Singh v Minister for Immigration and Multicultural Affairs

[1999] FCA 1051

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1051

AVTAR SINGH v

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

N 288 of 1999

HILL J
27 JULY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 288 OF 1999

BETWEEN:

AVTAR SINGH
Applicant

AND:

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS

Respondent

JUDGE:

HILL J

DATE OF ORDER:

27 JULY 1999

WHERE MADE:

SYDNEY

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
NEW SOUTH WALES DISTRICT REGISTRY	N 288 OF 1999

BETWEEN:

AVTAR SINGH
Applicant

AND:

MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS
Respondent

JUDGE:	HILL J
DATE:	27 JULY 1999
PLACE:	SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1. The applicant, Avtar Singh, applies to the Court for a review of a decision of the Immigration Review Tribunal affirming a decision made by a delegate of the Minister that a protection visa not be granted to him. 

2. It is a criterion for the grant of a protection visa that the Minister or, on review, the Tribunal in place of the Minister, is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (both compendiously referred to in these reasons as “the Convention”).

3. Article 1(A)(2) of the Convention defines a refugee to be a person who:

   “owing to well-founded fear of being persecuted by 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.”

4. The applicant is a citizen of India, emanating from the Punjab where his brothers and parents live and work.  His claim to be a refugee within the meaning of the Convention was that he had a well-founded fear of being persecuted by reason of his membership of a particular social group, namely the Sikh Student Federation.  In support of that claim he gave evidence, both in writing and orally, to the Tribunal.  He said that he attended a college in Suntanpur, where he studied English, Punjabi education and sport.  It was there, he said, that he became a member of the Sikh Student Federation.

5. In support of both the subjective and objective elements of fear of persecution, which the Convention definition requires, he relied especially on an event which he said occurred at the beginning of 1994, when he was delivering a lecture, presumably at the college at which he was studying.  He said that he had been picked up with a number of other people by the police, had had his hair cut off and had been beaten up but been released after two days because of influence that his father had with the Akali Dal, a political party now in power in the Punjab.

6. He did not complain that he had been detained by the police thereafter, however he referred in his evidence to a time when he had been arrested by the police in Delhi at the end of 1994, after neighbours had complained that he and associates of his were terrorists, and he referred also to an occasion in Rajistan when he said the Punjabi police had raided his father's property, looking for the applicant and his friends.  He seems not to have had any direct knowledge of this last matter, but to have been told that the police were coming to raid the property by some friends.

7. The Tribunal in its reasons expressed itself as being sceptical both that the applicant had studied at a university or had been a member of the Sikh Student Federation.  The Tribunal’s scepticism on the latter matter arose because it had been unable to find any reference to an organisation called the Sikh Student Federation, although an organisation called the All India Sikh Student Federation existed.  The Tribunal said that it found it difficult to accept that the applicant would not know the full name of an organisation of which he said he had been a member.

8. The Tribunal then said that even if it accepted that he was a member of the All India Sikh Student Federation or similar organisation, the applicant was not an organiser, party official or high profile member. The Tribunal continued in the following passage which is relied upon by counsel for the applicant as establishing an error of law on the part of the Tribunal, justifying the setting aside of the Tribunal's decision having regard to Section 476(e) of the Migration Act 1958:

   “He claimed that he was arrested for two days and released after his father and the Akali Dal intervened.  At the time that the applicant claims that this event occurred, the country information is that the situation had very much changed from the violent confrontations between militants and police of the late 1980s and early 1990s and that the human rights situation had dramatically improved.  Even if I accept, that the applicant may have been detained and abused in some way by local police at that time, for some reason, I do not accept that an isolated incident such as this would amount to persecution.  There is no sign that this was a policy at this time which was condoned by the national government.  There is no sign that the applicant sought any redress against local officials, despite the fact that his father and the Akali Dal clearly had some influence in the area.”

9. Without a great deal of further discussion, although the Tribunal does allude to country information, in the page or so which follows the passage complained of the Tribunal concluded:

   “I have considered the applicant's claims individually and in their totality, but I do not accept that the applicant faces a real chance of persecution for a Convention reason if he were to return to India now or in the foreseeable future.  I therefore do not accept that the applicant has a well founded fear of persecution for a Convention reason if he were to return to India now or in the foreseeable future.”

10. Counsel for the applicant submitted that in the passage earlier cited the Tribunal erred in law in applying as a test a requirement that persecution must consist of more than one incident.  Alternatively, it was submitted that the Tribunal erred in failing to make factual findings concerning both the arrest of the applicant on grounds of suspected terrorism and the raid in Rajistan, to which reference has already been made.  In considering these submissions I take into account the caution given in the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259, that the reasons of the Tribunal not be the subject of minute observation but rather that they should be given a fair reading, a beneficial construction and not “construed minutely and finely with an eye keenly attuned to the perception of error” see Wu at 271–272 quoting the Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC) at 287.

11. The passage complained of cannot be read in isolation.  At the commencement of the Tribunal's reasons the Tribunal referred to a number of leading cases which have discussed the definition of refugee in that Convention.  In the course of that discussion the Tribunal says:

    “Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason.  In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures ‘in disregard’ of human dignity.  The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality.”

    It is obvious from the passage I have just cited that the Tribunal clearly accepted that in a particular case an act of oppression or violation of human rights could constitute persecution although not repeated.

12. It seems hardly likely, therefore, that in the passage complained of the Tribunal, in disregard of what it earlier said, intended to suggest that what had happened to the applicant in 1994 did not constitute persecution because it was an isolated act.  Nor do I think it likely that the Tribunal was suggesting, in the passage complained of, that being beaten up of itself was incapable of being persecution.  The question whether particular acts are capable of being persecution is no doubt a question of law and if the Tribunal erroneously concludes that a particular act is not capable of persecution it can be said that the Tribunal, in such a case, may have erred in law.  But the question whether or not a particular act in a particular set of circumstances amounts to persecution is not of itself a question of law it is a question of fact.  It is a question of fact to be determined by the Tribunal and not one entrusted to this Court.

13. In my view the passage complained of amounts to no more than a finding that in the circumstances of the facts of the present case, assuming the applicant's account of them is accepted, what happened to him did not amount to persecution. 

14. That is a matter for the Tribunal and not for this Court.  The alternative way the submission is put involves a somewhat different question.  A failure to make a finding on a fact which is material to the outcome involves reviewable error.  The question, therefore, is, in the present case, whether the Tribunal failed to make findings of fact and if so whether that failure was material to the outcome.

15. Mr Markus, who appeared for the Minister, submitted that the Tribunal did make necessary findings rejecting the applicant's evidence.  He submitted also that the Tribunal, in any event, accepted by way of alternative the applicant's claims but nevertheless rejected them because it was of the view that there was no objective basis for a fear of persecution on the applicant's part.  With respect to Mr Markus I do not think that the Tribunal's reasons can be read as having rejected factually the applicant's evidence.  It is one thing for a Tribunal to indicate that it finds it difficult to accept particular evidence;  it is another thing to move from that to a conclusion that the Tribunal rejected that evidence when immediately thereafter it proceeds on the basis that even if that evidence were correct the applicant's case must fail.

16. It seems to me clear enough that the Tribunal made no factual finding either as to the applicant's arrest on suspicion that he was a terrorist or as to the raid which the applicant said had taken place at his father's farm.  If these matters were material to the applicant’s claim it would I think be correct to say that the Tribunal had made an error of law.  It certainly did not make an error of law in failing to make a finding about the events in early 1994, because it took the view that, even if it accepted that those events took place in the particular circumstances in which they did there, they did not amount to persecution.  I should say that if there were persecution it would clearly seem to have been for a Convention reason, because the lecture which the applicant was giving when arrested was, so the Tribunal found, about Sikh separatism.

17. When one examines carefully the Tribunal's reasons for concluding that objectively the applicant did not have a well-founded fear of persecution for a Convention reason, it can be seen that it depended upon material before it as to the continuous improvement in the human rights situation in the Punjab from at least 1994 to a later time, being relevantly at least the time of the hearing.  In 1996 the United States Department of State reporting on the situation in 1995 had noted that in the Punjab:

    “the insurgent violence of past years has largely disappeared.”

18. No comment at all was made by the State Department's material in 1997 about terrorist attacks by Sikhs or abuse by the police.  Instead the State Department reported that further progress had been made in resolving human rights problems.  The Australian Department of Foreign Affairs noted in a 1995 report that a ground-swell that had once sustained militancy was:

    “now hardly a ripple.”

    In 1996 a DFAT cable confirmed:

    “a wholesale political resolution of the separatist problems in the Punjab, a quantum leap in state officials' awareness of human rights issues and in their recognition of the need to eliminate practices which breach India's human rights obligations.”

19. A Reuters report in 1997 is quoted by the Tribunal as commenting that peace had largely returned to the Punjab with attention now being directed at the ballot box.  The Tribunal noted also that the Akali Dal, the party which had assisted the applicant when he had had problems with the police, was itself in power in the Punjab, and at least inferentially in a position to ensure that the applicant not be persecuted.  Given the Tribunal's conclusion that there had been a dramatic improvement in the situation in the Punjab over the period at least from 1994 on, it is not surprising that the conclusion which the Tribunal drew was that the applicant did not have reason to fear persecution.  This conclusion would be so whether or not the events in Delhi at the end of 1994 and the raid spoken about at his father's farm, had occurred.

20. It is important to note another matter on the first of those two events.  It is difficult to see how a claim that the applicant had been arrested because others had complained he was a terrorist had any relationship to the case he was putting forward that he was persecuted by reason of his membership of a Sikh student organisation.  For this reason alone it is perhaps not surprising that the Tribunal dwelt little upon it.

21. There seemed to be very little evidence as to the second of the matters, the supposed raid on the applicant’s father’s property.  The fact that police had come to the applicant's father's property looking for the applicant is perhaps equivocal on the question whether he had a well-founded fear of persecution by reason of his membership of the student group, particularly when on his own evidence his last activity with that organisation occurred in 1994.  Although I must say it would have been preferable had the Tribunal made factual findings on the matters complained of, I think on a fair reading of the Tribunal's reasons its failure not to make those findings did not involve it in legal error.

22. This, as I have already noted, is really because the Tribunal's decision depended upon its findings based upon the country reports, some of which I have referred to above, rather than upon events which the applicant relied upon.  I should add for completeness that while past events clearly provide in many cases a reliable means of predicting future persecution, that will not always be the case, particularly where, as apparently is the case in India, there has been a substantial change in human rights protection making the past a less reliable guide for the future: See Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 578.

23. In my view the Tribunal did err in law in one respect, namely in its failure to consider whether relocation to other parts of India was a reasonable alternative.  The Tribunal clearly enough in its reasons, took the view, but only as an alternative way of looking at the case, that the applicant could live anywhere in India if he did not wish to return to the Punjab and was for that reason not a refugee.

24. However in reaching this conclusion the Tribunal does not appear to have applied the correct test as formulated by the Full Court of this Court in Randhawa v Minister for Immigration, Local Government Ethnic Affairs (1994) 52 FCR 437 at 442. Since however, the Tribunal's conclusion that the applicant did not satisfy the test of being a refugee for the purposes of the Convention provided sufficient reason for rejecting the application, any error it made on the issue of relocation was immaterial. I would accordingly dismiss the application.

25. The application is dismissed with costs.

I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill.

Associate:

Dated:             27 July 1999

Counsel for the Applicant:	M Papallo
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 July 1999
Date of Judgment:	27 July 1999