Singh v Minister for Immigration and Multicultural Affairs
[2001] FCA 714
•6 JUNE 2001
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 714
GURMIT SINGH ALSO KNOWN AS PARAMJIT SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
N 316 OF 2001
LINDGREN J
6 JUNE 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 316 OF 2001
BETWEEN:
GURMIT SINGH ALSO KNOWN AS PARAMJIT SINGH
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
LINDGREN J
DATE OF ORDER:
6 JUNE 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The application be dismissed.
2.The applicant pay the respondent's costs.
3.The applicant have leave to apply for an order setting aside orders 1 and 2 by notice of motion filed by 27 June 2001.
4. Orders 1 and 2 not be entered if such a notice of motion is filed by that date.
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 316 OF 2001
BETWEEN:
GURMIT SINGH ALSO KNOWN AS PARAMJIT SINGH
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
LINDGREN J
DATE:
6 JUNE 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
Section 29 of the Migration Act 1958 (Cth) (“the Act”) provides that subject to the Act, the respondent (“the Minister”) may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or to do both.
The applicant, (“Mr Singh”) applies under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal (“the Tribunal”) affirming a decision of the Minister's delegate (“the Delegate”) not to grant him a protection visa permitting him to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act.
Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. The validity of Mr Singh's application for the protection visa is not in question. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia 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 (compendiously, "the Convention"). Australia is a party to the Convention.
Article 1A(2) of the Convention provides that a refugee is any person who:
“owing to 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 and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
The criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criteria specified in clause 866.221 of Schedule 2 to the Migration Regulations 1994, one of which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.
The Tribunal's decision was a "judicially-reviewable decision" (par 475(1)(b) of the Act); Mr Singh was entitled to apply to this Court for review of it in certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486).
Mr Singh's case is that he is outside the country of his nationality, India, and is unwilling to return to it because of a well-founded fear of being persecuted for reason of political opinion.
PROCEDURAL BACKGROUND
Mr Singh arrived in Australia on 29 October 1998. On 8 January 1999 he applied for a protection visa (subclass 866). The Delegate refused the application on 17 March 1999. On 14 April 1999 Mr Singh applied to the Tribunal for review of the Delegate's decision. The Tribunal conducted a hearing on 19 January 2001. On 13 March 2001 the Tribunal affirmed the Delegate's decision. On 27 March 2001 Mr Singh filed his application in this Court for review of the Tribunal's decision.
REASONS FOR DECISION OF THE TRIBUNAL
In substance, the Tribunal simply had no confidence in Mr Singh as a person whose testimony was deserving of credit. It disbelieved him.
In his application for the protection visa, Mr Singh claimed to be an Indian national of Sikh ethnicity and to have been born on 12 June 1955. He claimed that his true name was “Paramjit Singh” and that he had travelled to Australia on an Indian passport in the name of “Gurmit Singh” which had been issued on 27 January 1990. An Australian tourist visa was granted to “Gurmit Singh” on 15 October 1998. The records showed that “Gurmit Singh” arrived in Australia on 29 October 1998.
Mr Singh claimed to be single man without children and to have been self-employed, helping on his father's farm prior to coming to Australia. He gave his address upon arriving in Australia as a specified address in Lindfield, Sydney.
He claimed he left India because he reasonably believed that if he remained there he would be killed on account of his political activities in that country. He claimed to have been arrested on several occasions for involvement in the Khalistan independence movement. He claimed to have been tortured and to have helped extremists escape from police custody. He said he was imprisoned for one year and two months. He claimed to have been sent to Assam and to have joined the “United Liberation Front of Assam” and the “Khalistan Commando Force”. He also stated that his brother had been imprisoned on a "false case" and that his family had been tortured as part of an attempt to reach him. He said that the attempt of the authorities to reach him had made it necessary for him to escape from India and that he feared he would be persecuted for reason of political opinion if he returned.
According to Mr Singh, the passport on which he left India and came to Australia was a false one in that he was not the Gurmit Singh named in the passport. In support of this allegation, he attached to his application a driver's licence and school certificate in the name of "Paramjit Singh" and other documents. The driver's licence contained a photograph of Mr Singh. He claimed that the passport was not his own.
There was a remarkable turn of events when one, Jaswant Kaur, sent a letter in identical terms to the Minister and to the Head of Onshore Protection in the Department of Immigration & Multicultural Affairs. I will not set out the letter. The allegation made by the writer was that her husband, Gurmit Singh, whose passport number was given as 663981 (the number of the passport on which Mr Singh had travelled to Australia was G663981) had been born 5 January 1960 and was the father of three children aged between 10 years and 13 years. She claimed that her husband, that is, Mr Singh, had left India for Australia on 28 October 1998 without her knowledge and that a woman, Miss Mohinder Kaur, of their village had also gone to Australia. The allegation made in the letter was that Mr Singh and Ms Kaur were living in a de facto marital relationship. The letter alleged that they were living at a specified address in Lindfield. That address was, in fact, the address Mr Singh had given on his application for the protection visa.
As might be expected, the writer of the letter asserted that any claim made by Mr Singh for political asylum was baseless and that he faced no harm if he were to return to India. Indeed, the letter asserted that the sole aim of Mr Singh and Ms Mohinder Kaur was to maintain a relationship in Australia which they could not maintain in India because Mr Singh was known there to be a married man and the father of the writer’s children. The letter enclosed a copy of a marriage certificate in relation to Mr Singh and the writer as well as certain other documents in support of her allegations.
At the interview before the Delegate on 11 March 1999, Mr Singh made a correction to his application for the protection visa, but generally maintained his original claims. For example, he continued to maintain that his true name was Paramjit Singh and that he knew Gurmit Singh personally and had used Gurmit Singh's identification to obtain the passport. He maintained he had never married and that he had no children. The Delegate then confronted Mr Singh with the allegations which had been made in the letter but Mr Singh continued to maintain his claims, asserting that the letter’s allegations were false, although he accepted that the photograph sent with the letter was of him and he could offer no explanation as to why the writer of the letter would falsely claim to be his wife.
On 18 January 2001, the day before the hearing before the Tribunal, the Tribunal received a fax enclosing a signed statutory declaration by “Gurmit Singh”. The declaration said this was the declarant’s true name and that he had been told by a friend to use the false name “Paramjit Singh”.
On the hearing before the Tribunal, Mr Singh was told that the Presiding Member had read an application for a protection visa made by Mohinder Kaur and the unfavourable decision on that application. Mr Singh then made a number of admissions. According to the Tribunal, these included the following:
“*Confirmation of the admission in his statement of the previous day that his real identity was Gurmit Singh and that his passport was genuine;
*That his date of birth date 5 January 1960 and not 12 June 1955 as stated in his primary application;
*Paramjit Singh is a friend of the Applicant;
*The statement in his primary application that he had never married was untrue. He was a married man, having married Jaswant Kaur in 1983;
*There were, in fact, three children by his marriage to Jaswant Kaur, Bkramji, Pamelbreet and Prabjot;
*the documents he had produced with his primary application did not relate to him but to Paramjit Singh or the brother of Paramjit Singh;
*the driver’s licence he had produced was a fake document obtained by a friend in India after the Applicant arrived in Australia;
*he had known Mohinder Kaur for between 14 and 20 years. Early in 1998 it was agreed that the Applicant and Mohinder Kaur would leave India, they were able to come to Australia and the Applicant did provide financial assistance to Mohinder Kaur to enable her to come to Australia it being agreed that the Applicant would follow as soon as he could;
*The Applicant joined Mohinder Kaur upon his arrival in Australia and she is his de facto wife.
*The Applicant and Mohinder Kaur have a son Jason born 19 December 1999;
*The Applicant had lodged his application in the name of Parmjit Singh because he did not want any one to know, especially his wife’s brother to know that he was in Australia;
*he was not a self employed farmer as he had stated in his application. He had been a sales representative for a tea company for many years and had also done some part time work as a chef;
*His involvement with the Khalistan movement was limited to acting as a driver and courier for Dr. Sohan Singh, a maternal uncle. He had commenced this work on a part time basis in about 1990 and this continued until 1992;
*his claims about his arrest in West Bengal, his being jailed and the gun battle between Sikhs and police were all untrue;
*he claim that his younger brother had been jailed because of his activity and his claim that family members had been tortured were untrue;
*he had not read the statement sent to the Tribunal by facsimile transmission the afternoon before the hearing. The document had been prepared by another person and he had just signed it. His statements about his being in Assam and a member of ULFA were untrue;
*he had been living with Mohinder Kaur since he arrived in Australia;
*he had lied to the interviewing officer from the Department about his marriage and his involvement with Sikh terrorist organisation, he was scared at the time of the interview;”
The Tribunal noted that Mr Singh raised two new claims at the hearing. In summary, these were as follows:
1.Mr Singh claimed that for about two years he had worked as a courier for Dr Sohan Singh of the “Panthic movement” which was seeking independence for Khalistan. The substance of this claim was that as a result of his ceasing to work for Dr Singh in 1992, Mr Singh was regarded by Dr Singh as disloyal, that Dr Singh remained a powerful political force and that he, Mr Singh, faced revenge from Dr Singh and those loyal to him, if he, Mr Singh, were to return to India;
2.Mr Singh claimed he feared revenge from his wife’s brothers if he returned to India because of his now admitted relationship with Mohinder Kaur. Indeed, he claimed that his wife’s brothers had already killed another relative.
The Tribunal pointed out what is obvious, that is, that the second alleged fear was not for a Convention reason and was of no assistance to Mr Singh.
The Tribunal thought that a central issue in the case was the credibility of Mr Singh. It concluded that he was an Indian national but had no hesitation in finding that he did not even have a genuine subjective fear of persecution at the hands of either the Indian authorities or the organisations of which he had claimed to be a member. In relation to his claimed fear of Dr Singh, the Tribunal concluded that there was not a real chance that Dr Singh would seek revenge in 2001 for Mr Singh's conduct in the earlier 1990s limited to declining to do further work for Dr Singh.
The Tribunal examined independent country information in relation to Dr Singh. It accepted that "few men in India in the early 1990s would have been as dangerous as Dr Sohan Singh", that Dr Singh had controlled various militant pro-Khalistani organisations and that "an order to kill from him would bring about one's almost immediate demise". But the Tribunal considered that if Dr Singh had been displeased with Mr Singh for his "disloyalty", Mr Singh would have been killed long ago. As well, the Tribunal noted that Dr Singh is now (or was at the time of the decision) 79 or 80 years of age and in precarious health and was involved in "mainstream politics". The Tribunal did not find it plausible in all the circumstances that Dr Singh would at this late stage seek to harm Mr Singh.
THE PRESENT APPLICATION FOR AN ORDER OF REVIEW
In the application by which he commenced this proceeding, Mr Singh did not identify any ground of review on which he relied, stating only "details will be sent later". On the hearing this afternoon, Mr Singh has, in substance, asked me to come to different factual conclusions from those reached by the Tribunal. I am not at liberty to do so. It was clearly open to the Tribunal to reach its various factual conclusions.
Mr Singh participated in the pilot “RRT review legal advice scheme” conducted by arrangement between the Department of Immigration & Multicultural Affairs and the New South Wales Bar Association. He and a barrister participating in that scheme were notified in the usual manner by the District Registrar of the Court on 2 April last.
At the beginning of the hearing today, Mr Singh said there had been contact between the barrister and himself and that the barrister was to confer with him at the Immigration Detention Centre at Villawood but that the conference did not eventuate, with the result that he has not had the benefit of legal advice. I asked Mr Singh whether he wished to apply for an adjournment and he said he did. The application for the adjournment was opposed by counsel for the Minister. I declined the application because, in the first place, even if Mr Singh had had the advice, that would not have altered the fact that he would be unrepresented on the hearing this afternoon; and, secondly, because, in any event, my reading of the papers indicated that the application was doomed to fail.
However, I said that if I adhered to that view, I would make an order that the order of dismissal should not be entered for a period and that there should be reserved to Mr Singh an opportunity to apply by notice of motion within that period for a setting aside of the order of dismissal. I will follow that course.
CONCLUSION
The Court orders that:
1.The application be dismissed;
2.The applicant pay the respondent's costs;
3.The applicant have leave to apply for an order setting aside orders 1 and 2 by notice of motion filed by 27 June 2001;
4. Orders 1 and 2 not be entered if such a notice of motion is filed by that date.
I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate:
Dated: 13 June 2001
The applicant appeared in person. Counsel for the Respondent: Mr M J Leeming Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 6 June 2001 Date of Judgment: 6 June 2001
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