himself has not pursued this claim by providing details of his activities with the Babar Khalsa.”

Having regard to the nature of the letter, there is no error revealed in this statement.  The emphasis I think is on the words, “active member of Babar Khalsa”.  That is not to deny that Mr Singh may have attended a few Babar Khalsa meetings.  I think the point being made by Mr White is that it was not suggested he was a leader of the Babar Khalsa group or was in any way actively involved, except in attendance at some meetings.

As to the failure to pursue the question of activities in India, it seems to me this is what Mr White did investigate.  He asked the applicant to detail his activities in India and he received his own account of them.  It should also be mentioned that this had been done at a departmental level even earlier. There was no particular point in Mr White asking these same questions again by an investigation of what Mr Parsmotam had been told by somebody about Mr Singh's activities in India.

Finally, the submission is put that it was an error for Mr White to assume there was no chance of persecution of Mr Singh unless he had a history of terrorist activity or an established profile as a human rights advocate.  It is fair to say that Mr White did reach that conclusion.

In support of the claim this was erroneous, Mr Khalsa drew attention to material before the Tribunal which included extracts from the United States Congressional Record in which various members of the House of Representatives spoke of events in India.  Some of these speeches included extracts from Indian newspapers of relatively recent date, that is to say 1997, in which there were reports of people being murdered.

There is no doubt, if these newspaper reports are correct, that instances of violence continue.  There is also no doubt there has been bloody violence in Punjab for many years, until at least relatively recent times.  The question is whether there is material in the 1997 newspaper reports which ought fairly have caused Mr White to go beyond and behind the comprehensive material he had received from many sources, including the Department of Foreign Affairs and Trade and the proceedings of an expert panel which, in January 1997 reviewed the position in the Punjab.

I do not think these newspaper reports did fairly require that investigation.  It is true, as I have said, that they indicate people were still being killed but it is not at all clear this was because they were members of any particular group in Punjabi society.  When I discussed this with Mr Khalsa I pointed out to him the evidence indicated more than half of the population of the Punjab were Sikhs.  He accepted that a person was not a member of a relevant group simply because he or she was a Sikh in the Punjab; the relevant group was the group claimed by the present applicant, namely a person who had in the past been politically active, in the applicant's case as a member of the Sikh Student Federation. 

The evidence before Mr White, and accepted by him, strongly supported the conclusion that persecution of people, on the basis that they had been politically active in the cause of Punjabi independence, was now virtually non-existent; it was limited to people with a high profile, as terrorists or human rights activists.  It was not suggested Mr Singh fell into either of these categories.  Mr Khalsa made it clear to me he does not accept this view of the situation in the Punjab.  I accept his sincerity in saying that, but the conclusion is one of fact; it was a matter for the Tribunal, not for this Court. 

I do not think any legal error appears on the face of the Tribunal decision.  On the contrary, and leaving aside findings of fact which are not for me, the decision reflects a conscientious and comprehensive consideration of the case.  It sets out the legal principles and applies them in an exemplary way.  Nor do I see any basis upon which it can fairly be said there has been a denial of substantial justice from a procedural point of view.

I have mentioned the lack of transcript; but even if I accept Mr Khalsa's account of what transpired, I am unable to see that Mr Sikh was in any way misled or disadvantaged.  Once again, on the contrary, he seems to have been clearly told the nature of the issues and was asked questions dealing with his past activities and his apprehensions for the future. 

It seems to me Mr Khalsa has put before the Court everything that can be said in favour of the application but he fails to bring the case within ss 420 and 476 of the Migration Act. Accordingly, the application must be dismissed.

[There was a discussion on costs.]

The order that I make is the application is dismissed with costs.

I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox

Associate:

Dated:            16 April 1998

Migration Agent for the Applicant:	Ram Ravi Singh Khalsa
Solicitor for the Respondent:	Greg Peek of the Australian Government Solicitor