Singh v Minister for Immigration and Multicultural Affairs

[2000] FCA 464

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 464

AMARJEET SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 1301 OF 1999

DRUMMOND, NORTH, MADGWICK JJ
SYDNEY
3 MARCH 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1301 OF 1999

BETWEEN:

AMARJEET SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:

DRUMMOND, NORTH AND MADGWICK JJ

DATE OF ORDER:

3 MARCH 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant is to pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY		N 1301 OF 1999

BETWEEN:

AMARJEET SINGH

Applicant

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent

JUDGE:	DRUMMOND, NORTH AND MADGWICK JJ
DATE:	3 MARCH 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(revised from transcript)

MADGWICK J

1. The appellant, Mr Amarjeet Singh, appeals against the decision of a judge of this Court, given on 27 October 1999, by which the appellant's application for a review of a decision of the Refugee Review Tribunal ("the Tribunal"), given on 30 June 1999, was dismissed.  In that decision, the Tribunal had affirmed the decision of a delegate of the respondent Minister not to grant the appellant refugee status. 

   Factual background

2. The appellant is an Indian national of the Sikh faith, who arrived in Australia on 22 May 1997.  His claim is that he fears persecution by the Indian authorities, more particularly the Punjabi authorities, and he fears the inability of the Indian Government adequately to control those authorities because of his involvement in the Sikh separatist movement. 

3. The appellant explained to the Tribunal that in the early 1980s, while working in Dubai, he became a follower of a leading Sikh religious figure and thereafter took an active role in Sikh politics.  Amongst other things, he claims to have been an active member of various organisations dedicated to the establishment of an independent Sikh state (although this, it seems, is no longer a goal to which the appellant subscribes).  He organised party rallies, raised funds in Dubai and transmitted them to India, and engaged in the support of the poor, in a context which may have been one of gaining political support for the organisations that he himself supported. 

4. The appellant claimed that in January 1994, after a major rally, he had been arrested, detained and tortured.  He was only released after 20 days when his people arranged the paying of a bribe for him.  In March 1995, he claimed a group of policemen with cars came to his parents’ home to arrest him but he was able to escape by the back door.  Further, he says that in May 1997 the police came to his parents’ home, searched there for him and made threats.  He says that he then felt that he had no other option but to leave the country.

5. He also claimed before the Tribunal that certain authorities had harassed members of his family because of his own involvement with the Sikh movement.  In particular he suggested that in 1995 his father had been beaten so severely that it resulted in his subsequent paralysis and ultimately was the cause of his death in 1998. 

6. As a result of these events, the appellant claimed that his family, for their own protection, had sought to dissociate themselves from him.  This was achieved, the appellant suggested, by the publishing of a notice in the local newspaper disowning him.  A copy of that notice was provided to the Tribunal.

   The hearing before the Tribunal

7. In the hearing before the Tribunal on 15 March 1999, the Tribunal member interviewed the appellant.  In the interview, the Tribunal member raised with the appellant, among other things, the claim that his family had dissociated themselves from him by means of the newspaper advertisement.  The Tribunal member clearly did not believe the appellant's contention that Sikhs who might have been at political risk in the Punjab could protect themselves simply by putting a notice in their local newspaper.  The Tribunal member concluded the discussion during the hearing on that matter by stating "I attach no weight to that whatsoever".  That claim by the appellant was not mentioned at all in the Tribunal's written reasons. 

8. As to the appellant's other claims, the written reasons of the Tribunal member indicate that the Tribunal:  accepted the appellant's claims that he was arrested, detained and tortured in 1994;  regarded the claimed narrow escape from the police in 1995 as a fabrication;  accepted that the police did come to his family's home in 1997, but did not accept that the visit was motivated by a reason within the meaning of the Convention Relating to the Status of Refugees 1951 (“the Convention”).

9. What, for present purposes, are the crucial reasons of the Tribunal are contained in the following passage:

   “I accept the applicant may have been detained in this manner on one occasion and that the police have come looking for him on some other occasions when he has returned from well paid employment in the [Middle East], however, on his own evidence, he was a known benefactor of the needy, and I am not satisfied that the police interest in him was for political reasons rather than their own pecuniary gain. 

   I accepted the applicant participated in the Sikh separatist movement.  However, I find that he was not a high profile activist and is not of interest to the authorities for political reasons.  I draw support for this conclusion from the evidence that he has been able to enter and leave India 21 times using a passport in his real name and that his passport has consistently been renewed by the authorities.
   …
   I am satisfied from the independent evidence that the situation in the Punjab is now quite peaceful and only high-profile militants are at risk.  I have already stated my finding that the applicant does not fit that description.”

   The hearing before the primary judge

10. As we understand the matter, two issues were agitated before the primary judge.  The first raised the manner in which the Tribunal had dealt with the appellant's claim that his family had dissociated themselves from him.  The second was the way in which the Tribunal had dismissed the appellant's claims that he was pursued by the police, especially in 1995 but also in 1997, as either in the first place not having occurred or not having occurred for a Convention reason. 

11. The primary judge was highly critical of the Tribunal's approach, particularly in relation to the treatment of the claimed family dissociation and what I will call the claimed 1995 close escape.  His Honour appears clearly to have held the view, although he did not express a concluded opinion on the point, that the ways the Tribunal dealt with both those matters amounted to errors of law.  Nevertheless, his Honour did not regard those shortcomings on the part of the Tribunal, as he saw them, as entitling the appellant to relief at the hands of the Court.  Having referred again, in a summary way, to those criticisms that his Honour had of the Tribunal, his Honour continued:

    “This case, however, is not really about those matters at all.  It is about whether the applicant now fears persecution, should he be returned to India…

    despite the changes that have taken place in the way in which these matters have been dealt with by the Punjabi authorities as well supported by the evidence… It seems to me that there was evidence before the Tribunal, which it was at liberty to accept, that the change had been so far sufficiently great as to make it likely that the matter can be looked at in 1999 in a different way than perhaps in 1994 and 1995 so that he ought not now to be found to have a well founded fear that he will be persecuted for his activities so many years ago.  Even then he was not a leading or major activist in the movement, and on his own evidence has not been doing anything in support of the movement for a number of years, either in Australia or when he was still in India.”

    Later his Honour continued:

    “The Tribunal found that the applicant did not fit the description of an activist or high profile militant, and at no stage in his evidence did the applicant challenge any such finding. 

    It seems to me that the Tribunal based its decision in this case, whatever else its reasons for determination reveal, on that simple fact... It is difficult for the applicant to argue to the contrary if he is moving in and out of his country on a regular basis.
    …
    It seems to me that its rejection of the dramatic police events in 1995, although unsatisfactorily dealt with in the reasons for determination, was not material to [the question of persecution].”

12. The primary judge's use of the term “material” was mainly directed to the fact that, as his Honour saw it, such errors as the Tribunal had made were not fatal to its ultimate decision. 

    Submissions made before this Court

13. Upon appeal in the written submissions for the appellant, criticism of the Tribunal's approach to the alleged disowning of the appellant by his family, and of the 1995 alleged pursuit by police, were again offered.  These are, with respect, however, hardly to the point. 

14. The point relied on by the primary judge to dismiss the application for judicial review, namely, the lack of present danger and danger in the foreseeable future to the appellant, was sought to be met in two ways.

15. Firstly, assertions were made that, having regard to the nature of the other errors found by his Honour, it was unsafe and inappropriate to permit that ultimately crucial finding of the Tribunal to stand.  But no inference of actual or even apparent bias would, in my opinion, arise from the way the Tribunal dealt with those other matters, unsatisfactory though its treatment of those matters appears to have been.  For us to hold that it was in any other sense unsafe or inappropriate to permit the ultimately crucial finding to stand would be to enter upon a mere merits review of that finding, which is a course not open to the Court.

16. The second suggestion is that his Honour himself actually entered upon the merits by approving the findings of the Tribunal on the relevant factual issue.  However, it seems to me that that is no more than a misunderstanding of what his Honour was saying.  All his Honour was indicating was that he could see no legal basis for impugning the finding that conditions had so changed that the appellant would not now be at risk, if he ever was.  In that, in my opinion, his Honour was quite correct. 

17. In oral submissions the solicitor for the appellant raised some other matters.  The Tribunal offered as an alternative hypothesis for the 1997 visit by the police to the appellant’s parents’ home, which the Tribunal member accepted had occurred, that the police may very well have been acting in pursuit of what is apparently a regrettably common practice on the part of police in rural India, namely, to arrest persons who are thought to have money or to have the means to command monetary support from their relatives, in order that the police might benefit from taking a bribe for the release of the arrested person.  The criticism now made is that there was no evidence that the appellant or his people had money so as to make that hypothesis in any way a realistic one. 

18. However, the material before the Tribunal did show the following.  First, the appellant was a man of some education.  Second, he was working in Dubai; it seems to me that the Refugee Review Tribunal, constantly considering conditions including economic conditions in a wide range of countries, would have been able to draw on a degree of expertise to assume that an Indian guestworker in Dubai is likely to have been employed at rates which were handsome by Indian standards and, indeed, there are some references in the written material to dollar amounts earned by the appellant that could found an inference that indeed he was such an earner in Dubai.  Third, he had been in and out of India for travel apparently other than by land on a good many occasions in a relatively few years.  Such travel costs money and the appellant obviously had the means to command it.  Fourth, the appellant says that he had carried into India seemingly substantial amounts of money that he had raised abroad for political purposes.  Therefore, it seems to me that there was material from which the Tribunal could have inferred that the police might have regarded the appellant as a suitable monetary target. 

19. A further criticism was offered on the score that the Tribunal member had not put that hypothesis to the appellant and given him an opportunity to refute it.  It is true the Tribunal member appears not to have done that.  But whether there was a departure from legally appropriate standards on the part of the Tribunal needs to be measured against an understanding of the way the Tribunal member was really dealing with that matter.  The Tribunal member might have contented himself with saying that he simply did not accept that, whatever the reason for the police coming to look for the appellant in 1997, it had anything to do with potential political persecution of him.  There was material which might have sustained such a finding.  The Tribunal member did in fact say that he did not accept that the police were there for that reason.  He then offered the alternative hypothesis to which I have referred.  It seems to me that the Tribunal member was doing little more than explaining one way in which the police might have been interested in the appellant, other than for Convention proscribed reasons.  In those circumstances, it does not seem to me that it would be an error of law that would affect the decision for the Tribunal not to have put the matter to the appellant.

20. In any case, the failure to put the matter to the appellant would not touch or overcome the point that the Tribunal found, and there was apparently ample evidence to enable it to

    
    
    

    reach a conclusion to this effect, that the appellant did not now, or in the foreseeable future, actually have any objective reason for fear based on Convention grounds.

21. The final criticism was that the Tribunal member failed to consider whether in 1997 the police might not have had a mixed motive for looking for the appellant; for political reasons, as well as to extort money from him and/or his relatives.  It seems to me that, given the circumstances I have described in which the Tribunal member raised the matter of possible extortion, it cannot be said to be an error affecting the decision of the Tribunal member that he did not erect for himself that question, which it is true logically could arise, and go on to deal with it.  It is perhaps significant that it is only on appeal that this matter seems to have been raised for the first time, and then only in oral submissions.  The matter to my mind, is an instance of over-fine scouring of the Tribunal’s reasons for decision in an effort to find a basis for criticism of it which really lacks substance. 

    Disposition

22. For these reasons, in my opinion, the appeal should be dismissed with costs.

    DRUMMOND J

23. I agree with the orders proposed by Madgwick J and with his reasons.

    NORTH J

24. I also agree that the appeal should be dismissed with costs.  I so agree for the reasons expressed by Madgwick J.  The orders of the Court will be that the appeal be dismissed with costs.

I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate:

Dated:            3 March 2000

Solicitor for the Applicant:	M Newman of Newman & Associates
Counsel for the Respondent:	J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 March 2000
Date of Judgment:	3 March 2000