Singh v MIMA

[1998] FCA 1593

CHUMKAUR SINGH v. MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No. NG 290 of 1998
FED No. 1593/98
Number of pages - 7

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

HELY J

SYDNEY, 8 December 1998 (hearing), 14 December 1998 (decision)

#DATE 14:12:1998

Counsel for the Applicant: S C Churches

Counsel for the Respondent: R Henderson

Solicitor for the Respondent: E Warner

Australian Government Solicitor

THE COURT ORDERS THAT:

1. The application is dismissed with costs

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

HELY J

The applicant is a successful businessman in the Punjab, and a citizen of India. He left India on 18 March 1995, and arrived in Australia on the following day. On 18 April 1995 he applied for a protection visa. The grounds on which he made that application were that he fears that he would be killed if returned to India because of his affiliations with the Akali Dal (Mann) Party, and because of this affiliation, he has been targeted and listed by the security forces.

Background

The applicant is a member of the Sikh religion. There is a large concentration of Sikhs in the Punjab. In 1983 Sikh opposition groups emerged demanding the formation of a separate state; a decade of bloodshed and violence followed; there were waves of anti-Sikh riots which resulted in the deaths of over 10,000 Sikhs. Extensive human rights abuses took place in the Punjab at the height of the separatist movement. These abuses were committed by both the militants, and by government forces and frequently resulted in harm to persons who had very little, if any direct connection with the conflict. The police forces engaged in arbitrary arrest, illegal imprisonment, torture, disappearances of citizens and suspected militants and massacres both of innocent persons and suspected militants.

In mid 1984 Operation Bluestar took place. This involved the assault by the Indian army on one of the holiest of the Sikh religious shrines, and was followed by the assassination of Prime Minister Indira Ghandi by two Sikh bodyguards. This event, in particular, precipitated the riots and violence referred to in the preceding paragraph. "The remainder of the decade through to the early part of the 1990's saw what Human Rights Watch has described as one of the bloodiest chapters in India's post-independence history" (p 6 - RRT).

Persecutory treatment of the applicant

The applicant said that in June 1994 he was instrumental in organising a commemoration of Operation Bluestar. He was taken from his home by the police on the day prior to his intended participation in the commemoration, he was mistreated, and held in custody for six weeks without warrant.

Refugee Review Tribunal ("RRT") said that the independent evidence available to it did not point to any civil disturbance of the type for which the applicant contended occurring at about this time. Nonetheless RRT concluded:

"I accept that it is possible that the applicant may have been detained at this time, and that his experiences may have led him to fear persecution if he returns to the Punjab."

The applicant also contended that in January 1995 he organised a demonstration following the arrest of the former member of parliament, S. Simranjeet Singh Mann. The police raided the applicant's house, he was beaten and detained in custody without warrant for 19 days. S. S. Mann was the applicant's political leader. He advised him to leave India as S. S. Mann feared that his followers would be victimised by the police. A member of parliament, Sardar Jagdar Singh Khudian was kidnapped and killed.

Of this incident, RRT said:

"I also accept that he may have been detained and held again in January 1995 when he was involved in the organisation of the demonstration in support of his party leader."

RRT reasons for decision

RRT was not satisfied that the applicant has a well founded fear of persecution should he be returned to India. Insofar as is relevant to the present application, the reasons which RRT gave for reaching that conclusion were essentially these:

* The applicant left India in March 1995 on a passport issued in his own name, which indicates that he was then 'of no further interest to the authorities'.

* Independent evidence shows that the position in the Punjab has radically changed since 1994. People who are not high profile militant suspects are not at risk of persecution in the Punjab today. The applicant neither has, nor claimed to have, a high profile within any of the Sikh organisations of which he was a member. RRT was not satisfied that the applicant would come to the adverse attention of the authorities for reason of his membership of those groups if he returned to India.

* The applicant could relocate to other parts of India if he did not choose to return to the Punjab. Sikhs are well represented in India outside the Punjab, particularly in the big cities of Bombay and Calcutta and in areas such as Uttar Pradesh, and even in the south of India. The 1991 census figures suggested that approximately ¹/₅to _ of Sikhs in India lived outside the Punjab. Sikh men are brought up with the idea of travelling or relocating to seek better lives, and in most Sikh families, there are members in diverse locations.

A late emerging communication

The hearing before the Tribunal member took place on 3 December 1997. At the hearing the applicant was given two documents, described on page 4 of the Tribunal's reasons for decision. One of those documents asserted that the security situation in the Punjab had greatly improved from the time of the claimed persecution of the applicant. The applicant was given the opportunity to provide comments on those documents before the Tribunal came to a conclusion on his application.

On 24 January 1998 the applicant's adviser wrote to RRT. The letter stated, in part:

"(The applicant) has recently received a fax from India, copy attached, regarding possible militants which may try to enter India in the near future. I am told that this document was obtained by 'other party members', ie - Akali Dal (Mann) Party, who have contacts or supporters within the police. You will notice that (the applicant) is the fourth name on the list. This fax was sent to (the applicant) because Gurjit Singh and Rajwant Singh both know that (the applicant) has lodged an application for refugee status in Australia and that he may be returning to India in the near future if his application is rejected.

I do not know how much weight you will put on this letter, and I would request that you take this into consideration in any decision you make."

The attached fax purported to be a communication from the Director-General of Police, Punjab Police, Chandigarh dated 21 December 1997 addressed to:

"The Deputy Comm. Of Police, Airport Viggllence, Delhi Police, New Delhi. Kind Attn: Mr N. K. Sabharwal"

The fax states:

"Please refer to the telecon the undersigned had with you. I am forwarding herewith a list of foreign based militants who are likely to enter the country during the next few days in the wake of the coming parliamentary elections. We are also sending a team of officers along with the files of these people to help you in this regard. You are requested to cooperate with our team in stopping the entry of these militants.

1 ... ... 3 ... 4 Chamkaur Singh S/O Dalip Singh Distt. Ludhiana 5 ... 6 ... 7 ... 8 ...

Please note that the complete details are being sent separately along with some more names."

Of this fax, RRT had this to say:

"The facsimile was sent to 'The Deputy Comm of Police, Airport Vigglance, Delhi Police' and named the applicant in a list of 'foreign based militants who are likely to enter the country in the wake of the coming parliamentary elections'. There is no evidence available to the Tribunal regarding the existence of such a committee, and giving regard to advice from the Department of Foreign Affairs and Trade that "it is very easy to fraudulently obtain personal documentation in India but it is almost impossible to make a judgment by looking at any particular document, in isolation, on whether or not it is fraudulent" has not taken it into account."

Grounds for review

Only two grounds for review were relied upon. Each is based on non-compliance with the procedural requirements of s 420 of the Migration Act 1958 (the Act), thus giving rise to a failure to comply with s 476(1)(a) in accordance with the decision of the Court in Eshetu v Minister for Immigration & Multicultural Affairs (1997) 71 FCR 300. The grounds are:

* A failure to make enquiry as to the genuineness of the document of 21 December 1997 before rejecting it on the basis of generalised DFAT information only.

* A failure to take the procedural step of asking "What if I am wrong?" before coming to the conclusion that whatever once may have been the case, the position in the Punjab is now such that persons having a low political profile, such as the applicant, are not at risk of persecution.

Failure to make enquiries

RRT gave as its reasons for declining to take the document of 21 December 1997 into account:

* The absence of any evidence available to RRT regarding the existence of "such a committee".

* The DFAT information as to the ease with which personal documentation can be fraudulently obtained in India.

* One cannot tell simply by looking at the document whether or not it is fraudulent.

Reference to "such a committee" is obscure. I assume that it is a reference back to "The Deputy Comm of Police" which is, clearly enough, a reference to the Deputy Commissioner of Police, rather than to a committee. However, I think it reasonable to construe this reference as indicating that RRT had no evidence available to it which would confirm the existence of a position which accorded with the office attributed to the addressee of the letter. I do not know what enquiries RRT made on this account.

But the factors indicated above establish that RRT directed its mind to the issue of the reliability of the communication. The issue then, is whether RRT was obliged to do more than it did before declining to be satisfied that the communication was a genuine one, and that the information contained in it was reliable.

The Migration Agent's letter enclosing a copy fax did not ask RRT to exercise its powers to make enquiries, nor did it provide any information as to how a copy of a supposed police to police communication came into the hands of those who were responsible for its transmission to the applicant. There is simply an oblique reference to "other party members" who have "contacts or supporters within the police".

The absence of a request that the Tribunal should exercise its powers to make enquiries may not be decisive. It is, however, relevant particularly when taken in association with the adviser's statement that he did not know how much weight RRT would put on this letter, but simply requested that it be taken into consideration.

It has been held in this Court that as a general rule the RRT is not obliged to make enquiries, Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155. At pages 169-170, Wilcox J said:

"The circumstances under which a decision will be invalid for failure to enquire are, I think, strictly limited. It is no part of the duty of the decision maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make enquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision making power in a manner so unreasonable that no reasonable person would have so exercised it."

In Minister for Immigration & Ethnic Affairs v Singh (1997) 74 FCR 553 at 560 the Full Court said:

"The way in which the Tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which enquiry by the Tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case. In cases where s 424 does not apply (that is, where there is no review "on the papers"), the Tribunal must give an applicant an opportunity to appear before it to give evidence (s 425(1)(a)), and "may obtain such other evidence as it considers necessary") s 425(1)(b).

...

These provisions show that the Tribunal's role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular enquiry will no doubt be rare, as they have been in cases under the ADJR Act."

At page 561 the Full Court rejected the existence of a general rule that a dispute as to the authenticity of the document produced by an applicant purporting to be an official document issued in a foreign country necessarily gives rise to some duty in RRT to verify the document through official channels. It was said that in a particular case, the Tribunal may be obliged to verify a document in this fashion, but there is no general rule to that effect.

I do not think that Sun Zhan Qui v Minister for Immigration & Ethnic Affairs (1997) 151 ALR 505, 547 represents a new departure from these principles. Rather, it is a restatement of them. Sun establishes that if a decision maker fails to obtain important information, on a central issue for determination, which the decision maker knows to be readily available, then there may be a reviewable error. The obligation to make an enquiry only arises if the obligation to act according to substantial justice so dictates. In Mr A v Minister for Immigration & Multicultural Affairs (17 November 1998, unreported) I said that will usually be where there is some obscurity raised by the evidence before the Tribunal that goes to a crucial issue in the determination of the claim to be a refugee. Failure to enquire in those circumstances means that there has been a failure to deal with the crux of the applicant's claim.

That cannot be said here. The applicant propounded his claim; he was afforded a hearing; his attention was drawn at the hearing to a concern on the part of RRT that his claimed fear of persecution for a convention reason might no longer be well-founded. Out of the blue, as it were, the applicant's adviser sends to RRT a document calculated to establish that the applicant's fear is well founded, without condescending to any particularity which might establish the genuineness of the document, and without any request that the Tribunal do more than, in effect, take such account of the document as it considered to be appropriate.

In those circumstances, given that RRT is not required to accept statements made to it uncritically (Randhawa v Minister for Local Government & Ethnic Affairs (1994) 52 FCR 437, 451), nor does it have to have rebutting evidence before holding that a particular assertion is not made out (Selvadurai v Minister for Immigration & Ethnic Affairs (1994) 34 ALD 347, 348) I do not think that it can be said that an obligation to act according to substantial justice made further enquiry by RRT imperative.

Some support for that conclusion may be derived from the decision in Bhuiyan v Minister for Immigration & Multicultural Affairs (14 October 1998 - unreported) where Wilcox J said:

"One possibility, of course, would have been for the Tribunal to have made enquiries of the Bangladeshi Government about the genuineness of the document. But the enquiry could not have been made without disclosing the applicant's identity. Most applicants for refugee status would be extremely disturbed to think that the Tribunal might communicate with the home government, revealing not only their presence in Australia but also that they were seeking refugee status. Accordingly, I do not think that the Tribunal is to be criticised for failing to make an enquiry about the authenticity of the documents."

It is true that in the present case what would be revealed to the police authorities in Delhi is that one of eight persons named in the document was in Australia or had some dealings with Australia. But the observations of Wilcox J, which I have quoted, are nonetheless germane.

It follows, in my opinion, that this ground on which review is sought is not made out.

"What if I am wrong?"

RRT came to the conclusion, upon the basis of the independent evidence as to the position currently applying in the Punjab, that it was not satisfied that the applicant's fear of persecution on return is well founded. It was said that it was in relation to this finding that the "What if I am wrong?" question should have been asked.

It was not submitted that RRT misunderstood or misapplied the "real chance" test. At page 3 of its decision RRT said:

"A person has a 'well founded fear' of persecution under the convention if they have a genuine fear founded upon a 'real chance' of persecution for a convention stipulated reason. A person can have a well founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. A 'real chance' is one that is not remote or insubstantial or a far fetched possibility."

Thus RRT correctly stated the question which fell for its determination, and the test to be applied in the resolution of that question.

RRT had to decide whether, in its view, there was a real chance of persecution for a convention reason should the applicant return to the Punjab. I do not see how any "What if I am wrong?" proposition can have any meaningful application to the resolution of that question. This is not a case where a number of items of evidence are being dealt with seriatim such that it can be said that there is a risk that the decision maker may lose sight of the whole picture. The "What if I am wrong?" test is calculated to address this problem.

For the reasons which I gave in Mr A v Minister for Immigration & Multicultural Affairs (unreported, 17 November 1998) and Sellamuthu v Minister for Immigration & Multicultural Affairs (unreported, 11 November 1998) there is no general rule that the "What if I am wrong?" test must be applied to all elements in the fact finding process. In my opinion, there is simply no room for its application when RRT has to form a view as to whether it is satisfied that there is a "real chance" of persecution, in the sense referred to in the authorities, should the applicant be returned to the country of which he is a national.

Relocation

Even if it were found that the decision of RRT was deficient because of the failure to take the procedural step of asking "What if I am wrong?", that would only undermine the decision of RRT insofar as it determined that the applicant did not have a well founded fear of persecution for a Convention reason should he be returned to the Punjab. The Tribunal gave as an alternative basis for rejecting his claim to refugee status, the proposition that it was reasonable for the applicant to relocate into other areas outside the Punjab where there was a significant Sikh population.

RRT's decision in this respect was not sought to be impeached by the amended application for an order of review. The only submission put on that issue was that there was no analysis by RRT as to how this applicant would fare outside the Punjab.

I do not think that that criticism is made out. The discussion at pages 11 and 12 of RRT's reasons focuses on the question as to whether it would be reasonable for this applicant, in his particular circumstances, to live in parts of India outside the Punjab assuming, that for whatever reason, he did not wish to return to the Punjab.

Conclusion

The result is that the application is dismissed.