Singh, M. v Minister for Immigration & Ethnic Affairs

[1995] FCA 432

C A T C H W O R D S

IMMIGRATION - Judicial review of decision of Refugee Review Tribunal - application by person of Sikh faith from the Punjab for refugee status - applicant's claim that he had been falsely charged with criminal offences - claim that charges were politically motivated - Tribunal considered applicant's claim speculative - no error of law.

Migration Act 1958 (Cth)

The Law of Refugee Status (1991)

U.S. State Department Country Reports on Human Rights Practices 1993 (India)   Handbook

Chan Yee Kin v The Minister for Immigration and Ethic Affairs (1989-1990) 169 CLR   379

Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (unreported: judgment delivered 28 November 1994)

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52     FCR 437

MANJIT SINGH   Applicant

- and -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

- and -

REFUGEE REVIEW TRIBUNAL   Respondents

O'Loughlin J.

Adelaide

9 June 1995

IN THE FEDERAL COURT OF AUSTRALIA )

    )

SOUTH AUSTRALIAN DISTRICT REGISTRY)    No. SG 88 of 1994

    )

GENERAL DIVISION                 )

B E T W E E N:

MANJIT SINGH

Applicant

- and -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

- and -

REFUGEE REVIEW TRIBUNAL

Respondents

MINUTES OF ORDER

JUDGE MAKING ORDER             :         O'LOUGHLIN J.

WHERE MADE   :         ADELAIDE

DATE OF ORDER                  :         9 JUNE 1995     

THE COURT ORDERS THAT:

The application be 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 )

    )

SOUTH AUSTRALIAN DISTRICT REGISTRY)    No. SG 88 of 1994

    )

GENERAL DIVISION                 )

B E T W E E N:

MANJIT SINGH

Applicant

- and -

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

- and -

REFUGEE REVIEW TRIBUNAL

Respondents

REASONS FOR JUDGMENT

Coram: O'Loughlin J.

Place: Adelaide

Date : 9 June 1995

The applicant seeks judicial review of a decision that he is not a refugee within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees  done at Geneva of 28 July 1951 ("the Convention") as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Protocol").  The relevant decision was made on 20 October 1994 by the Refugee Review Tribunal ("the Tribunal").

Article 1A(2) of the Convention, as amended by the Protocol, provides that the term "refugee" applies to 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; or who, not having a nationality and being outside the country of his former habitual residence... is unable or, owing to such fear, is unwilling to return to it."

The applicant, who is 51 years of age, is a member of the  Sikh faith from the district of Kapurthala in the Punjab region of India.  He arrived in Australia on 29 July 1993 as a visitor, stating, as the reason for entry, that he intended to visit his brother and his brother's family.  He was granted an entry permit that was valid until 29 October 1993.  The applicant is married and has three adult sons; they and the applicant's wife remained in India when he came to Australia.

The applicant lodged his application for refugee status with the Department of Immigration and Ethnic Affairs ("the Department") on 5 August 1993; he also applied for a Domestic Protection (Temporary) Entry Permit (DPTEP) and a Processing Entry Permit (PEP).  These applications having been refused by a delegate of the Minister for Immigration and Ethnic Affairs ("the Minister") the applicant unsuccessfully sought a review of those decisions through the Tribunal.  The applicant now contends before this court that the Tribunal erred in finding that he was not a refugee; he claims, as a consequence of the amendments to the Migration Act 1958 (Cth) ("the Act") that came into force on 1 September 1994, that he is now entitled to a protection visa: see s36 of the Act.

In his application for refugee status, the applicant claimed that Sikhs had not been able to practice their religion since 1984, when Indian troops entered the Golden Temple at Amritsar; he also claimed that there was no freedom of speech in
the Punjab.   To the extent to which those claims, and the applicant's evidence in support of them, may have been advanced as the bases for a "well-founded fear of being persecuted" for one or other of the Convention reasons, they were rejected by the Tribunal and were not the subject of any of the grounds of the present application.  It is not therefore necessary to refer to them further save as to the question of the applicant's credibility.  That leaves for consideration a review of the Tribunal's findings with respect to the circumstances surrounding the laying of certain criminal charges against the applicant and members of his family: were they politically motivated and what fate awaits the applicant if he returns to the Punjab?

The following facts, which I do not understand to be contentious, are taken in summary form from the reasons of the Tribunal.  From 1977 the applicant was the Namburda of his village; this is a hereditary position which will, in due course, pass to his eldest son.  The Namburda is responsible for the welfare of the villagers, the mediation of disputes and the collection of taxes.    Since 1990, the applicant has been a member of the Azad Party; that Party is politically opposed to the ruling Congress Party.  There were elections in the Punjab in February 1992 and from the preceding December the applicant had campaigned actively and publicly for the Azard Party candidate.  In its reasons, the Tribunal said:

"Following the elections and the Congress Party victory the applicant said that the local Congress Party candidate had taunted him and threatened that he would not leave him alone and would kill him."

It is difficult to determine from the structure of the Tribunal's reasons whether
this statement is a summary of an aspect of the applicant's evidence or whether it is a finding of fact. Subsequent passages in the reasons suggest the latter but I will return to this subject later in these reasons.

On 17 November 1992, some nine months after the elections, the applicant, his two brothers and his eldest son were arrested and taken into custody until bail was arranged about three weeks later.  The applicant said that he and the other members of his family had been charged with various offences as a result of false complaints that had been made by their neighbours.  The applicant tendered police reports and other documents which contained allegations that the applicant and his co-defendants had grown crops on their neighbours' property.  It was the case for the applicant that those charges were false and that the successful Congress Party candidate was responsible for having had the neighbours bring this false complaint.  As to this

the Tribunal said in its reasons:

"The Tribunal put to the applicant that it would have been more expedient, if someone wanted to have him detained by police, to use the TADA (Terrorism and Disruptive Activities Act) which operated in the Punjab and under which he could be held without trial.  The applicant did not respond to this directly but restated that he had false charges laid against him but with the charges the police had also offered him a way out through bribery."

The Tribunal concluded that the criminal charges that had been laid against the applicant, his brothers and his son had not been brought for the reasons claimed by the applicant.  The Tribunal was of the opinion that the charges  had arisen either as a result of genuine grievances or for reasons unconnected with the applicant's
political background.  That finding was, in my opinion, open to the Tribunal on the evidence that was before it.

The Tribunal, in its reasons, pointed to a variety of factors that had the combined force of justifying its decision: for example, the applicant had not been a political candidate - he had only been involved as a helper for about two months preceding the elections; the laying of the charges occurred some nine months after the elections; the applicant's relatives had been jointly charged with him; and the most serious charge had been brought against his son.  These are matters to which the Tribunal was entitled to refer in coming to its decision. It is also significant that it was not part of the applicant's case that his brothers and his son had engaged in any form of political activity.  Even if the applicant was subjected, shortly after the election, to the threats against his life, the substantial issue, and the one upon which the applicant relied was the bringing of the criminal charges against him and his family. It was his case that these charges were false and that they amount to persecution because of his political opinion.  In his application the applicant advanced three propositions in support of his claim that the Tribunal had erred in law; first, he claimed that the Tribunal erred in holding that the criminal charges had not been laid because of his political opinion; secondly, he claimed that the Tribunal should have held that the applicant had a genuine fear of persecution because of his political opinion and lastly he said that the Tribunal erred in holding that the applicant " had access for protection through appropriate  bodies in Pubjab".

It is not sufficient that the applicant have a genuine belief that the criminal charges were politically motivated.  Assuming that the threats had been made, assuming, as the applicant claimed, that he and his relatives were beaten by their neighbours (who were said to be Congress Party supporters), and by the police, the fear of persecution must be based in reality.  The Tribunal noted that the term "well-founded fear" had been discussed by members of the High Court in Chan Yee Kin v The Minister for Immigration and Ethic Affairs (1989-1990) 169 CLR 379 and that the High Court has concluded that the term had both a subjective and objective element. As to the latter, the finding of the Tribunal in the instant case was that the claim that the criminal charges were politically motivated was "at best speculative on the part of the applicant".  In my opinion, on the evidence that was available to the Tribunal, it was justified in coming to that conclusion.

Mr Patel, counsel for the applicant, submitted that the Tribunal had approached its task in an impermissible manner.  He maintained that the first exercise to be undertaken by the Tribunal was a determination of the surrounding circumstances - the "political climate" - as it applied to the applicant at the time when he was allegedly persecuted and as it was likely to apply should he return to his country of origin.  In support of this proposition, he relied upon a passage from Prof. Hathaway's The Law of Refugee Status (1991) at 80.

"The appropriate starting point for an analysis of objective conditions within the refugee claimant's state of origin is an examination of that country's general human rights record.  Because the insufficiency of state protection is the sine qua non for recognition as a refugee, persons who flee countries that are known to commit or acquiesce in persecutory behavior
should benefit from a rebuttable presumption that they have a genuine need for protection."

Mr Patel also referred to the Handbook on Procedures and Criteria for Determining Refugee Status re-edited (1992), published by the Office of the United Nations High Commissioner for Refugees.  In discussing the onus of proof that an applicant for refugee status must meet, the following passage appears at p47, par196:

"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.  Even 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 to the contrary, be given the benefit of the doubt."

Later in pars203 and 204 the Handbook referred to those occasions where it may be "necessary to give the applicant the benefit of the doubt" where his statements are "coherent and plausible" and do not "run counter to generally known facts".

In order to lay out a foundation for his submission that the Tribunal had fallen into error in failing to have regard to all relevant circumstances as they applied to the applicant, Mr Patel sought leave to file an affidavit exhibiting numerous newspaper clippings and extracts from reports (such as reports from Amnesty International) all of which pointed to serious civil and political unrest in the Punjab over recent years.  It was not suggested that this material had been before the Tribunal as constituted for the purpose of considering this application but Mr Patel argued a proposition akin to constructive knowledge by explaining that it was material that had been before another differently constituted Tribunal.  Ms Maharaj, counsel for the respondent, did not object to me receiving the affidavit and its annexures but she submitted, and in my opinion correctly so, that the applicant could make no use of such material.  A similar argument had been considered and rejected by a Full Court of this court in Li Shi Ping v Minister for Immigration, Local Government and Ethnic Affairs (unreported: judgment delivered 28 November 1994).  In that case the applicants complained that the review delegate had considered one but not all cables from the Department of Foreign Affairs and Trade; it was submitted that the cables that had not been considered supported the applicants' claims to recognition as refugees.  In rejecting this complaint, Carr J, with whose reasons Sheppard and Gummow JJ agreed said at p19:

"His Honour held that there was no obligation on the respondent to consider every document in the Department's possession.  The decision of what material from the range of relevant material was to be taken into account was generally one for the decision-maker alone and it was only when material which must be taken into account is ignored that the decision was reviewable.  His Honour held that Mr Barnsley was entitled to refer to the cable dated 23 June 1992 without being in any way bound to refer to the four earlier cables and those cables were not matters which Mr Barnsley was required to take into account.  His Honour relied upon the following passage in the reasons for judgment of Deane J. in Sean Investments Pty Ltd v MacKellar (1981) 38 ALR 363 at p375:

'In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards.  The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take
into account for there to be a valid exercise of the power to decide'."

Having Regard to the views of the Full Court, I decline to have regard to the contents of the newspaper clippings and the various reports.

I return to the applicant's grounds for review; the decision that the criminal charges had not been  laid because of political opinion was a factual conclusion that was open to the Tribunal.  It involved no error of law and this court cannot interfere.  As to the second ground, it is inappropriate to say that the Tribunal should have held that the applicant had a genuine fear of persecution.  The task of the Tribunal was to examine whether the applicant had a well-founded fear of persecution.  A reference to a genuine fear suggests that it would only be necessary to consider the subjective element and it is possible that this applicant did have such a fear.  But the Tribunal went the extra step, as it was required to do, and came to the conclusion that, on an objective standard, the fear was not well founded.

Finally, there was the question of the applicant's likely future if he was returned to India and to the Punjab.  As to this the Tribunal relied upon an extract from a report  from the U.S. State Department Country Reports on Human Rights Practices 1993 (India):

"India has an independent judiciary with strong constitutional safeguards. An October Supreme Court decision gave the Chief Justice of India - in consultation with his colleagues - a decisive voice in selecting judicial candidates. Under the Constitution, judges are appointed by the President and may serve up to age 65 in the Supreme Court and age 62 in the state
high courts.  India's legal procedures generally assure a fair trial when they function normally, but the process can be drawn out an inaccessible to the poor.  Defendants have the right to choose counsel from an Indian Bar that is fully independent of the Government.  There are effective channels for appeal at most levels of the judicial system.  This is not true for cases tried under the TADA which can be appeared only to the Supreme Court.  Since many TADA detainees lack the resources to gain access to the Supreme Court, the act effectively limits appeal.

The Indian Criminal Procedure Code provides for an open trial in most cases but allows exceptions in proceedings involving official secrets, trials in which statements prejudicial to the safety of the State might be made, or under provisions of special security legislation such as the TADA.  Defendants are presumed innocent until proven guilty except in certain cases (see below).  There are effective channels for appeal at all levels of the judicial system, although there is some limitation on appeals under the special security laws.  Sentences must be announced in public."  (Emphasis added)

The Tribunal concluded that it was prepared to accept the contents of this report as evidence of the prevailing conditions in India in preference to the applicant's opinion that the Judiciary were controlled by the ruling Congress Party.  The Tribunal's conclusion, with which I agree, was:

"The Tribunal finds that, even in the event that the charges are false, the Applicant has access to a fair and just judicial system with appellate courts.  He is represented by a legal representative and is thus accorded the same right to protection through the Indian judicial system of any other citizen in that country."

In addition to the Tribunals' finding on this subject, the applicant might well have had to face the additional hurdle of overcoming the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. Although the Tribunal did not address the subject, directly, Black CJ noted at 440 in Randhawa's case that the learned trial judge had correctly pointed out:

"... the issue in this case arose out of the fact that the country of which Mr Randhawa is a citizen is not the Punjab but India and the question was whether Mr Randhawa was, owing to a well-founded fear of persecution, unwilling to avail himself of the protection of India."

In my opinion, this application must be dismissed with costs.

I certify that this and the      preceding pages are a true copy of the Reasons for Judgment of Justice O'Loughlin.

Associate

Dated:

Counsel for the Applicant            :         Mr G Patel

Solicitors for the Applicant          :         Patel & Co

Counsel for the Respondents        :         Ms S Maharaj

Solicitors for the Respondents      :         Australian Government Solicitor.

Hearing Date   :         16 May 1995