Singh, Rashpal v Minister for Immigration and Multicultural Affairs

[1998] FCA 1394

FEDERAL COURT OF AUSTRALIA

MIGRATION – application for review of decision of Refugee Review Tribunal – applicant citizen of India – whether Tribunal failed to make findings of fact – whether Tribunal’s reliance on findings on credibility resulted in a failure to determine whether the applicant was a refugee.

Migration Act 1958 (Cth) ss 420, 430, 476

RASHPAL SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 488 of 1998

MOORE J
4 NOVEMBER 1998

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 488  of   1998

BETWEEN:	RASHPAL SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		MOORE J
DATE OF ORDER:		4 NOVEMBER 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent’s 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 488 of 1998

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

JUDGE:	MOORE J
DATE:	4 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

This is an application for judicial review by Rashpal Singh (“the applicant”) of a decision of the Refugee Review Tribunal (“the Tribunal”) of 24 April 1998.  The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant a protection visa.  A criterion for the grant of such a visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).

The applicant is a citizen of India who arrived in Australia on 24 September 1995.  On 12 January 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  On 17 April 1997 a delegate of the Minister refused the application.  Both the delegate and the Tribunal considered the circumstances of the applicant and whether the applicant was a refugee.  Art 1A(2) of the Convention contains, for present purposes, the definition of refugee.  It provides:

… the term “refugee” shall apply to any person who;

…

(2)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, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.

When making his application for a protection visa, the applicant filled out a form which required him to answer certain questions.  The form was plainly intended to elicit from an applicant the grounds upon which the application was being made and was structured in a way that elicited information relevant to a consideration of the definition of refugee as it might apply to an applicant.  Question 36 in the form was:

Why did you leave that country?

The answer provided by the applicant was in the following terms:

I am the son of a religious preacher in India in our village of Daroli Khurd in Jalandhar.

The state of Punjab is in a state of turmoil, and there are Sikh fundamentalists who are seeking a separate independent country from India.

We rely on religious preaching for our livelihood, and I assisted my father in his duties.

Our livelihood depends on donations from the faithful.

Neither my father nor I supported the creation of an independent state.

This did not please the terrorists militants who began a campaign against us, forcing me and my father to give speeches asking for a separate state.

The authorities then began to harass us as the Indian Government is trying to suppress the Independence movement.  This led to my arrests by the police, being detained at the police station, with torture, bad food, detention and continuous interrogation.

On the other hand, the terrorists militants then began to suspect us and we were threatened by the terrorists who have nothing to lose in terrorising people.

Thus I found myself hounded by both sides so I left the country.

The next question in the form was:

What do you fear may happen to you if you go back to that country?

The applicant’s response to this question was:

I fear that I would be subjected to further ill treatment not only at the hands of the terrorists but also at the hand of the Indian authorities.

There then followed a question:

Who do you think may harm/mistreat you if you go back?

The applicant answered this question:

The terrorists/militants, and the Indian police.

The next question was:

Why do you think they will harm/mistreat you if you go back?

The applicant answered this question by referring to his answer to question 36.  The last relevant question was:

Do you think the authorities of that country can and will protect you if you go back?  If not, why not?

The applicant answered this question in the following way:

I do not believe that the Indian authorities can protect anyone.  There is a breakdown of law and order in Punjab and day to day life is very difficult.

Recently the Chief Minister was killed.

In its reasons for decision the Tribunal set out the background to the application in summary form and then referred to the relevant legislation, the Convention and the consideration by Australian courts of what is comprehended by the definition of refugee.  The Tribunal then commenced to deal with the application under a heading: “Claims and Evidence”.  This section commenced with the following:

The applicant’s claims are set out in written submissions to the Department, written submissions to the Tribunal and oral evidence given to the Tribunal on 6 April 1998.  They are as follows.

He [sic] applicant is a 29 year old single Sikh male from Jalandhar in India.  His parents and siblings continue to reside in India.  The applicant completed approximately ten years of schooling and he speaks, reads and writes both Punjabi and Hindi and he reads some English.  He gives his usual occupation as chef.

The applicant told the Tribunal that his life is in danger in India.  He claims that the police and militants have been looking for him through his parents even since he left for Australia.  He claims that his parents always say they don’t know where he is.  He claims that the terrorists want to force him to give speeches in support of Khalistan, while the police come after him because they think he has been giving speeches in support of Khalistan.

The written submissions to the Department, the written submissions to the Tribunal and the oral evidence given to the Tribunal are not in evidence in the proceedings in this Court.  However there was in evidence the applicant’s application to the Tribunal which identified the reasons for his application in the following terms:

I wish to attend an interview and explain how the Decision maker has applied too objective a test – he has ignored my personal position.

In its reasons for decision the Tribunal set out at length various claims by the applicant concerning his life in India and, in particular, his treatment at the hands of the police and the terrorists he contended wished to force him to give speeches in support of Khalistan. The Tribunal then described how it had put to the applicant information obtained by the Tribunal which it described as “independent information”, namely a cable from the Australian Department of Foreign Affairs and Trade and a paper published by the Canadian Immigration and Refugee Board.  The text of the information was set out in the Tribunal’s reasons.  It related first to the circumstances in which a person of interest to the authorities might be able to leave India and secondly the circumstances presently existing in Punjab and the extent to which Sikh militancy remained a feature of life in that part of India.  The Tribunal then recorded what the applicant said about life in the Punjab.  It noted the applicant’s claim that police continue to violate human rights and are still attacking and killing people.  The Tribunal then noted that it had put other independent information to the applicant, though unlike the two pieces of independent information already referred to, it is noted only in a summary form in the Tribunal’s reasons.  The Tribunal observed that the applicant responded to this further independent information by saying that violence still occurs in the Punjab and the struggle continues.  The Tribunal noted that the applicant had said that 1999 is the 300^th anniversary of the Khalistan movement and that this will mark a period of great drama and danger that he did not wish to return to.  The Tribunal then recounted evidence given by a witness called by the applicant who had lived in the same village as the applicant and had periodically returned to India since arriving in Australia in 1985.

The Tribunal set out its conclusions under a heading “Findings and Reasons”.  It commenced by saying:

The Tribunal did not find the applicant to be a credible witness.  Much of his evidence appeared to be implausible or greatly exaggerated.  There are inconsistencies in some aspects of his evidence.  The applicant appeared to have concocted his story.  He tried to recount the story to the Tribunal, although he did not do a very good job at remembering certain aspects of the story he had concocted.  The Tribunal is not satisfied that the police or Khalistani terrorists are, or have ever been, pursuing him.  The Tribunal is not satisfied that the applicant has a well founded fear of persecution in India for a Convention reason.

The Tribunal then set out some of the matters that had caused it to reject the account given by the applicant.  The Tribunal concluded this part of its reasons with the following:

In sum, the Tribunal finds: the applicant concocted his whole story; the Khalistani terrorists did not demand that the applicant give speeches in support of Khalistan nor did they threaten him in relation to this; that the police were not interested in the applicant because of a belief that he had given speeches in support of Khalistan; that the applicant did not travel around in order to hide from the Khalistani terrorists or the police between 1989 and 1995; and that the police and the Khalistani terrorists do not have any continuing interest in the applicant.  The Tribunal is not satisfied, therefore, that the applicant has a well founded fear of persecution for a Convention reason in India.

The Tribunal indicated it was not satisfied the applicant was a person to whom Australia had protection obligations under the Convention.

The issues raised in these proceedings are narrow in compass and are related. The first involves a contention that the Tribunal made no positive findings of fact having regard to the material before it and simply rejected the essential features of the applicant’s claims. Findings should have been made in relation to, for example, the circumstances in the Punjab that had been described in the independent information the Tribunal had put to the applicant during the course of the hearing. It was contended that the Tribunal’s failure to make findings of fact involved a breach of s 430 of the Act sustaining the ground of review identified in s 476(1)(a): see Hughes v Minister for Immigration and Multicultural Affairs (unreported, 17 September 1998, Lee J). It was also submitted that the failure of the Tribunal to make findings on major issues posed for determination was a breach of s 420(2)(b) and a ground identified in s 476(1)(a): see Yao-Jing v Minister for Immigration and Multicultural Affairs (1997) 74 FCR 275.

The related ground raised by counsel for the applicant was that it was necessary for the Tribunal to look to the future in ascertaining whether there was a real chance of persecution if the applicant returned to India: see Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 578-579 and Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 281. It was submitted by counsel for the applicant that the task of the Tribunal is not merely to assess the credibility of an applicant. The rejection of evidence given by an applicant on the footing that the applicant was not a credible witness does not necessarily resolve the question of whether the applicant was a refugee. Counsel referred to the recent judgment of a Full Federal Court in Kopalapillai v Minister for Immigration and Multicultural Affairs (unreported, 8 September 1998), in which the Full Court referred with approval to passages appearing in Professor Hathaway’s text The Law of Refugee Status (1991, Butterworths) which included the following (itself an extract from a decision of the Canadian Immigration Appeal Board):

Ultimately, however, even clear evidence of a lack of candour does not necessarily negate a claimant’s need for protection:

Even when the statement is material, and is not believed, a person may, nonetheless, be a refugee.  “Lies do not prove the converse.”  Where a claimant is lying, and the lie is material to his case, the [determination authority] must, nonetheless, look at all of the evidence and arrive at a conclusion on the entire case.  Indeed, an earlier lie which is openly admitted may, in some circumstances, be a factor to consider in support of credibility.

Counsel for the Minister submitted that the Tribunal had made the findings necessary to deal with the application for a protection visa having regard to the basis on which it was sought.  These findings appeared in a summary form in the passage I earlier set out, commencing with the words “In sum, the Tribunal finds …”  Moreover, it was submitted, the Tribunal had considered whether the applicant had a well founded fear of persecution.

The reasons of the Tribunal have to be read generously: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang at 291 per Kirby J. In my opinion the approach of the Tribunal was unexceptionable. It is clear that the claim for a protection visa advanced by the applicant was made on the basis that if the applicant returned to India he was at risk of harm at the hands of either the police or Khalistani terrorists. The Tribunal made an express finding at two points in the concluding section of its reasons that the police and the terrorists were not, nor ever had been, pursuing the applicant and that the applicant was not of continuing interest to either group. It appears to me that it can fairly be inferred that the Tribunal took the view that there was no real prospect that the applicant, were he to return to India, would be of interest to either group and thus at risk of harm at the hands of either of them. Thus the Tribunal both addressed the factual foundation of the claim made by the applicant and, having regard to the findings it made, addressed the question of whether the applicant was a refugee. In so doing it did not misconceive its task nor did it fail to engage in the process of speculation which that task entails. The consideration of the application in the concluding section of the Tribunal’s decision may be brief, but it is not, in the circumstances, an approach that discloses an error of law.

The applicant has not established a reviewable ground of review.  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 Moore

Associate:

Dated:             4 November 1998

Counsel for the Applicant:	T Reilly
Solicitor for the Applicant:	Ramrakha Jenkins
Counsel for the Respondent:	R Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 October 1998
Date of Judgment:	4 November 1998