Singh v Minister for Immigration and Multicultural Affairs
[2000] FCA 705
•29 MAY 2000
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 705MIGRATION – whether the applicant had a well-founded fear of persecution – whether Tribunal erred in not making findings in relation to material relied upon as a reason for the applicant’s fear of persecution - reasonable relocation.
Migration Act 1958 (Cth) s 430, 476(1)(a) and (1)(e)
MANJIT SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
VG 67 OF 1997
NORTH J
29 MAY 2000
MELBOURNE
IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY VG 67 OF 1997
BETWEEN: MANJIT SINGH
APPLICANTAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE: NORTH J DATE OF ORDER: 29 MAY 2000 WHERE MADE: MELBOURNE THE COURT ORDERS THAT:
1.The application is dismissed.
2.The applicant is to pay the respondent’s costs of and incidental to 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 VICTORIA DISTRICT REGISTRY VG 67 OF 1997
BETWEEN: MANJIT SINGH
APPLICANTAND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE: NORTH J DATE: 29 MAY 2000 PLACE: MELBOURNE REASONS FOR JUDGMENT
The applicant, Mr Manjit Singh, applies to the Court for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 20 January 1997 which affirmed the decision of the delegate of the respondent, the Minister of Immigration and Multicultural Affairs, to refuse Mr Singh a protection visa.
BACKGROUND
The applicant is a national of India who was born on 1 March 1960. He arrived in Australia on 22 November 1995 as a visitor holding a visa which permitted him to remain for two months. On 19 January 1996 he applied for a protection visa.
The applicant is a Sikh from Sarsini in Punjab State. He attended school from 1966 until 1976 and did an apprenticeship as a typewriter mechanic in 1979. From 1979 until 1995 he was a typewriter mechanic employed by the government of Punjab.
The applicant had a distant relative called Karnail Singh Khanpur (Karnail) who used to come and stay at the applicant’s home. Karnail was a terrorist in an extremist organisation called BTF (Bhindranwale Tiger Forces). He had guns and ammunition and visited the applicant’s family at night. He would visit two to four times per month. In 1989 the applicant’s brother, Kuldeep, became involved in the BTF with Karnail. Karnail and Kuldeep had guns and ammunition in the applicant’s house.
In about March 1992 a huge police force surrounded the applicant’s house one night and asked for Karnail and Kuldeep. Neither of them were home. On this occasion the applicant’s cousin, Surinder Singh (Surinder), was also present at the applicant’s house. The police beat the applicant’s father and Surinder’s father.
The police detained the applicant and Surinder for five days. They were kept in separate rooms and beaten every day. They were tortured with electric shocks. They were interrogated about Karnail and Kuldeep. Neither the applicant nor Surinder was photographed but Surinder was fingerprinted. The applicant and Surinder were released from custody upon payment of a bribe of 100,000 rupees. No conditions were placed on their release.
Upon his release the applicant went to live and work in Chandigarh but returned home to his village three or four times a month. He always went at night and returned to Chandigarh in the morning.
Kuldeep left India and settled in Switzerland towards the end of 1993. The applicant had no contact with him and did not know how he got out of India. Before leaving India Kuldeep lived at home but spent little time there. The police often came to the applicant’s house searching for Kuldeep and Karnail. In 1993 Karnail was killed by the police.
In 1993 the authorities came to the applicant’s workplace and questioned him for about two hours concerning his alleged connections with terrorists. They asked about Kuldeep, including his whereabouts.
On 28 January 1995 the applicant and Surinder were stopped by police when returning from visiting his father’s sister. They were again taken to the same police station as in 1992 and held separately for five days. They were badly beaten and given electric shocks. The applicant was asked about his brother and whether he and his cousin had arms or ammunition. The van they used belonged to Surinder. The police searched the van and although they found nothing, they planted ammunition in the van and fabricated a case that the applicant and Surinder were going to kill somebody. The applicant and Surinder were fingerprinted but not photographed. They were released after 200,000 rupees were paid to the police. There were no conditions on their release, but the police told the applicant’s father that the applicant and Surinder should not be allowed to leave the country. After the applicant’s release in early 1995 the police came to his home every one and a half to two months.
On 21 November 1995 the applicant left India using a passport in his own name which he had obtained in 1991. The applicant left India in order to attend a family wedding in Australia.
THE DECISION OF THE TRIBUNAL
The background which has just been set out in these reasons is a condensed version of the decision of the Tribunal recorded under the heading “Claims”, in which the Tribunal summarised the contents of the primary written application, the contents of a letter submitted to the Tribunal dated 30 May 1996 and a summary of the evidence of the witnesses at the hearing. The witnesses were the applicant, Surinder, and the applicant’s uncle.
In the next section of the Tribunal’s reasons under the heading “The Law” the Tribunal discussed the definition of refugee, the concept of “well founded fear”, the meaning of persecution, the date for determination of the application, and the principles relating to internal flight.
The final section of the Tribunal’s reasons was under the heading “Findings”. This section opened with a discussion of a United States Department of State Country Report on Human Rights Practices for 1995 (Country Report) concerning India, which also addressed the specific conditions in the Punjab. The general import of the report was that conditions in the Punjab had improved and that the threat to human rights was considerably reduced. For instance, the report stated:
“In Punjab, the insurgent violence of past years has largely disappeared, and there is visible progress in correcting patterns of abuse by police. The assassination of the Punjab Chief Minister at the end of August, an isolated exception to restored civil peace in the state, resulted in neither a widespread crackdown nor a breakdown of order.
…
Killings of Sikh militants by police in armed encounters appear to be virtually at an end.
…
In Punjab, the pattern of disappearances prevalent a few years ago appears to be much diminished.”
The Tribunal concluded this section as follows:
“Against this general background the Tribunal assesses the Applicant’s claims. The relevant Convention grounds are race, religion, and actual or imputed political opinion.”
Following this general introduction to the section “Findings”, the reasons dealt with a number of subsections. The first is entitled “Credibility” and the following important passage appears:
“The Tribunal has reservations about aspects of the Applicant’s cousin’s evidence which seemed inconsistent with the Applicant’s evidence (concerning, in particular, the Applicant’s relative’s possession of arms and ammunition; and whether the Applicant’s relative or his brother visited the family after March 1992). The Applicant’s claims and evidence were not free of inconsistency, either, for whereas he claimed in his primary application that had [sic] been arrested on several occasions it transpired that this had occurred twice. Further, while the Applicant claimed statement [sic] dated 16 May 1996 that he never suspected that his relative was a terrorist, he told the Tribunal that he suspected his relative because he visited the family at night. The Applicant’s claims and evidence were generally consistent, however, and the Tribunal is satisfied with regard to the Applicant’s essential credibility.” [emphasis added]
The next subsection is headed “Punjab”. This subsection begins by seeking to explain the reasons for the improvement in conditions in Punjab which had been referred to in the Country Report. By reference to newspaper articles and cables from the Australian Department of Foreign Affairs and Trade, the Tribunal explained that the separatist’s cause collapsed partly because of the efforts of the Director General of Police, KPS Gill, and partly because the separatists became discredited when they resorted to extortion and rape, thereby tarnishing their image as freedom fighters. The Tribunal acknowledged that the situation concerning human rights abuse, “does not equate with complete rectitude of police conduct” and referred to several newspaper articles suggesting police misconduct in connection with the treatment of Sikh militants.
Against that assessment of the evidence of the situation in Punjab, the Tribunal assessed the applicant’s case as follows:
“The Applicant’s release in 1992 was unconditional. Whether or not a formal condition was placed on the Applicant’s release in 1995 he was not required to surrender his passport and was not taken into custody again. In the meantime, until a short time prior to his departure from India, he remained employed by the government of his state at a place located a relatively short distance from his family’s home. It may be inferred that the Applicant could have been located and apprehended by the authorities if they intended to do so for police visited his workplace in 1993 and, perhaps, in 1994. The Applicant was not taken into custody again. In circumstances considered below, the Applicant was permitted to go abroad. The fact that not only the Applicant but also his cousin were permitted to go abroad tends to reduce the possibility that the authorities had a continuing interest in the Applicant yet he was able to avoid them and leave the country.
It is significant that the Applicant’s brother and his cousin’s brother have not been arrested by the authorities in recent years, if at all – although neither had been involved in any political activities, and the Applicant’s brother is a public servant who lives some distance from the rest of the family. Further, the Applicant’s father and uncle have not been taken into custody again. Notwithstanding that their age may have protected them, if the family were truly suspected to be connected with terrorists, one might expect something of the kind to have occurred.
Some degree of interest may have been shown in the Applicant and his cousin by local police after they left India. The circumstances surrounding the payment made to secure the Applicant’s and his cousin’s release in 1995 and what took place afterwards, however, including the consideration that apparently no charges were laid, suggest not that the Applicant and his cousin truly had terrorist connections imputed to them but rather that corrupt police engaged in extortion because they perceived that the Applicant and his cousin had money: see Ram v Minister for Immigration and Ethnic Affairs and anor (1995) 128 ALR 705.
In all the circumstances, despite reports of serious mistreatment of some human rights activists and even if, as the Applicant’s uncle testified, cordon and search operations are still conducted by Punjabi police, resulting in at least one case of persecution of a person taken into police custody, the chance that the Applicant would be persecuted for a Convention reason if he were to return to Punjab is remote, in the Tribunal’s view.”
The Tribunal concluded this subsection by stating:
“In any event, for reasons which are set out below, the option of internal flight appears reasonably available to the Applicant.”
The next subsection of the decision is headed “Passport / Departure”. The Tribunal referred to a cable from the Australian Department of Foreign Affairs and Trade which described the process for obtaining a passport. The cable stated that there was an efficient system of identity checking for the issue of passports and “an efficient liaison between departments to check on the departure of persons involved in serious crime”. The cable also stated:
“Advice from a number of sources indicates that no-one of concern to the authorities and for whom an arrest warrant was in force would be able to leave the country either undetected or by bribery.”
The Tribunal observed that the applicant and Surinder left India unimpeded using passports in their own names. The Tribunal concluded that:
“neither the Applicant nor his cousin were of particular interest to the authorities at the time of their departure from India, and support the Tribunal’s conclusion that there is no real chance that the Applicant would suffer persecution for a Convention reason if he were to return to India.”
The Tribunal then addressed the question of internal flight under a subsection with that heading. It referred to cables from the Australian Department of Foreign Affairs and Trade to the general effect that many Sikhs could be found throughout India and with the reduction in hostilities in the Punjab, only persons known to have significant organisational or leadership roles in militant separatist groups would not be able to live safely in India outside Punjab. The Tribunal’s conclusion was expressed as follows:
“The Applicant has not engaged in terrorist activities. The circumstances of his arrests in 1992 and 1995 and subsequent release indicate that after his release in 1992 he was not truly regarded by the police as being involved in terrorism, for reasons set out above. His employment over the years supports the view that he was not truly under suspicion. Therefore, the Tribunal concludes that there is no real chance that the Applicant would be persecuted in Punjab state or pursued beyond its boundaries and persecuted were he to return to India. The fact that the Applicant’s cousin was not troubled in place [sic] outside Punjab where he spent most of his time after March 1992 tends to support this conclusion.
Given the Applicant’s age, his ability to speak a number of languages, his technical qualifications and employment history, the Tribunal considers that the option of internal flight would be reasonably available to him, if necessary.”
In the final subsection under the heading “Conclusion” the Tribunal stated:
“The Tribunal accepts that the Applicant suffered persecution in 1992 and 1995 by the authorities of his state. For the reasons set out above, however, the Tribunal concludes that at the time he left India the Applicant was not in well-founded fear of persecution for a Convention reason and there is no real chance that he would suffer persecution for such a reason if he were to return. If necessary, the option of internal flight would be reasonably available to him.”
THE APPLICANT’S CASE ON REVIEW
The applicant was represented by Mr Peter Gray of counsel who presented a well organised case on behalf of his client. Unfortunately, applications in migration matters such as the present are often not drawn with sufficient care to define the scope of the arguments to be presented. This case is, however, not in that category. The second amended application set out concisely the arguments which Mr Gray addressed to the Court. Consequently, it is useful to set out the relevant paragraphs of the amended application. It provided as follows:
“1. Procedures that were required by the Migration Act or the regulations to be observed in connection with the making of the decision were not observed within s.476(1)(a) in that:
(c)In purporting to prepare a written statement setting out its decision, the RRT failed to set out it’s reasons for the decision contrary to the requirement of paragraph 430(1)(b), failed to set out the findings on all material questions of fact contrary to the requirement of paragraph 430(1)(c) and/or failed to refer to the evidence or any other material on which the findings of fact were based contrary to the requirement of paragraph 430(1)(d) of the Migration Act.
PARTICULARS
(vi)It is not clear what the RRT meant by finding that it had reservations about aspects of the applicant’s evidence but was satisfied with regard to the applicant’s ‘essential credibility’.
(vii)The RRT was required to make findings, and did not do so, on the following material questions raised by the evidence and material and the RRT’s characterisation of events:
A.Were the applicant and his cousin tortured in detention during interrogation as to the whereabouts of the applicant’s brother, Kuldip?
B.Were the applicant and his cousin accused of being accomplices of Kuldip?
C.Was Kuldip suspected by the police of being a terrorist?
D.What was the profile of the Bhindranwale Tiger Forces and Karnail Singh Khanpur?
E.Were persecutory motives within the Convention combined with motives of extortion in causing the police actions (whatever they were) against the applicant and his cousin?
F.Did the extortion itself constitute a manner of persecution for a Convention reason?
G.Did the police visit the applicant’s home searching for him and his cousin whenever there was an ‘incident’ such as the killing of a police officer?
H.Did the findings of the RRT based on country information include a finding that there was no real chance of such ‘incidents’ occurring again in the foreseeable future?
I.Had the applicant’s family informed him and his uncle that the police were harassing them with frequent visits, and if so, were the police in fact harassing them? Were the police asking the whereabouts of the applicant and his cousin, and asking whether they were involved in terrorist activities? In this connection, it is unclear what the RRT meant by saying ‘Some degree of interest may have been shown in the Applicant and his cousin by local police after they left India.’
J.Were young relatives of militants targeted for extortion or other persecutory conduct by the police? If so, was this for reasons of membership of a particular social group?
K.Was there an arrest warrant in force for the applicant or his cousin? Assuming there was not, as no such evidence was given, how did the cable relied upon by the RRT and the circumstances of the applicant’s departure suggest that neither the applicant nor his cousin were of interest to the authorities?
3.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 RRT, whether or not the error appears on the record of the decision, within s.476(1)(e) of the Migration Act 1958.
PARTICULARS
(f)The RRT erred in its construction of the definition of ‘refugee’ in the Refugees’ Convention in that the RRT proceeded on the basis that, provided corrupt police were engaged in extortion against people whom they perceived to have money, there was no need to consider whether that or related conduct constituted persecution for reasons of a Convention ground.
(g)The RRT erred in its construction of the definition of ‘refugee’ in the Refugee Convention in that the RRT proceeded on the basis that the motives of extortion and Convention persecutory motives were, in law, mutually exclusive.
(h)The RRT failed to make explicit findings on matters critical to the proper application of the Convention definition, demonstrating that the RRT misunderstood the definition. The applicant relies on the particulars subjoined to paragraph 1(c) above.
(i)The RRT failed to make explicit findings on matters critical to the proper application of the Convention definition, and as a result it failed to apply the law to the facts as found. The applicant relies on the particulars subjoined to paragraph 1(c) above.
5.The decision was otherwise contrary to law.
PARTICULARS
The RRT failed to make explicit findings on matters critical to the proper application of the Convention definition, and as a result it constructively failed to exercise its jurisdiction. The applicant relies on the particulars subjoined to paragraph 1(c) above.”
REASONING
CREDIBILITY – GROUND 1(c)(vi)
The applicant contended that the way in which the Tribunal made some findings was unclear and was thereby in breach of the obligation imposed by s 430. The passage in contention appeared under the heading “Credibility” and stated:
“The Applicant’s claim and evidence were generally consistent, however, and the Tribunal is satisfied with regard to the Applicant’s essential credibility.”
The applicant submitted that this approach left the reader uncertain as to which evidence was accepted and which evidence was not accepted.
This criticism is not justified. The meaning of the Tribunal is quite clear. The technique adopted by the Tribunal was a convenient way of indicating its acceptance of the comprehensive material referred to earlier under the heading “Claims” without repeating that mass of information. It accepted the applicant’s evidence on all essential matters. The matters which did not go to the essence of the case and in respect of which the Tribunal found some inconsistency were specified by the Tribunal. Even in the case of inconsistency in detail, the Tribunal not only remarked on the fact of inconsistency but, in most cases, made a finding to resolve it. Thus, for instance, the Tribunal made a finding that the applicant had been arrested twice, which resolved the inconsistency in his evidence on the question of the number of occasions on which he was arrested.
FAILURE TO MAKE FINDINGS ON MATERIAL QUESTIONS – GROUND 1(c)(vii)
The applicant’s underlying arguments on this ground were outlined in his written supplementary contentions as follows:
“14 …The RRT treated the case as capable of disposition by reference to the question, were the applicants imputed with terrorist connections or were they the victims of police engaging in extortion of wealthy people? There are three things wrong in law with this approach:
(a)The RRT adopted a dichotomous or mutually exclusive approach of what motives could constitute Convention motives;
(b)The RRT made its choice between the alternatives posited by it, characterising the motives as motives of extortion, without making necessary findings as to the circumstances of the persecutory experiences; and
(c)Having found that the ‘circumstances’ ‘suggest not that the [applicants] truly had terrorist connections imputed to them but rather that corrupt police engaged in extortion’, the RRT prematurely curtailed the fact finding process and failed to consider whether other Convention grounds, beyond the imputation of terrorist connections, might exist.”
In essence the applicant’s contention amounts to an argument that the Tribunal was diverted from a consideration of the main issues in the applicant’s case by its finding that the applicant’s arrests were the result of extortion by corrupt police.
This argument is without foundation. The Tribunal assessed the whole of the evidence and concluded that the applicant did not face a real chance of persecution for a Convention reason. That conclusion was supported by a chain of reasoning and references to the evidence on which the reasoning was based. The passage set out in paragraph 18 of these reasons demonstrates the reasoning of the Tribunal and the references to the relevant evidence. The factors relied upon were compelling. For example, the fact that the applicant was an employee of the state of Punjab meant that he was easily traceable. Despite this, he was not located and questioned at his place of employment after 1992.
The Tribunal examined the evidence and relied upon a series of factors which led it to conclude that the applicant was of no particular interest to the authorities. It was strictly unnecessary for the Tribunal to go further and seek the reason for the mistreatment of the applicant by the police. However, it did so. Only at this point did the Tribunal offer as an explanation of the detention of the applicants the possibility that corrupt police were engaged in extortion. Prior to considering that question the Tribunal had gone through a process of assessment whether a Convention reason had been shown. It is wrong to say, as the applicant contends, that the Tribunal took a mutually exclusive approach to the consideration of the existence of Convention reasons.
The applicant then submitted that there were a series of particular material questions of fact on which the Tribunal failed to make findings in breach of s 430(1)(c), or refer to the evidence or other material on which findings of fact were made in breach of s 430(1)(d) or set out the reasons for the decision in breach of s 430(1)(b). Each of these particular questions will be addressed in turn.
GROUND 1(c)(vii)(A)
“Were the applicant and his cousin tortured in detention during interrogation as to the whereabouts of the applicant’s brother, Kuldip?”
First the applicant contended that it was unclear whether the Tribunal accepted the applicant’s claim to have been tortured in 1992 and 1995. This cannot be accepted. The events of torture were set out in the “Claims” section of the decision, adopted in the “Credibility” section, and the acceptance was confirmed in the “Conclusion” section.
Then the applicant argued that if the applicants were tortured “it could not be assumed that torture would be a step in facilitating extortion” unless there was a finding to that effect. In essence this contention calls into question the Tribunal’s view on the merits of the case. It suggests that the existence of torture is inconsistent with a motive of extortion. But, as has been outlined above, the Tribunal weighed a number a factors in coming to its conclusion that the persecution experienced by the applicant was not for a Convention reason. Included in the factors weighed by the Tribunal was the fact that the applicant had been tortured. The merits of that finding cannot be called into question in this proceeding. There was no failure by the Tribunal to set out its findings on this material question and refer to the evidence upon which the findings were based. The Tribunal complied with the requirements of s 430 in this respect.
GROUND 1(c)(vii)(B)
“Were the applicant and his cousin accused of being accomplices of Kuldip?”The applicant contended that the Tribunal made no finding that the police accused the applicant of complicity with Kuldeep. Again, this contention does not take into account the adoption in the “Credibility” section of the evidence in the “Claims” section. The Tribunal did make that finding.
The applicant then contended that in the absence of a specific finding to the contrary, the finding that the police interrogated the applicant as to the whereabouts of Kuldeep and their accusations of complicity point to an interest by the police in the applicant and are inconsistent with the extortion being the sole reason for detention. As with the previous ground, the criticism amounts in essence to a challenge to the Tribunal’s decision on the merits. The Tribunal made the finding that the applicant was accused by the police of being an accomplice of Kuldeep, but in an assessment of the reasons for the persecution the factors relied upon by the Tribunal led it to conclude that the reason was not Convention related. Again, the Tribunal made findings on the material questions and set out the evidence upon which those findings were made.
GROUND 1(c)(vii)(C)&(D)
“Was Kuldip suspected by the police of being a terrorist?” and “What was the profile of the Bhindranwale Tiger Forces and Karnail Singh Khanpur?”
As with the two previous grounds, the applicant’s contention that the Tribunal failed to make the relevant findings flows from a failure to regard the “Claims” section as adopted by the “Findings” section. These two grounds also have no substance. The Tribunal found that the BTF was an extremist organisation and that Kuldeep was suspected by the police of having killed people for the BTF. These factors where taken into account in weighing the evidence generally and in coming to the conclusion on all the evidence that the reasons for detention and torture were not Convention based.
GROUND 1(c)(vii)(E)&(F)
“Were persecutory motives within the Convention combined with motives of extortion in causing the police actions (whatever they were) against the applicant and his cousin?” and “Did the extortion itself constitute a manner of persecution for a Convention reason?”.
The applicant submitted that even if the Tribunal had properly determined the matters referred to in grounds 1(c)(vii)(A) - (D) it could not find that the detention of the applicant was a result of extortion by corrupt police without considering whether this motive was mixed with other motives which were Convention related, or without considering whether the extortion was itself a result of Convention reasons.
Again, this ground is without substance. The Tribunal made a positive finding for reasons it expressed and explained that the reasons for the detention and torture were not Convention reasons. This finding carried with it the finding that Convention reasons were not mixed with any other reason (whatever that other reason was), and that the suggested reason of extortion did not have its origin in a Convention reason. It was not necessary for the Tribunal to do any more in order to comply with s 430.
GROUP 1(c)(vii)(G)
“Did the police visit the applicant’s home searching for him and his cousin whenever there was an ‘incident’ such as the killing of a police officer?”
Under this ground the applicant argued that the Tribunal did not make sufficient findings on the degree of interest which the police had in the applicant. The applicant submitted that the Tribunal failed to address the question of whether the applicant was sought by police whenever incidents such as the killing of a police officer occurred.
The Tribunal recorded evidence as to the interest of the police in the applicant following various incidents. This was part of the evidence accepted in the “Credibility” section. The reasons of the Tribunal demonstrate that the evidence was assessed, along with other evidence, when concluding on the material question that the reasons for the detention and torture of the applicant were not Convention based. The real complaint of the applicant is, again, that this evidence was not regarded by the Tribunal as of greater significance than the evidence which it accepted as indicating that the detention and torture were not for Convention reasons. That is a complaint about the assessment of the merits of the case. It is not a complaint based on non compliance with s 430.
GROUND 1(c)(vii)(H)
“Did the findings of the RRT based on country information include a finding that there was no real chance of such ‘incidents’ occurring again in the foreseeable future?”
The applicant’s argument on this ground is expressed in his supplementary contentions as follows:
“23 … the RRT noted its view that the country information showed police conduct was not free from abuse and noted the need to address the significance of the information for the applicant’s case. In purporting to do so in the following page, the RRT did not address the claim that the applicants were at risk of adverse police attention when incidents occurred and did not speculate on the country information as to chances of such trigger events recurring.”
This is not a proper characterisation of the Tribunal’s approach. The Tribunal addressed the material question of the reason for the detention and torture of the applicant. It found the relevant facts, including the degree of police interest in the applicant, and then weighed those facts against other facts found. The Tribunal was persuaded by the facts found that the persecution of the applicant was not for Convention reasons. It did not fail to make findings about the risk of police abuse by reference to the country information. Rather, having made such findings, it found that other factors led to the conclusion that the detention and torture of the applicant were not for Convention reasons. There was no failure to make the findings which were the subject of this ground. Again, the real complaint of the applicant is that these facts were not regarded by the Tribunal as determinative, and again, that argument does not support a ground of review available to the applicant.
GROUND 1(c)(vii)(I)
“Had the applicant’s family informed him and his uncle that the police were harassing them with frequent visits, and if so, were the police in fact harassing them? Were the police asking the whereabouts of the applicant and his cousin, and asking whether they were involved in terrorist activities? In this connection, it is unclear what the RRT meant by saying ‘Some degree of interest may have been shown in the Applicant and his cousin by local police after they left India.’”
The applicant’s contention on this ground was that it was essential for the Tribunal to make a finding on the claim that the applicant’s family were subjected to continuing harassment, and that the finding made by the Tribunal on this subject was ambiguous.
This is again an unwarranted criticism of the Tribunal reasons. The Tribunal referred to and made findings of fact concerning the interest shown by the police in the applicant’s family. The “some degree of interest” finding which is set out in full in the passage referred to in par 18 of these reasons is preceded by the analysis of the lack of interest in certain other members of the applicant’s family. The Tribunal clearly determined that there was a degree of interest shown by the police in members of the applicant’s family but that the extent and nature of such interest, taken with other facts found, did not persuade the Tribunal that the applicant was of such interest to the police as to amount to a real chance of persecution for a Convention reason. On these matters the Tribunal complied with the requirements of s 430.
GROUND 1(c)(vii)(J)
“Were young relatives of militants targeted for extortion or other persecutory conduct by the police? If so, was this for reasons for membership of a particular social group?”
The applicant contended that the Tribunal failed to consider the case on the basis that the applicant was persecuted because he was a member of a particular social group, namely, young relatives of militants.
The Tribunal considered that the relevant Convention grounds were race, religion, and actual or imputed political opinion. The case was not put to the Tribunal as a case of persecution as a result of membership of a particular social group. The evidence before the Tribunal did not suggest such a basis. In any event, it was implicit in the Tribunal’s rejection of the case that the applicant was persecuted because of race, religion, or actual or imputed political opinion, that the persecution could not be a result of the membership of a group of people whose relevant connection was race, religion, or actual or imputed political opinion.
GROUND 1(c)(vii)(K)
“Was there an arrest warrant in force for the applicant or his cousin? Assuming there was not, as no such evidence was given, how did the cable relied upon by the RRT and the circumstances of the applicant’s departure suggest that neither the applicant nor his cousin was of interest to the authorities?
The cable from the Australian Department of Foreign Affairs and Trade relied upon by the Tribunal indicated that no one of concern to the authorities and for whom an arrest warrant was in force would be able to leave the country undetected. The Tribunal found that the applicant had not been charged with any offence. The applicant argued that, consequently, the cable could not support the conclusion that the circumstances of the applicant’s departure indicated that the applicant was not of interest to the authorities.
If this argument were correct it would disclose an error in fact finding but not a breach of any obligation under s 430. However, the argument is not correct because the cable dealt with matters concerning the circumstances of the applicant’s departure which, if present, may have indicated an interest in him by the authorities. For instance, it set out the stringent requirements of identification necessary to obtain a passport and described the “efficient liaison between the departments to check on the departure of persons involved in serious crime”. There was evidence contained in the cable sufficient to justify the Tribunal’s conclusion that the circumstances of the applicant’s departure indicated that he was not of particular interest to the authorities.
GROUNDS 3 AND 5
It follows from the above conclusions relating to Ground 1 that the applicant’s case on Grounds 3 and 5 cannot be sustained.
INTERNAL FLIGHT
In the passage from the Tribunal’s decision set out in par 23 of these reasons the Tribunal reiterated its conclusion that the authorities did not regard the applicant as involved in terrorism. It went on to conclude that in all the circumstances internal flight was an option “if necessary”.
The applicant submitted that the internal flight option finding depended on the Tribunal’s findings, or lack of them, concerning his profile as a person involved in terrorism. That is to say, the internal flight option was found to be available only because the Tribunal formed conclusions acting in breach of s 430.
I have determined that the Tribunal did not commit the errors alleged. Hence, those alleged errors were not carried into the consideration of the internal flight option.
In any event I am inclined to read the Tribunal’s conclusion on the availability of the internal flight option as having been arrived at independently of the conclusion as to the applicant’s involvement in terrorism. The Tribunal said that “the option of internal flight would be reasonably available to him, if necessary”. The option would only be necessary if the applicant was, contrary to the Tribunal’s finding, involved in terrorism. The Australian Department of Foreign Affairs and Trade’s cable referred to by the Tribunal suggested that internal flight was only unavailable to persons “known to have significant organisational or leadership roles in pro-Khalistan militant groups”. As there was no suggestion that the applicant had, or was suspected of having, such roles, the cable seems to have been used by the Tribunal to indicate that even if the applicant had the suspected involvement alleged by him, the internal flight option was still open. On this approach, even if the applicant succeeded in each of the challenges to the Tribunal’s decision based on s 430, the Tribunal’s decision would be sustainable on the conclusion that the internal flight option was available to the applicant.
For these reasons the application will be dismissed with costs.
I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 29 May 2000
Counsel for the Applicant: Mr P Gray Solicitor for the Applicant: Erskine Rodan & Associates Counsel for the Respondent: Mr S McLeish Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 30 March 2000 Date of Judgment: 29 May 2000
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