Singh v Minister for Immigration and Multicultural Affairs

[2001] FCA 214

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 214

MIGRATION – application for a protection visa – review of decision of Refugee Review Tribunal – whether failure to make findings on material questions of fact – whether s 430(1)(b) obliges the Refugee Review Tribunal to make a positive finding as to whether an event occurred or not

Migration Act 1958 (Cth) s 430(1)(b), s 476(1)(a), s 476(1)(e)

Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24 cited
Minister for Immigration & Multicultural Affairsv Singh (2000) 175 ALR 503 cited
Minister for Immigration & Multicultural Affairsv Wu Shan Liang (1996) 185 CLR 259 at 272 cited

SANTOKH SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 1109 OF 2000

HELY J
21 MARCH 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1109 OF 2000

BETWEEN:	SANTOKH SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE OF ORDER:	21 MARCH 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application for review 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 1109 OF 2000

BETWEEN:	SANTOKH SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	HELY J
DATE:	21 MARCH 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on a student visa on 10 June 1998.  The applicant applied for a protection visa on 13 November 1998.  The applicant claims that he cannot return to India because he has a well-founded fear of persecution by the authorities as a result of activities which his family, as members of the Sikh community, engaged in against the Indian government.

2. The application was refused by the Minister’s delegate, and the applicant sought review of that decision by the Refugee Review Tribunal (“RRT”).  On 17 July 2000 RRT wrote to the applicant informing him that the Tribunal had looked at all the material relating to his application, but was not prepared to make a favourable decision on that information alone.  Accordingly, the applicant was invited to attend a hearing of the Tribunal at 2.30 pm on 30 August 2000 to give oral evidence and present arguments in support of his claim.

3. The applicant did not attend the hearing.  He has not given any reason for his failure to appear.

4. On 31 August 2000 RRT affirmed the decision not to grant a protection visa.  RRT found that:

   -the applicant’s claims, as set forth in a statutory declaration lodged in support of his claim “are so general and lacking in detail that the Tribunal is unable to establish the relevant facts”.  Had the applicant attended the hearing, RRT would have asked him to provide further details “concerning all aspects of his claims”;

   -the fact that the applicant was able to leave India legally, travelling on his own passport, indicated that the authorities had no real interest in him;

   -the applicant’s claims that his family were persecuted by reason of their membership of the Sikh community was at odds with the independent evidence, which was to the effect that the human rights situation in the Punjab has improved considerably over the last five years;

   -since the applicant is not a “militant”, did not suffer persecution himself and did not have a high political profile in India, the chance that he would be persecuted in India for a Convention reason is remote.

   The RRT was thus not satisfied that the applicant had a well-founded fear of persecution within the meaning of the Convention.

5. Had the applicant attended the hearing, RRT said that it would have enquired about his involvement in the Khalistan Freedom Movement (RD 117) and whether relocation was a reasonable option for him, as the independent evidence suggested that it is reasonable for Sikhs to relocate to other parts of India.

6. The applicant seeks an order of review of RRT’s decision on the ground that RRT failed to make findings on a number of material facts, contrary to s 430(1)(c) and s 476(1)(a) of the Act.

7. RRT recited the full text of the applicant’s statutory declaration lodged in support of his claim in its decision.  For ease of reference the statutory declaration is reproduced as an appendix to this decision.  The applicant contends that all of the “facts” declared there are material to the applicant’s claim to have a well-founded fear of persecution if he returned to India, yet RRT made no findings in relation to any of them.

8. In particular, it is submitted that pars 15-18 are quite specific claims as to matters which have occurred since the applicant’s arrival in Australia which, if accepted, make good the claims in par 19, whatever may have been the position in June 1998 when the applicant left India.

9. One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed: Paramananthan v Minister for Immigration & Multicultural Affairs (1998) 160 ALR 24. Fundamentally, the reasons need to reveal to the parties why the decision went the way it did: Minister for Immigration & Multicultural Affairs v Singh (2000) 175 ALR 503. If one of the reasons for failure is that RRT rejected a significant factual claim, then RRT must say so, and indicate the factual material on which the adverse finding is based: Paramananthan (supra) at 31, Singh (supra) at [46].

10. The way in which the applicant put his case to RRT was such that the central issue for determination by RRT was whether the applicant had a well founded fear of persecution should he return to India by reason of his father’s activities on behalf of the Sikh separatist movement.

11. RRT dealt with that case in two ways.  First, it concluded that the information supplied by the applicant in support of his claim was so general and lacking in detail that RRT could not be satisfied that this was so.  The applicant did not attend a hearing to improve upon the case presented “on the papers”.  Second, information otherwise available to RRT satisfied it that Sikhs such as the applicant were not exposed to a real risk of persecution.

12. In construing RRT’s reasons, it is wrong to approach them with an eye keenly attuned to the perception of error: Minister for Immigration & Multicultural Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. RRT’s first finding did not involve a rejection of the claims made by the applicant in his statutory declaration in the sense that it found those claims to be false or without foundation. A fair reading of RRT’s reasons is that it concluded that the applicant’s claims, both before he left India and afterwards, as expressed in his statutory declaration, are so general and lacking in detail that RRT could not be satisfied as to the facts, on the basis of claims couched in that way. Thus it could not be satisfied, on the basis of the applicant’s statutory declaration, that the applicant met the criterion for the grant of a protection visa.

13. To some extent, there is an apparent tension between the first finding referred to in par 4 above, and the second, third and fourth findings, because in the latter findings RRT finds “facts” which are adverse to the applicant’s claim.  This tension may be more apparent than real, as those findings were largely based on matters not dependent upon the statutory declaration.

14. Whilst RRT does not deal with the statutory declaration paragraph by paragraph, its findings meet the essential thrust of the applicant’s claim, and explain why the decision went as it did.

15. The applicant also submitted that s 430(1)(b) obliged RRT to make a positive finding as to whether or not each “fact” relied upon by the applicant to support his claim was established or not. In my view, it would be wrong to treat s 430(1)(b) as obliging RRT to make a positive finding as to whether a particular event occurred or not, if in fact RRT’s conclusion is that the information supplied by the applicant is so general and lacking in detail that RRT is unable to establish the relevant facts. That is particularly the case where, as in this instance, the applicant does not provide first-hand information as to the occurrence of events after he left India, but recites things he has read or was told about the event in question.

16. The applicant has not established a failure to comply with s 430. Nevertheless, if the conclusion reached by RRT as to the insufficiency of the declaration otherwise involved an error of law, then the operation of s 476(1)(a) or (e) might be attracted.

17. RRT’s decision as to the insufficiency of the statutory declaration would only involve an error of law if the only conclusion reasonably available is that the declaration does not have the deficiencies which RRT attributed to it.  It would not be sufficient to establish that another mind might come to a different conclusion on this question.  Nor would it be sufficient to establish that if the Court had to assess the sufficiency of the declaration, it would have come to a different conclusion.

18. The bases for, and sources of, the information contained in the declaration are not set out.  Little is given by way of detail.  A letter from an unidentified friend of the applicant’s father asserts that he was involved in a “noble cause”, but does not describe the nature of his activities.  Paragraphs 17 and 18 are the high water mark of the applicant’s case, at least insofar as events subsequent to his departure from India are concerned.  Whether or not the information contained in those paragraphs is “so general and lacking in detail” as to be an unreliable foundation for fact finding is, to my mind, a matter on which opinions might reasonably differ.  It was therefore open to RRT to come to the conclusion which it did.

19. The application for review should be dismissed with costs.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.

Associate:

Dated:             21 March 2001

Solicitor for the Applicant:	Michael Jones
Counsel for the Respondent:	Dean Jordan
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	7 March 2001
Date of Judgment:	21 March 2001

APPENDIX

STATUTORY DECLARATION

I, Santokh Singh of 75A Hawkins Road, Yoogali in the State of New South Wales do Solemnly and sincerely DECLARE that:

1.My name is Santokh Singh.

2.I was born on 1 March 1979 in Kolianwal, Jalandhar, Punjab, India.

3.I am a citizen of India and have no other nationality.

4.I have completed my secondary studies in 1997 and then I arrived in Australia on 10 June 1998 to pursue further studies in Information Technology.

5.I belong to the Sikh Community.  My family took an active role in the early 80’s uprisal of the Sikh armed struggle seeking the independence of the Sikh State.  During this struggle my grand-father and my mother both lost their lives.  My father, Mahinder Singh had joined the Khalistan Freedom Movement in 1983.  His role was to transport military supplies to the Sikh Militants who fought against the rule of Indian Authority in the northern province of Punjab.

6.My father also became a follower of the Sikh spiritual leader, Jant Jarnail Singh Brendrawali.

7.In September 1986 my father was arrested by the Punjabi Police for the alleged participation in subversive activities against the State.  My father was released, apparently nothing was found against him to prove the police allegation.

8.In December 1987 my father went to Rajisthan, where he started preaching Sikh religion to the KCF (Khalistan Command Force) youths who were stationed in the mountains in Kotee, Rajasthan.  My father taught Sikh youths about the history of sovereignty and their statehood in the past.

9.In February 1998 my father gave up his service at the KFC following the arrest of his brother Joginder Singh and subsequent disappearance.  My father tried every possible avenue he could to find out about his brother’s whereabouts.  Unfortunately his entire efforts were in vain.

10.My father suffered depression apparently he resigned from KCF in 1990.  However, he continued preaching Sikhism and to work with the Gruedwaras.

11.In October 1994 I was admitted to Sikh (Khalistan) studies, this was part of the educational program proposed to those Sikh youths that intended to go abroad.  The objective of this program was to create a network of Sikh students in various countries.

12.I have attended this institution for two years.  In 1996 I obtained my passport but still continued formal studies at school.

13.In early 1997 my father had recommenced his pro-Khalistan activities, he was contacted by the senior leaders of the Khalistan Freedom Movement, they asked that he join the Sikh cause.  My father declined the offer, basically because of his psychiatric condition and in view of the fact that our family had already suffered great losses and he could not continue further.  However, my father was then asked to go to the Jamu & Kashmir region.  Apparently, my father went to the northern state without describing the exact nature of his activities.

14.In June 1998 I came to Australia with the intention of furthering my education and working for the Khalistan movement.

15.In July 1998 I received a letter from a friend of my father’s who stated that my father had gone to Pakistan and he can not be contacted.  The letter said that my father was involved in a noble cause, however, he did not describe the nature of his activities.

16.In August 1998 I received a letter from a family relative in which he wrote that my father was helping Kashmir insurgents in the northern state of Jamu and Kashmir.  This letter also mentioned it was a part of Sikh strategy to assist Kashmir militants.  It is said that my father was transported from Punjab to Kashmir.  The reason indicated for this is that the border between India and Pakistan, in the Kashmir region is heavily patrolled by the Indian Border Security Force (BSF).  This letter clearly indicated to me about the nature of my father’s activity.

17.On   I received a telegram and subsequent telephone call that my father was apprehended by the Special Branch for the importation of arms and explosives from Pakistan and for his connection with the Kashmir separatist militants.

18.I have contacted my family and friends over the phone.  I have been told that because of my father’s arrest the Crime Branch has taken my Uncle and a cousin in for questioning.  The plight of my father is not known.  My father has been arrested in Jamu; this has been forwarded by the investigation authorities.

19.In view of the above I cannot return to India.  I have a well-founded fear of persecution by the authorities.