Singh v Minister for Immigration and Multicultural Affairs

[2000] FCA 1813

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1813

APPLICATION – application for a protection visa – appeal from decision of Refugee Review Tribunal – whether decision involved an error of law – consideration of use of “what if I am wrong?” test

Migration Act 1958 (Cth) s 476(1)(e)

Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 followed
Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 considered
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 followed
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572, 575-576 followed

KULDIP SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 343 OF 2000

STONE J
12 DECEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 343 OF 2000

BETWEEN:	KULDIP SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	12 DECEMBER 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs of the application.

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 343 OF 2000

BETWEEN:	KULDIP SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	12 DECEMBER 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1. The applicant, Mr Kuldip Singh, applied to the respondent (“the Minister”) for a protection visa to remain in Australia. The Minister’s delegate (“Delegate”) refused his application. The Refugee Review Tribunal (“Tribunal”) upheld this refusal. Mr Singh now applies under s 476(1) of the Migration Act1958 (Cth) (“the Act”) for review of the Tribunal’s decision.

2. After considering a valid application for a visa and being satisfied that the criteria in s 65 of the Act have been met, the Minister may grant visas to remain in Australia. 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.

3. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant 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”).  As a party to the Convention, Australia has undertaken protection obligations to a person who is a “refugee” as defined in the Convention.

4. 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.”

5. Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention.

6. The Tribunal’s decision is a “judicially reviewable decision” (s 475(1)(b) of the Act); the Applicant was entitled to apply to this Court for review of it on 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).

   PROCEDURAL BACKGROUND

7. Mr Singh’s Indian passport was issued on 20 December 1995 and is valid for ten years. He was issued an Australian temporary business visa in New Delhi on 15 September 1997. The temporary business visa was valid for one month and permitted a single visit to Australia for a period of one month from the date of arrival. Mr Singh arrived in Australia on 15 October 1997. On 14 November 1997, he lodged an application for a protection visa (visa sub-class 866). The Delegate refused the application on 9 December 1997. On 7 January 1998, Mr Singh applied to the Tribunal for review of the Delegate’s decision. The Tribunal conducted a hearing on 12 July 1999. On 16 March 2000, the Tribunal affirmed the Delegate’s decision. On 12 April 2000, Mr Singh filed an application in this Court for review of the Tribunal’s decision.

   THE REASONS FOR DECISION OF THE TRIBUNAL

8. The Tribunal commenced its reasons for decision by referring to the procedural background, the legislative framework and the law relating to the Convention definition of a “refugee”.  It then turned to consider Mr Singh’s claims and evidence.

   Claims and evidence

9. Mr Singh is a Sikh, 37 years old and married with three children. His wife and children live in Chandigarh, India. Mr Singh’s parents sometimes live in their village, Kalewal in District Fatehgarh Saheb, and sometimes with his wife and children in Chandigarh. From 1985, Mr Singh lived with his holy man near his village. After 1985, Mr Singh stayed sometimes with his holy man and sometimes in his village. Mr Singh claims that, immediately prior to leaving for Australia, he lived in different places with relatives as a result of police harassment.

10. The applicant claimed that his parents were very religious and were members of the Akali Dal (Badal) group. The Applicant claimed that in 1980 he also became a member of that group. In 1984, the Indian army attached the Golden Temple, the highest seat of the Sikh religion, on the pretext of flushing out Sikh terrorists. There followed an intense period of persecution of Sikhs during which Mr Singh and his family suffered both financial and emotional hardship including the burning down of his family’s business premises. As a result of this trauma, the applicant began to spend more time with his holy man, Sant Mohinder Singh Ji.

11. The applicant referred to instances of police brutality and torture that on a number of occasions resulted in death. He told the Tribunal that after 1984 he was involved in processions with people who had been oppressed by the police. At this time he did not have a regular job (because his business had burned down) but supported his family with rents collected from tenants on his farming lands. He claimed that in 1992 he left the Akali Dal (Badal) and became a member of the Akali Dal (Mann) group in 1992.  He told the Tribunal that the police had been harassing and arresting him and that the Badal group had given him no support. As a member of the Mann, group he was involved in collecting information, by signed affidavit, about the people who had been killed by the police. The applicant admitted that he was not legally qualified but claimed he was told by the Mann group to get a written account of particular incidents.  The applicant claimed that he was a leader of a group that was against the police and that this was why, at a time when most Sikhs were against the police, he was singled out for harassment.  The applicant said that he did not work with any of the human rights groups who were also investigating these matters.

12. The applicant also complained of harassment and arrest occurring after 1992 on occasions too numerous to count. He said that on each occasion pressure from people in the area resulted in the police releasing him. He claimed to have been tortured on numerous occasions and that in 18 years he had had no peace.

13. The applicant provided documentary evidence for his claims both with his application and at the hearing with the Tribunal.  It included copies of numerous newspaper articles, a letter purporting to be from Simranjit Singh Mann, President of Shiromani Akali Dal, letters from the applicant’s father and wife, a photocopy of a document dated 10 June 1999 purporting to be a hospital record containing information regarding the applicant’s admission dates as well as and a certification by Dr Jasbir Singh that the applicant “had signs of physical torture and of hot water on thighs and back. He had difficulty walking”. There was also a letter, which was in English and dated 13 May 1999, purporting to be from the Sarpanch (leader) of the applicant’s village certifying that the applicant had been taken into custody and tortured on specified occasions.

    Independent evidence

14. In addition to evidence adduced by the applicant, the Tribunal also considered independent evidence obtained from several sources including reports by the United States Department of State, the Australian Department of Foreign Affairs and Trade, the Canadian Immigration and Refugee Board, the Australian High Commission in New Delhi, Amnesty International and academic sources.  The evidence was to the effect that during the 1980s there had been sustained and violent conflict in the Punjab (including the assault on the temple at Amritsar) and that this violence had continued in the early years of the 1990s. This period of unrest had been characterised by extensive human rights abuses committed by both the militants and by government forces and frequently resulted in harm to persons who had little, if any, direct connection with the conflict. However, the independent evidence suggested that the situation in the Punjab had greatly improved since 1992 and that peace and normalcy had returned in recent years. It indicated that only high profile militant suspects, such as a perceived leader of a militant organisation or someone suspected of a terrorist attack, are at risk in the Punjab today.

    Tribunal’s assessment of applicant’s credibility

15. The Tribunal did not find the applicant to be a credible witness and pointed out that much of his evidence was contradicted by authoritative independent evidence and that some of it was simply implausible or internally inconsistent.  It is not necessary for the purposes of these proceedings to detail all the inconsistencies and implausibility which the Tribunal identified. Some examples will suffice. The applicant had specifically confirmed that he had joined the Akali Dal (Mann) group in 1992. However independent evidence available to the Tribunal showed that the group was not formed until 1994. The Tribunal found the applicant’s explanation that the group existed informally before it was formally constituted unconvincing. The applicant claimed to have been arrested on suspicion of being involved in a plot to kill PS Badal, the leader of the Akali Dal (Badal) group. He attributed the suspicion to his being regarded as a militant because he and his group demanded his rights. The Tribunal observed that all political parties in India, particularly in the Punjab, demanded their rights. It did not regard the applicant’s response as convincing.

16. The Tribunal also expressed scepticism about other evidence submitted by the applicant. A letter purporting to be from Simranjit Singh Mann, President of the Shiromani Akali Dal contained information that a person in that position could be expected to know but that was inconsistent with that provided from independent sources. The Tribunal did not accept that the letter was genuine. The applicant also presented letters that were said to be from his wife and his father. The letters were written in Punjabi and, because the interpreter was unable to read the script, the applicant read them aloud and the interpreter translated his words. Both letters complained of police harassment and warned the applicant not to return to India because the Punjabi police were still pursuing him. The Tribunal had totally rejected these letters because it was not satisfied that the applicant was of any continuing interest to the police in India. It found the letters to be self-serving and stated that they “cannot be relied upon as genuine”. In particular the Tribunal noted that the applicant’s wife concluded her letter by asking for forgiveness “if I have made any mistakes in what I have written”. The comment suggested to the Tribunal that she was writing what she had been instructed by the applicant to write.

17. The Tribunal did not accept that the affidavits provided by the applicant and said to have been taken by him were genuine. The affidavits were in English and the Tribunal did not regard the applicant’s skills in English as sufficient for the purpose. It did not accept the applicant’s claim to have been involved in taking affidavits on behalf of the Mann party from 1992. It also rejected the document dated 10 June 1999 from Dr Jasbir Singh and the letter from the Sarpanch of the applicant’s village dated 13 May 1999 (see paragraph 13). According to the Tribunal these letters were “self-serving, and purport to corroborate claims made by the applicant which the Tribunal has unreservedly rejected.”

18. However the Tribunal was prepared to accept part of the applicant’s evidence:

    “The Tribunal is willing to accept that prior to 1992 he may have been arrested on a couple of occasions during sweeps of arrests of Sikh youths which occurred in the aftermath of incidents of civil unrest. The Tribunal also accepts that the applicant may have had some friends who were killed in encounters with the police in the mid-1980s.  The Tribunal also accepts that the applicant’s family lost some property during a violent episode around 1984 following the storming of the Golden Temple and the security crackdown and atrocities which followed. The Tribunal is also willing to accept that the applicant and his family were arrested and mistreated on a number of occasions in the early 1980s when they were participating in Sikh processions.”

    Tribunal’s conclusion

19. The Tribunal found that the applicant was of no continuing interest to the Punjabi police as he did not have a high profile as a militant. The Tribunal expressed its conclusions as follows:

    “While the Tribunal finds that there has been some exaggeration in the applicant’s claims, the independent information before the Tribunal confirms that these were common stories, …. However, the information before the Tribunal indicates that this pattern of violence and police brutality has significantly changed in more recent years and does not therefore accept that the applicant was arrested more often after 1992 than before.
    ………
    The Tribunal notes the independent evidence discussed above and finds that there has been a significant change in attitude in the ranks of the Punjab police since 1993 and relative peace has returned to Punjab generally. The excesses of the past are being addressed. The Tribunal has already found that the applicant is of no continuing interest to the Punjab police and has no reason to believe that he will face the same problems upon his return as he faced prior to 1992. The Tribunal is confident that the steps taken by the Indian and Punjabi authorities to reign in the past excesses of the Punjab police mean that the applicant no longer faces the prospect of being arrested and mistreated again as he was prior to 1992. The Tribunal finds that the applicant does not have a well-founded fear of being harmed again by the Punjabi police.
    ………
    While the Tribunal is willing to accept that the applicant has been a general supporter of either or both of the two Akali Dal parties at some time in the past, … it does not accept that he worked for either of the parties in the way that he has claimed, nor that he was ever an active member of either of the Akali Dal parties. The Tribunal is not satisfied that the applicant has a well-founded fear of persecution in India for reasons of this support of these parties.

    Having considered all of the evidence before it, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution in India for a Convention reason now or in the reasonably foreseeable future. He is not a refugee.”

    THE PRESENT APPLICATION FOR AN ORDER OF REVIEW

20. The application for an order of review included a number of grounds for the application. However, at the hearing, counsel for the applicant, Ms Salsone, stated that the applicant was only pressing one of those grounds. This was the claim that the decision involved an error of law being an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal. In the statement of particulars filed on 5 June 2000 it was stated in support of this claim, that:

    “The Tribunal failed to properly address the central issue of whether the applicant had a well founded fear of persecution in that it did not address the evidence as provided by the applicant, but rather chose alleged independent documentation.”

21. Mr Smith, counsel for the respondent, submitted that this assertion seeks to attack a legitimate process of fact finding by the Tribunal and to impugn the independence of the information relied on without providing any evidence to substantiate the assertion.  I accept this analysis and find that there is no error of law as alleged. There were other challenges to the Tribunal’s findings such as the allegation, in the statement of particulars, that the Tribunal had ignored the applicant’s evidence supporting his claim to have been tortured as recently as 1997. This claim is no more than an invitation to merits review that I resist. The Tribunal is not obliged to set out its reasons for rejecting evidence which is adduced to support a conclusion contrary to the Tribunal’s conclusion; Minister for Immigration and Multicultural Affairs v Singh [2000] FCA 845 at [46].

22. In oral submissions, Ms Salsone referred extensively to the judgment of Sackville J in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220 (“Rajalingam”). She argued that as the Tribunal had accepted some parts of the applicant’s evidence but not other parts, the Tribunal should have asked “what if I am wrong?” in relation to those parts that it had rejected. 

23. It seems to me that the argument for the applicant is based on a misunderstanding of when the “what if I am wrong?” question should be asked. The misunderstanding derives from a failure to focus on the purpose of asking such a question. The purpose of the question is to assist in determining whether the applicant had a well founded fear of persecution for a Convention reason.  It is important to remember that this question requires the decision-maker to assess the likelihood of future events and that there is ample authority to support the proposition that these future events do not have to be more probable than not.

24. The case of Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”) is authority for the proposition that a person can have a well founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent. The importance of Chan in establishing this point was accepted by Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ in their joint judgment in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572 (“Guo”). At the same time their Honours warned that using the “real chance” test formulated in Chan as a substitute for the Convention phrase of “well founded fear” was an invitation to error.  The Tribunal must decide the actual question being whether there is a well founded fear of persecution in the future.

25. In assessing the likelihood of future persecution, it is appropriate to take into account past events. This was recognised in the joint judgment in Guo in the following passage at 575:

    “Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing. In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future. It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

1. However, findings as to past events may not always provide sure guidance. According to Sackville J in Rajalingam at 240:

   “When the [Tribunal] is uncertain as to whether an alleged event occurred, or finds that, although the probabilities are against it, the event might have occurred it may be necessary to take into account the possibility that the event took place in considering the ultimate question. Depending on the significance of the alleged event to the ultimate question, a failure to consider the possibility that it occurred, might constitute a failure to undertake the required reasonable speculation in deciding whether there is a “real substantial basis” for the applicant’s claimed fear of persecution.”

2. The enquiry referred to in this passage is often referred to as the “What if I am wrong?” question. But, as Sackville J emphasised in Rajalingam (echoing the High Court’s warning about the misuse of the ‘real chance’ test) this terminology should not obscure the fact that, like the ‘real chance” test, this question is simply an aspect of the obligation to determine the ultimate issue being whether the applicant’s fear is well-founded. It is not necessary to pose this question in every case where the Tribunal accepts some parts of the applicant’s evidence and rejects other parts. It depends on the strength of the tribunal’s findings. The joint judgment in Guo, at 575-576, rejected the trial judge’s criticism of the tribunal in that case for not considering the possibility that any of its findings were inaccurate:

   “…the Tribunal was entitled to weigh the material before it and make findings before it engaged ‘in any consideration of whether or not Mr Guo’s fear of persecution on a Convention ground was well-founded’. Moreover, given the strength of some of the Tribunal’s findings …the Tribunal was not bound to consider the possibility that its findings were inaccurate or that the punishment was Convention based.
   …
   Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong.”

3. This comment applies equally to Mr Singh as to Mr Guo. In this case, the Tribunal’s finding were not equivocal. Its comments about the evidence it rejected included that the evidence was “not convincing”, “self-serving”,  “cannot be relied on as genuine”, “simply implausible” and “unreservedly rejected”. As a consequence of these evaluations and in the light of the independent evidence that the Tribunal did accept, it found that the applicant was of no continuing interest to the Punjabi police. It found that the applicant did not have a well founded fear of persecution either by the Punjabi police or generally in India. In my opinion, the Tribunal’s findings of fact were open to it on the evidence and its conclusions followed from those findings.

4. For these reasons the orders will be that the application be dismissed with costs.

I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             12 December 2000

Counsel for the Applicant:	Ms C Salsone
Solicitor for the Applicant:	Coelho & Coelho Solicitors
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	11 October 2000
Date of Judgment:	12 December 2000