Singh, Surjit v Minister for Immigration & Ethnic Affairs
[1996] FCA 419
•30 MAY 1996
CATCHWORDS
ADMINISTRATIVE LAW - judicial review of the decision of the Refugee Review Tribunal that the applicant is not a refugee under the 1951 United Nations Convention relating to the Status of Refugees - applicant, a Sikh from the State of Punjab in India, having a subjective fear of persecution on the grounds of religion and political opinion - the critical time at which facts had to exist to enable the applicant to meet the criteria of the 1951 United Nations Convention relating to the status of Refugees was the time when he sought recognition as a refugee - determining the likelihood of the applicant being persecuted if he returned to India as at the date of the Refugees Review Tribunal's own determination or within the reasonable future is an error involving an incorrect interpretation of the applicable law within the meaning of s476(1)(e) of the Migration Act 1958 (Cth).
Migration Act 1958 (Cth) s 476(1)(e)
Chan v Minister for Immigration and Ethnic Affairs (1989) 160 CLR 379
No SG 65 of 1995
SURJIT SINGH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL
Branson J
Adelaide
30 May 1996
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 65 of 1995
)
GENERAL DIVISION )
BETWEEN:
SURJIT SINGH
Applicant
- and -
MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS and
REFUGEE REVIEW TRIBUNAL
Respondents
MINUTES OF ORDER
CORAM: Branson J
PLACE: Adelaide
DATE: 30 May 1996
THE COURT ORDERS THAT:
The decision of the Refugee Review Tribunal of 18 August 1995 is set aside.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 65 of 1995
)
GENERAL DIVISION )
BETWEEN:
SURJIT SINGH
Applicant
- and -
MINISTER FOR IMMIGRATION
AND ETHNIC AFFAIRS and
REFUGEE REVIEW TRIBUNAL
Respondents
REASONS FOR JUDGMENT
CORAM: Branson J
PLACE: Adelaide
DATE: 30 May 1996
By application dated 19 September 1995 the applicant seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 18 August 1995. By such decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Local Government and Ethnic Affairs that the applicant was not a refugee within the meaning of the 1951 United Nations Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the status of refugees ("the Refugees Convention").
This application was heard together with applications for review filed on behalf of Mohinder Singh (SG 56 of 1995) and
Jagjit Singh (SG 62 of 1995). These reasons for judgment should be read together with those delivered in the matter of Mohinder Singh.
The issue of the law to be applied in considering these three applications is discussed in my reasons for judgment in the matter of Mohinder Singh. I shall not repeat here my reasons for concluding that each of the applications is to be determined in accordance with the Migration Act 1958 (Cth) ("the Act") as in force on and after 1 September 1994 as if the application initially made were an application for a protection visa.
The issue of the critical time for the assessment of whether or not the applicant has the status of a refugee under the Refugees Convention is also dealt with in my reasons for judgment in the matter of Mohinder Singh. I shall not repeat here my reasons for concluding that the critical time for the assessment of refugee status is the time when the application for recognition of such status was lodged.
In this case the applicant sought recognition of refugee status in Australia by lodging his application for refugee status on 8 August 1991.
FACTUAL BACKGROUND
The applicant's claim for refugee status incorporated a claim on behalf of his wife and son.
The applicant is from the rural village of Purkhowal in Garshankar in the district of Hoshiarpur in the State of Punjab in India. After finishing his secondary education in 1980, he engaged in farming. In his application for refugee status, the applicant stated that he supported the concept of the independent state of Khalistan and that he was known for his fearless advocacy of the Sikh cause. He claimed to have been arrested and detained some 10 times in the past 5 years - sometimes by the police and sometimes by the military. He indicated that he was sometimes detained for a few days, sometimes for a week and once for two weeks. He complained about the conditions in which he was detained and stated that in jail he was tortured by being beaten on the soles of the feet and in the stomach. He also referred in his application to an occasion when he and his wife were set upon by a Hindu mob and hurt.
At the hearing before the Tribunal the applicant submitted a statutory declaration dated 17 May 1995 which states:-
"I was a member of Sikh Sindranwales Party and a supporter of the Sikh Youth Federation and I was an active organizer in our party matters in the quest for a Sikh State (Khalistan). Our party does not believe in violence and we just want peace for our Independent State. But the Indian Government is not happy with this and deals with Sikhs as terrorists.
I joined the party in 1983. I was the political leader of the Town Gashishanbar which is the centre of 50 villages. Some of the party members were coming to my home for meetings. Once there was a meeting at my house and there were five members at my home in the meeting. Some one informed the Police about it. The Police came to our house, three members slipped away from them including myself. The Police arrested the rest of them. But later on the Police killed the three members in false encounters. This makes me and my family very scared.
After that the Police blamed it on me and said I was the one distributing the weapons to terrorist (sic) and for this reason the Police were searching for me. In January 1986 I was at home with my family and suddenly th Police came there and arrested me and I was taken to the Police station. They beat me brutally and my family tried to get me out of the Police station, to no avail. Later on my Father paid Rp20000 as a bribe for my release.
And after that I was still attending my party activities, but the Police were not happy with this and often harrassed me for this reason.
Later on the Police arrested me again in December 1986 and they put me in jail without a trial. I was beaten on the feet and my stomach, after three days my Father and the Villagers got me released again.
In April 1987 my Uncle and his family members were killed by the Police in the Mithewal village. My Father is worried about this and he was worried about me at that time.
After that the Police arrested me many times and these things happened to me many times too. In 1989 I got married. My Father was not happy that I was staying in India and going through these times and with the situation they wanted me to flee India. They asked my wife's brother to arrange a sponsorship for me, who is currently living in Australia. They sent me a sponsorship form an I got my visa and came to Australia.
If I go back to India I am scared I will be killed by the Police in a false encounter."
The applicant provided to the Tribunal copies of documents purporting to be warrants of arrest for the applicant and his wife dated 5 January 1995. He also submitted two letters purportedly from an advocate in Nawanshahr in the Punjab, dated 26 May 1995, which stated that the applicant and the wife are wanted by the authorities as criminal charges have been laid against them.
FINDINGS OF THE TRIBUNAL
The Tribunal accepted that the applicant, being outside of his country of origin, has a subjective fear of persecution. It also accepted that the applicant's "claims for protection may be assessed as coming within the Convention grounds of religion (as a Sikh) and political opinion (member of pro-Khalistan organisation or association with militants)".
The Tribunal concluded that the letters from the Indian advocate were not authentic, and apparently also concluded that the warrants for arrest, of which copies were placed before the Tribunal, were not authentic. This application does not call for a detailed examination of the evidence concerning the warrants. I note, however, that in circumstances in which an applicant for refugee status produces a document, such as a warrant of arrest, which purports to be an official document issued in a foreign country, in the absence of clear evidence which reveals it to be a forgery, its authenticity, if in issue, is a matter appropriate for verification by the Tribunal through official channels. Serious difficulties might well stand in the way of an applicant for refugee status seeking such official verification. I refer to the following passage from the Handbook on Procedures and Criteria for Determining Refugee Status published by the Office of the United Nations High
Commission for Refugees at p47:-
"Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all of 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."
The Tribunal reviewed the situation of Sikhs in India and in the Punjab in particular. It did so by reference to virtually identical material to that considered by it in the case of Mohinder Singh. I outlined the nature of that material in my reasons for judgment in the matter of Mohinder Singh.
The Tribunal concluded as follows:-
"Based on the above survey of current information regarding the situation of Sikhs in the Punjab and elsewhere in India, and my earlier findings on the Applicant's evidence, I have drawn a number of conclusions in respect of the Applicant's claims of fear of prospective persecution should he return to India. On the facts before the Tribunal, the Applicant's subjective fear of return to India, which appears to be genuine, relates primarily to the uncertainty of the security climate which characterised the Punjab region at the time of his departure.
Despite the genuineness of his subjective fear, it is evident nonetheless from information from a variety of sources that there has been a dramatic improvement in the Punjab in the intervening years since the Applicant's departure. From the evidence examined above, it would appear that the Indian authorities in the Punjab are targeting top sikh militants and those with a degree of prominence in human rights reporting. I find, therefore, that there is a substantially less than a real chance of the ordinary Sikh with no continuing involvement of any significance in separatist activities attracting the adverse attention of the authorities which would result in detention and mistreatment which Sikhs in the region have experienced in the past."
The Tribunal found that, at the time that he left India, the applicant did not have a political profile sufficient to bring him to the notice of the authorities and result in "prosecutory treatment". Nonetheless the Tribunal accepted that the applicant "was detained and mistreated on a number of occasions by the Indian authorities due to a suspicion that he might have been involved in pro-Khalistan activities." The Tribunal went on to find as follows:-
"These events, which cannot be condoned, appear to have been random and related to the security situation at that time. Although the Applicant claims that the police interest in him was as a direct result of his political activities, the facts before the Tribunal do not support such a conclusion."
It is not easy to reconcile the above findings of the Tribunal. It may be that the Tribunal was of the view that all or many Sikhs in the Punjab at the times that the applicant was detained and mistreated would have engendered suspicion in the Indian authorities that they might have been involved in pro-Khalistan activities, whether or not they engaged in relevant political activities. Such a view would support a conclusion that the detention and mistreatment which the applicant suffered was not on the ground of political opinion. It would be indicative, however, of detention and mistreatment, and thus persecution, on the ground of religion (see Chan v Minister for Immigration and Ethnic Affairs (1989) 160 CLR 379 per Mason CJ at 388 and 390).
The Tribunal concluded:-
"While I have sympathy for the Applicants in their desire to remain in Australia due to a reluctance to return to the uncertainty of life in the Punjab, I am unable to conclude that this reluctance discloses a well-founded fear of persecution on return for a Convention reason. The sources referred to above support the conclusion that the level of violence and killings in the Punjab has fallen dramatically since the Applicants left the Punjab in 1991 and, in particular, that abusive behaviour by the Punjab police is coming under growing and effective scrutiny by government bodies. In view of the vastly improved situation in the Punjab, and given that the Applicants do not have a level of association with terrorist groups which would bring them to the notice of the police, I find that there is no more than a very remote chance that they will be differentially at risk on return.
If the Applicant does not wish to return to the Punjab because of his experiences in the past, it is open to him to settle in another part of India where there are concentrations of Sikhs who are not experiencing Convention-related difficulties. I do not believe that relocation is an unreasonable option for him to pursue, given his relative youth and knowledge of Punjabi, Hindi and some English. In the absence of a well-founded fear of persecution, this would be preferable to resettlement in a third country.
Accordingly, having considered their claims cumulatively and individually, I do not find that the Applicant husband, the Applicant wife, or their son face a real chance of persecution because of their religion or political opinion upon return to India at this time or within the reasonably foreseeable future in terms of the test laid down by the High Court in Chan."
CONCLUSION ON REVIEW
As I have stated above, in my view, the critical time at which facts had to exist to enable the applicant to meet the Refugees Convention criteria for a refugee was the time when he sought recognition as a refugee, namely on 8 August 1991. On the critical issue of whether or not the applicant had a well-founded fear of persecution for a Refugees Convention reason, the Tribunal assessed facts not as at 8 August 1991 but at the time of its determination and "within the reasonably foreseeable future". In my view, this amounted to an error involving an incorrect interpretation of the applicable law within the meaning of s476(1)(e) of the Act.
In my view, the same error of law permeates the Tribunal's assessment of whether or not it would be reasonable for the applicant to relocate in India but outside of the State of Punjab.
The decision of the Tribunal must be set aside.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Branson.
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 : 11 April 1996
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