Singh, Ranjit v Minister for Immigration and Multicultural Affairs

[1998] FCA 619

FEDERAL COURT OF AUSTRALIA

IMMIGRATION LAW – Migration Act 1958 (Cth) - review of decision of Refugee Review Tribunal – applicant held to have no well-founded fear of persecution – Tribunal went on to consider issue of internal relocation –– whether reasons of Tribunal clear – whether Tribunal erred in placing weight on findings about past events.

Migration Act 1958 (Cth), ss 475, 476

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

R v Immigration Appeal Tribunal;  Ex Parte Jonah [1985] Imm AR 7, cited

Politis v Commissioner of Taxation (1988) 16 ALD 707, applied

Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402, applied

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited

Chahal v The United Kingdom (1996) 23 EHRR 413, considered

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, cited

Chan Yee Kin vMinister for Immigration and Ethnic Affairs (1989) 169 CLR 379, cited

RANJIT SINGH v

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
NG 29 of 1998

BRANSON J
SYDNEY
9 JUNE 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 29  of   1998

BETWEEN:	RANJIT SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		BRANSON J
DATE OF ORDER:		9 JUNE 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal be affirmed.

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 29 of 1998

BETWEEN:	RANJIT SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	BRANSON J
DATE:	9 JUNE 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 12 December 1997.   By that decision the Tribunal affirmed a decision of a delegate of the respondent that the applicant does not meet the criterion for the grant to him of a protection visa.  Such criterion is that the applicant is a person to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (“the Refugees Convention”).  

Australia has protection obligations to the applicant under the Refugees Convention if he is a person who:

“… owing to a 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, unwilling to avail himself of the protection of that country; … .”

BACKGROUND FACTS

The applicant, who is approximately 27 years old, claimed to have left India in 1995 because he had been persecuted for reasons of his Sikh ethnicity and membership of the Sikh Students Federation.

The applicant claimed to have joined the Sikh Students Federation (“the SSF”) in 1989.  He said that his job was to visit six villages in his area and speak to people about independent Khalistan.   The Tribunal was not satisfied that the applicant was ever a worker for the SSF or another organ of the Khalistan Movement, although it found that he might well have supported it (presumably the Khalistan Movement) in a more general fashion.

The applicant claimed to have been arrested by police on two occasions:  first, on 15 October 1991 at a bus stop in Chandigarh and secondly, in about March 1995.  On the second occasion, as he claimed, he presented himself at a police station after the arrest of his father on the basis that his father had been told that he would not be released until his son returned.  The applicant claimed to have been held for twelve days following the first arrest and to have been held for approximately five months on the second occasion.  The story told to the Tribunal about his treatment following his arrests was not quite the same as that told by him at a Departmental interview and in his original application for a protection visa.  Before the Tribunal the applicant said that the police released him approximately ten days after his first arrest, and that following the second arrest, the police blindfolded him and took him to various places of detention and kept him in isolation, with the result that he was unsure as to where he had been detained.

The Tribunal accepted that the applicant was picked up at a bus stop in Chandigarh in 1991 although it made no finding as to what happened thereafter.  The Tribunal was apparently not convinced that the second arrest occurred.

The applicant told the Department that when he was released after his second arrest, he went to live with an aunt in Uttar Pradesh.  He said that in June 1993, the police came to the house looking for him and that he immediately left for Delhi.  Subsequently he went to Bihar where he worked as a driver in his aunt’s trucking business.  He was not visited by police in Bihar although he remained anxious that he might be.  The Tribunal appears to have accepted the applicant’s evidence concerning the time spent by him in Uttar Pradesh, Delhi and Bihar, but not his evidence of harassment or questioning of his family about his whereabouts.

The applicant had the passport, which he had obtained in 1989 without difficulty, renewed in 1994.  He claimed to have obtained the renewal through an agent and to have paid a bribe.

REASONS OF THE TRIBUNAL

The Tribunal concluded that the applicant was not a person wanted by the police in either an official or unofficial sense.  It assessed the current situation in the Punjab, and in particular, considered material from “government and from international sources” which suggested that a considerable degree of stability has been resumed in the Punjab.  The Tribunal observed:

“While the Applicant was not convinced that such observed changes were real or permanent, I am satisfied that there is sound evidence that the Punjab crisis is past and that [the] Applicant could rejoin other members of his family in the Punjab without risk of persecution.”

The Tribunal went on:

“However, it must be held to be reasonable that he [ie. the applicant] would continue to hold a fear that there could be a resumption of the violence which rocked the province in the 1980s.  That raises the question of whether he could live safely in another part of the very large country of India.”

On the issue of possible internal relocation, the Tribunal rightly noted that the critical question was that of whether it was reasonable in all of the circumstances to expect the applicant to seek refuge in another part of India.  It referred to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. The Tribunal observed that the applicant had relatives in Uttar Pradesh, Delhi and Bihar, and that the applicant had lived in those places for periods of time. The Tribunal then said:

“While noting that he was able to find a job with a relative in Bihar, I accept that he is anxious about finding a job and that his Punjabi link could make it more difficult for him.  I do not find this chance of employment problems to be at the level of persecution.

On 22 May 1996, the Tribunal sought information from Professor Robin Jeffrey of Latrobe University on the safety of Sikhs re-locating safely within India.   He held the opinion that:

“… Sikhs are well-represented in India outside the Punjab, particularly in big cities such as Bombay and Calcutta and in areas such as Uttar Pradesh and even in the south of India.  The 1991 census figures suggested that approximately one fifth to one quarter of Sikhs in India lived outside the Punjab.  Sikh men are brought up with the idea of travelling and relocating to seek better lives and, in most Sikh families, there are members in diverse locations … it is unlikely that Sikhs would experience difficulty in practising their religion outside the Punjab … there is no evidence of discrimination against Sikhs in employment generally.”

The Tribunal concluded:

“There is no doubt that India is a somewhat turbulent state and that from 1984 until the early 1990s the level of violence in the Punjab, by both militants and the authorities, was unacceptable on any scale of human rights.   I accept that the Applicant grew up in such an environment and that he holds a genuine subjective fear of further problems in the future.  However, on the evidence before me, I do not find his fear to be well-founded.”

The Tribunal was thus not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention.  It found that the applicant does not satisfy the criterion for the grant of a protection visa.

CONSIDERATION

The case for the applicant before the Court concentrated particularly on the Tribunal’s consideration of the issue of internal relocation.  Mr Reilly, counsel for the applicant, pointed out accurately that, although the Tribunal observed that the crucial issue on the question of internal relocation was whether, as a practical matter, those parts of India where the applicant would be able to avail himself of the protection of his country were reasonably accessible to him, it made no express finding on this issue.

However, after summarising the circumstances which made it unreasonable in the case of R v Immigration Appeal Tribunal;  Ex parte Jonah [1985] Imm AR 7 to expect Mr Jonah to avoid persecution by living in a remote village in Ghana, the Tribunal said:

“No such expectation is to be had of the person before me in this decision.  He has relatives in Uttar Pradesh, Delhi and Bihar, and the Applicant also lived in these places for periods of time.  While noting that he was able to find a job with a relative in Bihar, I accept that he is anxious about finding a job and that his Punjabi link could make it more difficult for him.  I do not find this chance of employment problems to be at the level of persecution.”

It seems to me that the opening sentence of the above passage is sensibly to be understood as a finding that relocation within India is not an unreasonable expectation of the applicant if the issue of employment is left to one side.  On the issue of employment, the Tribunal speaks in the above passage, not in terms of whether the chance of employment problems would make an expectation that the applicant relocate within India an unreasonable expectation, but rather in terms of “persecution”.  Whilst a finding that, upon internal relocation, employment problems would be at the level of persecution would lead necessarily to the conclusion that an expectation of such relocation would not be reasonable, the reverse is not logically true.  Circumstances not strictly amounting to persecution might nonetheless make relocation as a practical matter not reasonably accessible to a person. 

However, it is necessary to read the reasons for decision of the Tribunal “sensibly and in a balanced way” (per Lockhart J in Politis v Commissioner of Taxation (1988) 16 ALD 707 at 708, cited with approval by Sackville J, with whom Beazley J agreed, in Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414). As Brennan CJ, Toohey, McHugh and Gummow JJ said 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”.

The Tribunal, immediately after assessing the applicant’s possible employment problems in terms of “persecution”, referred with apparent approval to the opinions of  Professor Jeffrey that “approximately one fifth to one quarter of Sikhs in India lived outside the Punjab” and that “there is no evidence of discrimination against Sikhs in employment generally”.  It seems to me that, if its reasons are read in a sensible way, the Tribunal must be taken to have found that the chance that the applicant might experience employment problems if he relocated within India was not sufficiently high to support a finding that, in a practical sense, such relocation was not reasonably accessible to him.

The applicant also contended that the reasons behind the Tribunal’s conclusion that the applicant’s fear of persecution for a Convention reason was not well-founded were unclear.  Mr Reilly drew attention to the difficulties attending the passage from the Tribunal’s reasons for decision which follows its reference to materials recording observations of resumed stability in the Punjab:

“While the Applicant was not convinced that such observed changes were real or permanent, I am satisfied that there is sound evidence that the Punjab crisis is past and that [the] Applicant could rejoin other members of his family in the Punjab without risk of persecution. …  However, it must be held to be reasonable that he would continue to hold a fear that there could be a resumption of the violence which rocked the province in the 1980s.  That raises the question of whether he could live safely in another part of the very large country of India.”

The first difficulty with the above passage is whether the Tribunal’s reference to “sound evidence that the Punjabi crisis is past” is to be understood as a finding based on such evidence that the crisis is passed.  The juxtaposition of this reference to the statement that “the Applicant was not convinced that such observed changes were real or permanent”, suggests that, in contrast with the applicant, the Tribunal was convinced by the “sound evidence”.  However, as Mr Reilly pointed out, if the Tribunal was so convinced, it is not clear why it went on to find that it was reasonable for the applicant to hold a fear of future violence and to consider internal relocation.  The Tribunal does not itself suggest that its findings as to relocation within India provided an alternative basis (ie. alternative to the finding that the applicant’s fear of persecution was not soundly based) for its conclusion that the applicant does not satisfy the criterion for the grant of a protection visa.

Nonetheless, a reading of the above passage as a whole, in my view, leads to the conclusion that the Tribunal was satisfied, on the basis of the “sound evidence” to which it referred, that “the Punjabi crisis is past and that [the] Applicant could rejoin other members of his family in the Punjab without risk of persecution”.   That is, that the Tribunal was satisfied that the applicant’s genuine subjective fear of being persecuted was not a well-founded fear.  Once so satisfied, the Tribunal was not required to go on to consider the issue of possible internal relocation.   It had already determined that the applicant was not a person to whom Australia has protection obligations under the Refugees Convention.

Contrary to the submissions of the applicant, I do not think that it is impossible to understand from the reasons of the Tribunal why it concluded that the applicant’s fear was not well-founded.   The fear that the applicant articulated, and which the Tribunal found that he genuinely holds, is a fear of police persecution.   The Tribunal’s reasons make clear that it did not accept that the applicant is wanted by the police in India either officially or unofficially.  That is, the Tribunal found, in effect, that the applicant was no more likely to suffer persecution at the hands of the Indian police, including the Punjabi police, than any other Sikh youth.   As to that likelihood, the Tribunal found that the current situation in the Punjab is such that a considerable degree of stability has been restored.  It noted the resurgence of the moderate Sikh political party, the Akali Dal, and also the condemnation by the Supreme Court of the abuses in the Punjab of the early 1990s.  A logical basis for the Tribunal’s finding thus can be found.   It was not suggested, nor, in my view, could it have been, that there was no evidence or other material to justify the Tribunal funding that the applicant’s fear is not well-founded.   

It is not the case as the applicant contended, that the Tribunal simply reasoned that as it found that the applicant had not been persecuted in the past, he would not be in the future.  To the extent that this submission implies a criticism of the Tribunal for making findings as to what happened to the applicant in India, such criticism is unwarranted.   The High Court pointed out in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 578, that whilst past events are not a certain guide to the future, they often provide a reliable basis for determining the probability of their recurrence in the future. In Chan Yee Kin vMinister for Immigration and Ethnic Affairs (1989) 169 CLR 379 each of Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ expressed the view that, in assessing the chance that a person will be persecuted if returned to his or her country of nationality, the starting point will logically be the circumstances as they existed at the time of departure which grounded the person’s fear of persecution (Mason CJ at 387, Dawson J at 399, Toohey J at 406, Gaudron J at 415 and McHugh J at 433). The Tribunal was not in error in placing weight on its finding that the applicant had not been persecuted in the past and was not wanted by the authorities.

Mr Reilly referred to the decision of the European Court of Human Rights in Chahal v The United Kingdom (1996) 23 EHRR 413. That case was concerned with whether a high profile Sikh activist would be at risk of torture, inhumane or degrading treatment or punishment if deported to India in 1996. The European Court of Human Rights concluded on the evidence before it that he would be. I do not accept that the Tribunal was obliged to identify and place weight on this decision. However, it is of interest to note that nothing in the materials referred to in the reasons for decision of the European Court of Human Rights suggests that an individual of the kind that the Tribunal found the applicant to be, would be at the same risk as Mr Chahal, whether in 1996 or now.

The decision of the Tribunal will be affirmed.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Associate:

Dated:             

Counsel for the Applicant:	T Reilly
Solicitor for the Applicant:	Ramrahka Jenkins
Counsel for the Respondent:	G T Johnson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 June 1998
Date of Judgment:	9 June 1998