Singh v Minister for Immigration and Multicultural Affairs

[2000] FCA 238

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 238

MIGRATION – refugees – protection visa – Refugee Review Tribunal – Indian citizen – alleged fear of persecution on account of attributed political opinion – application for review on merits – no ground of review disclosed – application dismissed.

Migration Act 1958 (Cth)

PREET SINGH v MINISTER FOR IMMIGATION AND MULTICULTURAL AFFAIRS
W37 of 2000

FRENCH J
27 APRIL 2000
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W37 OF 2000

BETWEEN:	PREET SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FRENCH
DATE OF ORDER:	27 April 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.        The application for review is dismissed.

2.        The Applicant pay the Respondent’s costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	W37 OF 2000

BETWEEN:	PREET SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FRENCH
DATE:	27 April 2000
PLACE:	PERTH

REASONS FOR JUDGMENT

1. Preet Singh is a citizen of India who arrived in Australia on 15 July 1999.  On 3 August 1999 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth). A delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa on 29 September and on 4 October 1999 Mr Singh applied to the Refugee Review Tribunal for a review of that decision. He was legally represented before the Tribunal.

2. In its reasons, the Tribunal, after referring to the relevant provisions of the Migration Act and Article 1A of the Refugees Convention and the cases construing Article 1A, turned to consider the claims and evidence before it.  Mr Singh had stated that he sought protection on the grounds of his well-founded fear of persecution for reasons of his ethnicity, his religion and his political opinion.  He told the Tribunal that he was a Sikh from the Punjab.  One of his brothers, Harvinder Singh, was a member of the Babbar Khalsa, a group which demanded a separate state of Khalistan.  Separatists were and continue to be, it was said, persecuted by Indian police.  After his brother went into hiding in 1990 it was said that police harassed and imprisoned family members in an effort to extract information on his brother’s whereabouts.  His father and uncles were said to have spent most of the last four years in prison.  The police had killed one of Mr Singh’s friends because he told them he did not know Harvinder Singh’s whereabouts.

3. Mr Singh said that, in 1996, his brother had fled to Switzerland to avoid persecution.  Up until this time Mr Singh avoided interrogation by the police by hiding and running away.  He was, however, eventually arrested, detained and tortured for a number of days.  Following that incident he said he changed his name from Gurpreet Singh to Preet Singh and moved to Malaysia to avoid further harassment and persecution.  He returned to India in 1998 where, he said, he was detained for two weeks and tortured.  Police informed him he was being tortured to ensure he would not run away again.  They threatened him that on the next occasion he would be tortured until he went blind if he did not reveal his brother’s whereabouts.

4. Mr Singh told the Tribunal that he feared for his personal safety on return to India and that police would detain and kill him because they believed he knows the whereabouts of his brother.  His claims were detailed in a statement dated 3 August 1999 which was set out in the Tribunal’s reasons.  There were also submitted, on his behalf, various documents said to attest to his identity and political profile.    There was a handwritten letter dated 20 September from Babbar Khalsa International stating that Mr Preet Singh was personally known by the organisation because his brother, Harvinder, had been a member since 1989.  The letter asserted that he had been arrested and tortured by Indian police because of his brother’s association with the organisation.  A letter dated 9 November from the Human Rights and Democracy Forum stated that Mr Singh was repeatedly summoned and detained by police to pressure him to facilitate the arrest of his brother.  In addition, a map of Khalistan and a copy of bank notes said to have been issued by the Bank of Khalistan were submitted with a statement that these notes were given only to people who were loyal to the party and not to anyone else.

5. The Tribunal referred to Mr Singh’s return to India from Malaysia in 1998 and questioned him about it at the hearing.  He said that he had returned to India because he thought conditions had improved.  He had not applied for refugee status in Malaysia because he had a two year permit and thought it was safe to return to India.  He said he learnt to speak English in Malaysia.  He won gold medals for the long jump there in 1997 and was employed in Penang.  He was asked why Indian police were still pursuing him and his family.  He replied that when someone was killed, the police would say to his father, “your son’s Party is responsible.”  It was put to him that authorities would be unlikely to gaol him and other family members on account of his brother’s political profile if in fact he has not lived in India since 1996 and there was no information to indicate his continuing involvement in political activities.  He again responded that the authorities think his brother is the head of Babbar Khalsa in India.

6. Mr Singh was asked by the Tribunal why he could not live in another part of India away from the Punjab if he did not want to return to the Punjab.  He said he could not speak the Hindu language properly and that if you live alone you have to inform the authorities of your whereabouts.  Asked about his family’s income, he responded that the family owned two farms, one in Punjab and one in Uttar Pradesh.  He was asked when the police last gaoled his father.  He said it was around voting time, but gave no date.  Asked how he managed to pass through airport security in India on at least four occasions, he told the Tribunal that he departed through New Delhi airport on a passport issued in a false name.  He had previously had difficulties because police had instructed authorities not to give him a passport but he had no difficulties since changing his name in late 1995.  The people smuggler who brought him to Australia on a boat through Indonesia had taken his passport when he put him on the boat in Indonesia.  He was asked why the letters from the Babbar Khalsa and the Human Rights Democracy Forum did not refer to him by his real name, Gurpreet Singh.  He responded that his mother must have told these organisations that his name was Preet Singh when she asked them to write the letters.  It was suggested by the Tribunal that the reference to Mr Singh by an incorrect name indicated he was not personally known by the organisations.  He said they knew he had used a false name to obtain a passport.

7. That was, in outline, the Tribunal’s summary of the evidence and the claims made by and on behalf of Mr Singh.  The Tribunal  then set out its own findings.  It found that he is an Indian national from the Punjab.  It accepted his brother was a member of Babbar Khalsa and that that group is an anti-government militant group in the Punjab area which demands an independent Khalistan state.  It also accepted that his brother “may” (sic) have fled to Switzerland in 1996.

8. The Tribunal found Mr Singh’s claims relating to the harassment and detention of his family to be implausible.  He had said his father was last imprisoned at voting time, but could not give a more specific time or even the year of his last imprisonment.  Despite his assertions that his father was often imprisoned and harassed, his family had not relocated or gone into hiding.  His parents continue to own and run two farms. He had never worked except to help out on the family farm and was otherwise engaged in athletic sport.  He was able to travel to and live in Malaysia for two years where he was in paid employment and competed in athletics.  His family’s ability to continue the operation of two farms and financially support him were inconsistent with the claim of a family constantly harassed and imprisoned.  The Tribunal did not accept his claims.

9. In relation to the claim that within a month of his return to India in 1998, he was detained and tortured in an attempt to stop him from leaving India again, he had presented a vague and generalised response when asked about how the authorities located him given he had been out of the country for two years and had changed his name in 1996.  The Tribunal did not accept that the authorities would have been interested in him in 1998.  His brother had been in Switzerland since 1996 and there was no evidence that he had been involved in any political activities.  He himself had not heard from his brother since 1996 and did  not know anything about him except that he was married.

10. Mr Singh said he had returned to India in January or February 1998 and was tortured a month later.  As a result, he said, he had decided to leave permanently.  However, the Tribunal noted he did not leave India until June 1999, even though he had a valid passport.  His delay in departure was inconsistent with his claimed fear.  Again, the Tribunal did not accept his claims in this regard.

11. The Tribunal doubted the authenticity of the letters from Babbar Khalsa and the Human Rights and Democracy Forum.  It had regard to the way in which they were presented and their appearance.  It noted that the letter from Babbar Khalsa  did not refer to Mr Singh’s name.  He said his mother had asked the organisation to write the letter and would have given them his name as stated in the letter.  Mr Singh’s own evidence, it was said by the Tribunal, suggested he was not personally known to the writer and that such letters can easily be obtained by anyone.  The Tribunal also placed no credence on the Khalistan money and the map of Khalistan.

12. In relation to the change of name and false passport, Mr Singh claimed he had changed his name after his detention and torture in 1996 to Preet Singh and obtained a passport in that name to travel to Malaysia.  He claimed he used the same passport to return to India in 1998 and to leave again in 1999.  The Tribunal noted he no longer had the passport because he claimed to have given it to the smuggler in Indonesia.  There was no documentary evidence that he did use a false name, either by way of a passport or other documentation.  He was vague and made generalised statements about how he obtained a false passport and lived under a false name since 1996 in India and in Malaysia.  In the letters he had presented there was no mention of the fact that he had changed his name.  The Tribunal did not accept that Mr Singh had changed his name.  It therefore found he had left India legally on two occasions.  If the authorities wanted him, he would not have been able to leave India in that way.

13. In relation to the claimed detention and torture in 1996, the Tribunal found his claims that the authorities were looking for him and that he was detained and tortured in 1996 to be implausible.  He had no political profile and was not involved in any political activities.  His adviser had stated that his brother was the leader of Babbar Khalsa, but at the hearing Mr Singh denied his brother was the leader.  He said the Indian authorities thought his brother was the leader.  A search of the Tribunal’s database showed that one Wadhwa Singh was the leader of the Babbar Khalsa organisation in 1995.  It was said to be implausible that the Indian authorities would not know the real name and identity of the leader of Babbar Khalsa.  Country Information did not support Mr Singh’s claims that he would have been a target for the authorities.  Reference was made to a report from the Deputy Program Manager of Immigration at the Canadian High Commission in New Delhi who said in January 1997 that people who are not high profile militant suspects are not at risk in the Punjab today.  The high profile suspects might include a perceived leader of a militant organisation or someone suspected of a terrorist attack.  Sikhs with some slight perceived connection to militancy through a family member, for example, would not now be targets of the Punjab police.

14. The Tribunal did not accept that Mr Singh was detained or tortured or otherwise harassed by authorities.  It also noted that he did not claim asylum when he allegedly fled to Malaysia in 1996 and that this was inconsistent with his claimed fear of return to India.  It appeared that he lived in Malaysia legally for the two year period.  He therefore would have to have had the right paperwork and documentation to enable him to stay and work in Malaysia legally.  The fact he obtained such documentation did not suggest a rushed departure from India.  The Tribunal found that if Mr Singh were to return to India, the chances of him being detained at the airport and/or subsequently being targeted by police or otherwise suffering persecution were remote.

15. In relation to his claims of persecution because of ethnicity or religion, the Tribunal referred to Country Information stating India is a secular state in which all faiths enjoy freedom of worship and that government policy does not favour any religious group.  It noted there are significant numbers of Sikhs throughout India.  There are gurdwaras in most major towns in the north of India and some in the south as well.  It is unlikely that Sikhs would experience difficulty in practising their religion.  The Tribunal found Mr Singh did not face a real chance of persecution for reasons of his ethnicity or religion.

16. On the question of relocation, the Tribunal referred to Country Information stating that there were large populations of Sikhs in most areas of India who live in relative harmony with other Indians.  Mr Singh had said he did not speak Hindi well and therefore could not relocate, but at his first interview upon arrival he said he spoke Hindi, Malay, Punjabi, Urdu and some English.  In his application he stated his language in order of preference was Hindi/Punjabi, speak, read and write.  He spent two years in Malaysia where he spoke Malay.  The Tribunal did not accept that Mr Singh would not be able to relocate because of language difficulties.  He was able to live in Malaysia for two years where a totally different language was spoken.  He was educated in India for eleven years and was able to speak, read and write Hindi.  He had lived at a number of addresses in India.  His family have farms in Punjab and Uttar Pradesh.  He has in the past lived in a number of different places and been able to continue a normal life.  His family are still in India and have provided for him in the past.  The Tribunal considered on the basis of the whole of the evidence that Mr Singh was not a person to whom Australia had protection obligations under the Refugee Convention as amended by the Refugee Protocol.

17. The application that Mr Singh made to the Court seeking review of the Tribunal’s decision was in common form setting out two grounds: firstly, that the decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both; and secondly, that the decision involved an error of law in that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and it failed to rationally consider the probative evidence that was before it.  It is plain that Mr Singh had no understanding of the grounds upon which the application which he signed was made.  This is simply a common form ground of application which is used in the Port Hedland Detention Centre and it appears to be the same photocopy which is used and reused and simply filled out with different personal details on each occasion.

18. I gave Mr Singh an opportunity, on 18 April, to read from a prepared statement which I had asked him at a previous directions hearing to prepare, why he thought the Tribunal decision was wrong.  I had explained to him and repeated today, that the power of this Court is limited and that this Court cannot interfere with a Tribunal decision simply because he thinks it got the facts wrong.

19. Mr Singh referred to the following matters in his statement.  He said first of all that the Tribunal had accused him of not having changed his name.  He said he had in fact done that.  The people who helped him change his name and helped him obtain a passport he had not mentioned because he thought that if he did they might get into trouble because of him.  He said there were three men who helped him to obtain a passport and to change his name.  He then mentioned these three names.  He said the Tribunal had agreed with him that his brother was a member of the party, but had refused to believe that he was ever arrested, tortured or taken to gaol.  He asserted that whenever there is an incident in the area in which he lives, his whole family would get into trouble, his father would be taken into custody and kept in goal for a period of time.  He referred to the Tribunal findings about the currency, the letterheads and the maps and that any person can get hold of these things.  He said that is not the case.  He said the person holding such currency and papers and documents is in such grave danger in India that he cannot be guaranteed the safety of his own life or that of his brothers and sisters and of his other family members.  People who hold such documents are people who support a separate nation and they hold their lives in their hands and are in grave danger.  He referred also to the Tribunal’s findings that India accepts every religion.  He said that is not the case; the Sikhs are not even accepted as Sikhs in the Indian constitution and Indian law.  It is written in the Indian penal code  where Sikhs are referred to as people and Hindus wearing turbans and having long hair, whereas in fact they are a separate nation.  They don’t have temples, they have gurdwaras, but in spite of that the Indian law refers to them as Hindus wearing turbans and having long hair.  He asked, rhetorically, if India is a secular society, why does Indian law refer to them like that and why aren’t they referred to as Sikhs?

20. The Tribunal had also found, he noted, that he had produced documents after his case had been refused by the departmental officer.  He claimed that he asked the departmental officer to wait and make a decision on his case only when the documents arrived, but they did not listen to him.  He talked to his solicitor and the solicitor said they did not wait for the documents to arrive and that his case had been refused. 

21. This was the extent of the factual matters that he put to me in a written statement which was translated on 18 April.  He also said that he came here as a refugee; he had to move around India for a long, long time without any one place of rest.  When he came here and spent about seven to eight months in the Detention Centre, they had been the finest for him.  If he were to be forced to return, his dead body would have to be returned because he refused to go back alive.  He added also that he was asked by the Tribunal if he could leave the Punjab and go somewhere else in some other state.  He said he had already told the Tribunal that he lived in the Punjab and in other states.  The Indian government, he said, had drafted a new law which says that if anybody goes and rents a property in another state, they are first to inform the local police.  He had recently received news that people living in other states of India had been arrested.

1. It is plain that the basis upon which the applicant in this case seeks to challenge the decision of the Tribunal is on the merits of its findings as to fact.  There is nothing in the material that he has put before me and nothing on the face of the reasons that indicates any error of law or procedure or reviewable ground in relation to the Tribunal’s decision.  The application for review will therefore be dismissed with costs.

I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French.

Associate:
Dated:             2000

Mr P Singh appeared in person.
Counsel for the Respondent:	Mr P R MacLiver
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 April 2000
Date of Judgment:	27 April 2000