Singh v Minister for Immigration and Multicultural Affairs

[2001] FCA 1668

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1668

MIGRATION – protection visa – appeal from order dismissing application for review of decision of Refugee Review Tribunal – question of fact

GURPAL KUMAR SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
W 292 OF 2001

JUDGES:      SPENDER, MERKEL AND ALLSOP JJ
DATE:           26 NOVEMBER 2001
PLACE:         PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 292 OF 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEE:	GURPAL KUMAR SINGH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGES	SPENDER, MERKEL AND ALLSOP JJ
DATE OF ORDER:	26 NOVEMBER 2001
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.   The appeal be dismissed.

2.   The appellant pay the respondent’s taxed costs of the appeal.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W 292 OF 2001

On appeal from a single Judge of the Federal Court of Australia

BETWEEN:	GURPAL KUMAR SINGH APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGES	SPENDER, MERKEL AND ALLSOP JJ
DATE:	26 NOVEMBER 2001
PLACE:	PERTH

REASONS FOR JUDGMENT

THE COURT:

1. The appellant has appealed from a decision of the primary judge (Heerey J) to dismiss the appellant’s application for review under Pt 8 of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal, which affirmed a decision of the delegate of the Minister not to grant him a protection visa.

2. The appellant was born in India on 21 October 1977 and he came to Australia by boat to Ashmore Reef, apparently without any passport or other travel documents.  His claim to be a refugee was said to be based on political opinion; namely, support of the Bahujan Samaj Party (BSP) in Punjab.  His involvement was said to have been mainly assisting his father.  However, he later claimed to be a supporter of the Khalistan Freedom Fighters, an organisation fighting for a separate Sikh state.

3. Under the heading “Findings and Reasons” the Tribunal said:

   “I am satisfied that the applicant is a citizen of India and that he is outside the country of his nationality.  I accept that he comes from the Punjab and is a Sikh by religion.  He claims in essence to have a well-founded fear of persecution by reason of his political opinion, be it his membership of the BSP or his more recent claim to be an active supporter of the Khalistan Freedom Fighters.

   I am satisfied that he and his father were members of the BSP and that at election time he assisted his father in campaigning for that party both within the Punjab and in the neighbouring state of Uttar Pradesh.  This is a minor, but lawful party.  However, I do not accept that either he or his father suffered any persecution by reason of those political activities.  At the compliance interview he claimed to have very little knowledge about his father's political activities and the source of any threat to his father and himself.  This is by itself of little significance since one cannot reasonably expect detailed claims to emerge at such an interview.

   In his statement made on 31 May 2000 after being interviewed by his advisers he referred vaguely to harassment by other parties.  In his interview on 21 June 2000 he referred generally to threats made by members of other parties at election time.  However, they had lessened after the 1997 elections.  I accept that in Indian election campaigns a certain degree of intimidation may occur.  However, there was no evidence of any actual harm suffered in consequence during the more than two years after the 1997 elections.  It was not until the hearing on 16 November 2000 that he made a specific allegation, namely, that the source of the threats was a Jogindher Singh Mann MLA who represented the state seat of Phagwara for the Congress Party.

   This person was defeated in the state elections in 1997 and the seat is now held by Swanar Ramm of the BJP.  The applicant seemed unaware of this and when confronted claimed that the information was false.  The applicant then made the surprising allegation that not only had the Congress MLA accused him of being a supporter for Khalistan Freedom Fighters, but this was in fact true.  This had not featured in any previous statement and his explanation that he was too frightened to tell earlier interviewers is unconvincing.  What is more, the newspaper cutting which he tendered as referring to an incident in which he was accused in being involved does not appear to relate to him and his family at all.

   His claim that his father had been arrested since the applicant left India is equally unconvincing.  He has failed to produce the letter in which he was informed although he claimed to have it at the detention centre.  He has also failed to give me the address of the BSP official who advised him.  As he acknowledged the BSP is essentially a party for the disadvantaged castes of the Hindu religion.  It is not a Sikh based party although I accept that Sikhs can also belong to it.  However, I cannot accept that such a party or a substantial group of its members are likely to be supporters of a Sikh separatist movement.  Whatever may have been the reason for his journey to Australia I do not accept that there is any chance of persecution for a Convention reason should he return to India.”

4. Although the appellant was not represented before the primary judge his solicitors had earlier presented an outline of submissions in which they contended that the decision of the Tribunal was “legally flawed”.  It was said the failure to make a finding on the Khalistan Freedom Fighters issue was an error of law and that there was also a constructive failure to exercise jurisdiction in respect of that issue.  Alternatively, it was said to be implicit that a finding was made on that issue but that no finding was recorded.

5. The primary judge said of that ground:

   “It is clear that the Tribunal did consider the issue of whether the applicant had been a member of the Khalistan Freedom Fighters and made a finding of fact in relation to that.  There is no requirement for the Tribunal to use any particular form of words.  Read in context there is no doubt that the Tribunal did not accept what the applicant said as to that, particularly in the light of the lateness of the allegation made.”

6. After rejecting a number of other matters put forward by the appellant his Honour concluded that he was not satisfied that the appellant has made out any ground for review.

7. The appellant, with the assistance of an interpreter, represented himself on the appeal.  His notice of appeal does not specify any grounds of appeal.  The appellant repeated a claim he made to the primary judge that he had been disadvantaged by having a Hindi, rather than a Punjabi, interpreter.  However, as was pointed out by the primary judge, the appellant did not suggest that there was some particular respect in which the inadequacy of translation resulted in any adverse finding against him.  In any event, the solicitor acting for the appellant had requested a Hindi interpreter at the hearing before the Tribunal (AB 99).  Further, the appellant acknowledged that he spoke Hindi as a second language and had stated that fact in the documents lodged by him with the Department of Immigration and Multicultural Affairs.

8. The appellant also claimed that the Tribunal had not afforded him an opportunity to send written material to it that supported his claims.  The Tribunal, however, stated in its reasons that it had afforded him that opportunity but that, between the date of the hearing on 18 November 2000 and its decision on 8 December 2000, the appellant failed to send any documents to it. The appellant produced two documents to the Full Court – a letter and a map of Khalistan.  The letter he relied upon related, inter alia, to a matter the Tribunal had accepted in the appellant’s favour concerning membership of the BSP.  The appellant did not suggest that the map was before the Tribunal nor did he explain how it related to any error on the part of the Tribunal.

9. Finally, the appellant said that at the conclusion of the hearing before the Tribunal he believed it accepted his statement that he had been identified as an active supporter of the Khalistan Freedom Fighters.  However, in response to a question the appellant said the Tribunal stated at the conclusion of the hearing that it would consider his evidence and hand down its decision in due course.  Even if there was some material which the appellant says supports or demonstrates his support for Khalistan Freedom Fighters that material is only relevant to a factual matter, the correctness of which is the responsibility of the Tribunal.

10. As the appellant has represented himself and, understandably, is not able to present submissions on legal issues, the Court has carefully considered the reasons of the Tribunal and of the primary judge.  We are satisfied that no error of law, or any other reviewable error, was made by the Tribunal or the primary judge.  Accordingly, the primary judge was not in error in dismissing the application for review.  It follows that the appeal is to be dismissed with costs.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Merkel and Allsop.

Associate:

Dated:             26 November 2001

Counsel for the Appellant:	Appellant appeared in person
Counsel for the Respondent:	A A Jenshel
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	26 November 2001
Date of Judgment:	26 November 2001