Singh v Minister for Immigration and Multicultural Affairs
[2001] FCA 390
•6 APRIL 2001
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Multicultural Affairs
[2001] FCA 390IMMIGRATION – application for review of decision of Refugee Review Tribunal – Applicant found to be member of ISYF and AISSF – whether RRT failed to make material findings of fact – where found that ISYF and AISSF of no interest to authorities – only terrorists and militants are persecuted – whether RRT made finding that ISYF a terrorist or militant organisation – finding implicit in decision – overriding importance of activities of Applicant rather than organisation he is a member thereof – whether activities in Australia gave rise to a sur place claim.
Migration Act1958 (Cth) ss 430(1)(c), 430(1)(d), 476(1)(a) and 476(1)(e)
Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 referred to
Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 referred to
Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405 referred toKASHMIR SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1139 OF 2000
CONTI J
6 APRIL 2001
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
N 1139 OF 2000
BETWEEN:
KASHMIR SINGH
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
CONTI J
DATE OF ORDER:
6 APRIL 2001
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The Application be dismissed.
2. The Applicant pay the costs of the Respondent.
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 1139 OF 2000
BETWEEN:
KASHMIR SINGH
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
CONTI J
DATE:
6 APRIL 2001
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Application for Review
The Application for Review is brought against the decision of the Refugee Review Tribunal (“RRT”) made on 8 September 2000, whereby the RRT affirmed the decision of the delegate of the Minister not to grant the Applicant a protection visa, because as in the case of the delegate, the RRT was not satisfied that the Applicant was a Refugee within the Convention definition. The Applicant was represented by a migration agent when his Application was before the RRT. He had the benefit of Counsel representing him on a direct access basis in the present Application.
The form of the Application for Review states that the Applicant was aggrieved for the reasons that he was denied a protection visa. The grounds of the Application for Review are specified as follows:
“Ground 1
1.The Tribunal failed to observe procedures it was required to observe by the Act (s 476(1)(a) and s 430(1)(c)).
Particulars
1.1The Tribunal failed to make a material finding of fact in relation to the Applicant’s claim that he was engaged with his IYSF colleagues Baljinder Singh and Dhian Singh in the common enterprise that led to their arrest in February 1998.
1.2The Tribunal failed to make a material finding of fact in relation to the accuracy of Indian newspaper reports that indicated that the IYSF was perceived to be a terrorist group, operative within India and abroad.
1.3The Tribunal failed to make a material finding of fact in relation to whether or not the Applicant’s protest in Australia under the auspices of the IYSF gave rise to a sur place claim.
Ground 2
2.The Tribunal erred in law (s 476(1)(e)).
Particulars
2.1The Tribunal misinterpreted the applicable law in relation to the Applicant’s sur place claim.”
For ease of reference I set out the respective provisions ss 430(1)(c), 476(1)(a) and 476(1)(e).
“430Refugee Review Tribunal to record its decisions etc
(1)Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:
(c)sets out the findings on any material questions of fact;
476Application for Review
(1)Subject to subsection (2), application may be made for review by the Federal Court of the judicially – reviewable decision on any one or more of the following grounds:
(a)that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
…
(e)that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
…”
Factual background
The narrative of this segment has been mainly extracted from the evidence which was recorded by the RRT as having been presented to it by the Applicant. The Applicant is a Sikh who is an Indian national of 40 years of age. He is married and his wife and other family members still reside in the Punjab in India. During the time he lived in India the Applicant undertook secondary school education. Upon the completion of his studies he worked as a skilled trades person. The Applicant arrived in Australia on a visitor’s visa on 4 December 1999 and on 5 January 2000 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.
The Department’s file placed before the RRT contained a substantial amount of country information concerning the political situation in the Punjab tracing back to the early 1990s. The Applicant presented his case by way of oral evidence at the hearing before the RRT, during which he was assisted by an interpreter in the Punjabi language. After the conclusion of the RRT hearing, the Applicant’s migration agent lodged a submission with a number of attachments to the RRT.
The Applicant’s principal claims are extracted on pages 5 and 6 of the RRT Decision. In summary, the case which the Applicant presented to the RRT was to the effect that he was involved with the International Sikh Youth Federation (ISYF). The ISYF is the overseas branch of the All India Sikh Student Federation (AISSF). It is an international organisation which has been active in India. The Applicant claimed that from the mid-1980s he assisted the ISYF. He acknowledged however that he did not formally join the same until the early 1990s. Although there is some confusion in his account relating to his involvement with the ISYF and the AISSF, it would appear from page 3 of his written submissions placed before the RRT, that he was also associated with the AISSF around the time of his involvement with the IYSF. He claimed that he attended demonstrations held under the auspices of these organisations, and that his main task for the ISYF was in disseminating information throughout the Punjab. On one occasion in the late 1990s, the Applicant asserted that he and two ISYF colleagues were arrested in relation to material information they had taken to a Sikh temple on behalf of the ‘Federation’. I note from the RRT’s findings that the ‘Federation’ means the AISSF. After his arrest, and whilst he was in Punjab, he claimed that he was not only detained but also tortured for a period extending one week. The Applicant also claimed that the relevant authorities attempted to implicate him in several illegal activities, but local villagers arranged for his release on bail. As a consequence of the unfolding of such events, the Applicant’s political colleagues advised him to leave India.
Since the Applicant’s departure from India, he claims that his wife and other family members have been subjected to harassment at the hands of the relevant authorities as a result of his association with both the ISYF and AISSF. His wife is said to have been detained by them on several occasions, his father tortured and his brother has gone missing. As a result, the Applicant claimed that he is under significant mental stress. He also claimed that the present government is a tool of the Bharatiya Janata Party (BJP), and that the true situation in Punjab has been seriously misrepresented by the relevant authorities. He referred the Tribunal to the death of 36 Sikhs in Kashmir last year and argued that the government was in fact responsible for this atrocity. As a consequence of this horrific event, the Applicant voiced his protest against the atrocity by attending an ISYF demonstration in Australia. The Applicant further claimed that he remains active as a member of that group in Australia. A Sikh friend of the Applicant gave evidence to the RRT that the Applicant arrived in Australia some years ago, and had recently made a return visit to India. This person also said that the Applicant had a mental problem for the past few months, and that his memory of events has become unreliable.
The RRT’s Decision
The RRT expressed a lack of satisfaction that the Applicant had a well-founded fear of persecution for a Convention reason, and found that he was not a refugee within the Convention definition. In so doing, the RRT rejected the credibility of at least most of the claims advanced by the Applicant concerning the issue of alleged persecution, and of fear of further persecution if returned to India. The findings and reasons for the RRT’s Decision the subject of review may be summarised, albeit not exhaustively, as follows:
(i)The RRT accepted that the Applicant assisted the ISYF from the mid 1980’s, and that he later became a member of the same. It also accepted that the Applicant was associated with its Indian-based equivalent, namely the AISSF;
(ii)The RRT accepted that the Applicant attended demonstrations in Australia under the auspices of the ISYF;
(iii)Although the Applicant was found to have disseminated information on behalf of the AISSF, the RRT rejected the claim that the Applicant and his colleagues were arrested for certain activities relating to their association with the AISSF. Country information in the possession of the RRT indicated that the AISSF operates openly within the political mainstream in India, and that the activities of the ISYF and AISSF would be of little interest to the relevant authorities;
(iv)The RRT rejected the claim that the relevant authorities tried to implicate the Applicant in several illegal activities. The Applicant’s low political profile, the absence of any charges laid against him, and the Applicant’s ability to freely depart from India, combined to render such claims incredible;
(v)Although the political situation in the Punjab was volatile some years ago, there has been since 1993 a substantial change in the political climate, and in the treatment of Sikhs in the Punjab and in India generally. By reason of the political resolution of problems in Punjab and the low political profile of the Applicant, neither his religion nor political opinion, nor his association with the ISYF and AISSF, would be of even remote official interest to the relevant authorities;
(vi)Since the early to mid 1990’s, the indiscriminate violence of both the authorities and some Sikhs in the pursuit of their respective aims has dissipated, and has been replaced by circumstances whereby the relevant authorities target those people suspected of being militants, or who have some established history of terrorist associations. The Applicant did not establish that he is such a person, or would be so perceived by the relevant authorities; and
(vii)Although the Applicant is an active member of the ISYF in Australia, in light of the Applicant’s low political profile, of the unlikelihood of the relevant authorities knowing of his whereabouts, and of the relevant country information, it is implausible that if he returned to India, the Applicant would be subjected to any real chance of persecution because of his former or current political activities, or would have any well-founded fear of persecution.
The Applicant’s submissions regarding Particulars 1.1 of Ground 1
The Applicant submitted that the RRT erred in failing to find that it was the Applicant’s association and involvement with the AISSF and his ISYF colleagues that led to his arrest, and that although the RRT need not have accepted some of the claims regarding his being detained and tortured after his arrest, the RRT’s failure to make the above finding contravened s 476(1)(a) and s 430(1)(c). I do not accept the substance of this submission and I refer in particular to the following finding of the RRT:
“… while accepting that the applicant might have occasionally disseminated certain materials for the AISSF it does not accept, particularly in light of the following country information, that the AISSF operated openly within the political mainstream, that he or (sic) colleagues were arrested in the late 1990’s in relation to such matters.”
Moreover the RRT found that the Applicant’s claim as to being arrested in the late 1990’s was not plausible, and the country information relied on by the RRT demonstrated that there had been a substantial change in the political climate in India, and in the Punjab in particular, so much so that political activism on the part of the ISYF and the AISSF at the material times had been so insubstantial as to attract only insignificant attention by the relevant authorities. Given the Applicant’s role in these related organisations, namely attending demonstrations and assisting the dissemination of certain materials, the RRT considered that it was unacceptable that the Applicant was in fact arrested for such conduct against the background of a stabilised political environment. Accordingly this submission must be rejected.
The Applicant’s submissions regarding Particulars 1.2 of Ground 1
It was submitted that the RRT erred in failing to make a finding in relation to the content of newspaper articles which suggested that the ISYF was considered to be a militant or terrorist organisation. The need for such a finding was said to reside in the fact that militant or terrorist groups in India experience persecution at the hands of the relevant authorities. The Applicant’s fear of persecution by the relevant authorities arising out of his association with the ISYF and AISSF was examined in detail by the RRT. The RRT’s reasoning process on this issue began with a consideration as to whether or not persons associated with the ISYF and AISSF would attract adverse attention from the relevant authorities. The RRT referred to various sources of country information bearing upon such an issue. In its Decision, the RRT acknowledged that in the late 1980’s and early 1990’s, there was considerable political and religious-based violence in the Punjab. More recent reports from about 1993 onwards demonstrated to the RRT however that the level of general unrest in the Punjab had significantly reduced, and that such has been the political context in the late 1990’s that the AISSF (although banned from political activity in 1984-5) has been able to operate openly within the political mainstream. Furthermore, there is no question of the ISYF being banned from political activity in India. Both the AISSF and ISYF have been federations of insignificant interest to the Indian authorities at least since 1996. Accordingly the RRT found that the chances of the Applicant being of any official interest to the relevant authorities by reason of his religion and political opinion were utterly remote.
The RRT acknowledged that there remained in India certain groups who are still targeted by relevant authorities. Such groups comprise or involve suspected militants who have an established history of terrorist associations. This finding was based on a DFAT report of 7 October 1998, which stated that only members of clandestine and illegal groups known as pro-Khalistani, who are regarded by the relevant authorities as militants and terrorists, and may occasion human rights abuses in India. The RRT however concluded, in light of the country information and the Applicant’s political profile, that the Applicant is not such a person who ‘is so perceived by the relevant authorities’. Accordingly the Applicant does not face a real chance of persecution for a Convention reason. Where the RRT referred to the Applicant’s political profile, it is clear that this related merely to his association with the ISYF and the AISSF.
I do not think that the RRT was required to make a finding in relation to what I might describe as a globalised question, namely, whether or not the ISYF was at any material time a militant or terrorist group per se. When I use the word ‘globalised’, it seems to me that the question as to whether or not the ISYF (and/or its related organisation AISSF) was a militant group was not a material question of fact in the circumstance of the case before the RRT. The material question was whether or not the Applicant, by reason of his political involvement with the ISYF was perceived by the relevant authorities as a terrorist or militant. The RRT found that in light of the evidence (namely the country information, the Applicant’s insignificant level of participation in political activities and his capacity to depart from India by normal and conventional means), the Applicant’s activities associated with the ISYF were not of such a kind as to expose him to being identified as a militant or terrorist, nor to him being perceived by the relevant authorities as such. Even if, contrary to my foregoing view, that this was not a material question of fact, it is implicit in the RRT’s reasoning that IYSF is not a militant nor terrorist organisation, since it is able to presently engage in its activities without attracting attention from the relevant authorities. I observe that the RRT is not necessarily bound to making explicit findings as to given matter of materiality, where a finding actually made implicitly concludes in substance upon such matter: see Minister for Immigration and Multicultural Affairs v Sing (2000) 98 FCR 469 at 483-4 per Black CJ, Sundberg, Katz and Hely JJ and Rahman v Minister for Immigration and Multicultural Affairs [2000] FCA 1277 at [25] per French J. It follows that the asserted failure to comply with s 430(1)(c) has not been made out.
The Applicant’s submissions regarding Particulars 1.3 of Ground 1
The Applicant also contended that the RRT failed to make a finding in relation to whether the Applicant’s political activities in Australia, namely his attendance at an ISYF protest last year against the death of some 36 Sikhs, and his active membership with the ISYF in Australia, gave rise to a sur place claim. It is well accepted that a person making claims for refugee status is entitled to protection under Article 1A of the Convention upon the occurrence of a material change in relevant conditions previously prevailing in the country of his or her origin whilst such a person is outside his or her country. In Minister for Immigration and Multicultural Affairs v Mohammed (2000) 98 FCR 405 at 412, French J said:
“Turning back to the terms of the Convention, Art 1A is sufficiently widely expressed to allow for claims of refugee status which derive from events occurring while the claimant is outside the country or origin. Persons making claims based on such events, designated generally as “refugees sur place”, may seek protection based upon post-departure change of circumstances or dramatic intensification of existing conditions in the country of origin or because of the consequences of their own activities while abroad: J.C. Hathaway, the Law of Refugee Status (1991), pp 33-34. It is a particular application of that general proposition and of the ordinary meaning of Art 1A(2) that political opinion, wherever and however expressed may give rise to a well-founded fear of persecution in the country of nationality which will attract Convention protection. This is not a controversial proposition. It is well recognised in writings on the topic and in authority: A Grahl-Madsen, The Status of Refugees in International Law (1966), Vol 1, p.248; Hathaway, p 33; United Nations High Commission on Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (1992), par 96; Somaghi at 116.
Articles 1A, 1F and 33 are silent on whether a person’s entitlement to protection as a refugee sur place because of activities abroad is conditioned by a requirement that they be engaged in good faith and not for the purpose of generating the very conditions which would otherwise give rise to the entitlement. The UNHCR Handbook says nothing explicit about the issue leaving it to the careful application of the words of the Convention to determine the question of status as a refugee sur place:
“96.A person may become a refugee ‘sur place’ as a result of his own actions, such as associating with refugees already recognised, or expressing his political views in his country of residence. Whether such actions are sufficient to justify a well-founded fear of persecution must be determined by a careful examination of the circumstances. Regard should be had in particular to whether such actions may have come to the notice of the authorities of the person’s country of origin and how they are likely to be viewed by those authorities.””
The RRT in its reasons maintained the view that although the Applicant is presently active in Australia as a member of the ISYF, his ‘current’ political activities did not place him at risk of persecution. Such a finding was no doubt warranted in light of the various sources of country information referred to by the RRT which gave rise to the finding that the political situation in Punjab has significantly settled in recent times, and that the conduct of the ISYF was of little interest to the relevant authorities (see DFAT cablegram ND256 of 3 January 1996). The submission that the Applicant’s circumstances have given rise to a sur place claim against the backdrop of relevant circumstances in Punjab said to have been found by the RRT cannot be accepted. Consequently this submission as to the existence of a viable sur place status has not been made out.
Ground 2
Finally, the Applicant contended that the RRT failed to comply with s 430(1)(e) of the Act, in that it misinterpreted the applicable law in relation to the Applicant’s sur place claim. In light of the principles referred to in [13] above, no such error on the part of the RRT has been demonstrated. The Applicant’s current activities as a member of the ISYF, and the relationship of ISYF with AISSF, were addressed by the RRT, and the RRT did not fail to examine and consider whatever impact that such activities might cause in terms of any real chance of persecution existing as at the time of the RRT’s determination of the Applicant’s claim. In light of the abundance of reasonably contemporary country information which the RRT addressed, and of the nature and extent of the activities engaged in by the Applicant in Australia, it was well open to the RRT to find that he does not have, nor has had at any material time, a well-founded fear of persecution. There has not occurred any error of law on the RRT’s part by reference to Ground 2.
The Application should be dismissed with costs.
I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.
Associate:
Dated: 6 April 2001
Counsel for the Applicant:
Mr C Jackson
Counsel for the Respondent:
Mr D Godwin
Solicitor for the Respondent:
Sparke Helmore
Date of Hearing:
8 March 2001
Date of Judgment:
6 April 2001
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