Singh v Minister for Immigration and Multicultural Affairs

[1999] FCA 1736

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1736

JATINDER SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 51 OF 1999

MANSFIELD J
6 DECEMBER 1999
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 51 OF 1999

BETWEEN:	JATINDER SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MANSFIELD J
DATE OF ORDER:	6 DECEMBER 1999
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application is dismissed.

2.        The applicant to pay to the respondent his costs of the application to be taxed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 51 OF 1999

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

JUDGE:	MANSFIELD J
DATE:	6 DECEMBER 1999
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant is an Indian citizen who arrived in Australia on 23 April 1996.  Soon after his arrival he applied for a protection visa under the Migration Act 1958 (Cth) (“the Act”). To procure that visa it was necessary that the respondent or his delegate be satisfied that the applicant was a person to whom Australia owed 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 (“the Convention”): see s 36(2) of the Act. The relevant provision of the Convention is Article 1A(2), which 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, …”

2. The application for a protection visa was considered by a delegate of the respondent, and was refused on 13 May 1997.  The applicant applied to the Refugee Review Tribunal (“the Tribunal”), for review of that decision, by application dated 17 June 1997.  On 25 May 1999, the Tribunal reached the same decision as the delegate of the respondent.  It decided that the applicant was not entitled to a protection visa and it affirmed the decision not to grant to the applicant a protection visa.

3. On 29 June 1999 the applicant brought this application for judicial review to the Court. The application for judicial review was amended to include several grounds, but on this application only one point has been pursued. It invokes the ground for judicial review under s 476(1)(a) of the Act that procedures required by the Act to be observed in connection with the making of the decision were not observed. The particular procedure to which reference has been made is that prescribed by s 430(1) of the Act. That is the section which imposes upon the Tribunal the obligation to prepare a written statement setting out its decision on the review, the reasons for its decision, its findings on any material questions of fact, and to refer to the evidence or other material on which the findings of fact were based.

4. Although the outline of submission, and the amended application for an order for review, also sought to invoke s 476(1)(e) of the Act (that is, that 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 Tribunal), the matters dealt with in the outline of submissions of the applicant and in the oral submissions of the applicant identify that complaint as going to the same point, namely the adequacy of the reasons of the Tribunal. If its reasons did not satisfy s 430, the application will succeed under s 476(1)(a). The reference to s 476(1)(e) does not add any further dimension to the application in the present circumstances.

5. The applicant’s claim was that he was a Sikh and, because of his involvement with the All India Sikh Student Federation between 1988 and 1989, that he fears persecution for a Convention reason if he were to return to India.  The Tribunal classified that as a fear of persecution by reason of his political opinion or imputed political opinion.  However, it does not matter whether it is properly so categorised.  The Tribunal clearly understood his complaint as relating to his position as an active Sikh, recognisable as such in India, and by reason of his activities, limited as they were in time, as a member of the All India Sikh Student Federation.

6. The Tribunal clearly accepted the applicant’s claim that for many years there had been a serious confrontation between Sikhs and others, particularly in the Punjab region of India.  The Tribunal referred to extensive country information showing the drastic and most regrettable consequences of that polarisation during the 1980s, leading to the deaths of many thousands of Sikhs at least up to the early 1990s, and involving very extensive human rights abuses.  It was during that period that the applicant joined the All India Sikh Student Federation and took part in its rallies.

7. He asserted, both to the Tribunal, and in his application for the protection visa, that in June 1989 he was arrested and detained for seven months.  He claimed that during this time he was beaten to procure a false confession, and he had signed a blank piece of paper apparently capable of being used in some way as an admission of his involvement as an active Sikh proponent.  He also produced to the Tribunal a medical certificate certifying that he was treated for multiple injuries to both legs from 6 January to 9 February 1990, during which time he was advised to have complete bed rest with active treatment.

8. The first complaint of the applicant is that the Tribunal did not make findings in its reasons for its decision in relation to the question of whether he was in fact detained and tortured for seven months in 1989 as he alleges.  The Tribunal, in that section of its reasons dealing with its findings and conclusions, referred specifically to that evidence.  It notes that the period to which it relates was a period at the peak of the insurgency and violence in Punjab.  It refers to the claim that the applicant had signed a blank piece of paper which in some way will lead to the police continuing to pursue him in the future.

9. The Tribunal, it is correct, did not make a specific finding that the applicant was detained and tortured for seven months in 1989.  It did not find it necessary to do so.  The reason is, as the Tribunal said, that:

   “I am satisfied that if he was accused or suspected of a serious offence or perceived as a militant in 1989 he would not have been released at that time when thousands of others were detained for long periods.  I am satisfied that at the time of his release he was not seen by authorities as a threat.  I am satisfied any fear he once had is no longer well founded on the basis of the country information that indicates the situation in the Punjab has changed significantly.”

10. Later in its reasons, the Tribunal referred to the same material and to some material which it rejected concerning the alleged arrest of the applicant’s mother.  It said:

    “Furthermore, noting that he took no political action and was not involved in any political group after 1989 I do not accept police would follow him with such vigour just to keep up their statistics or take a bribe when they could easily have found easier targets.  I note the applicant claims his wife was arrested when police were looking for him but she was released almost immediately.  If this did occur I am satisfied that it indicates police were not interested in the applicant as if he had been suspected of terrorist activity she would have been held for a longer period.  I am satisfied that if the applicant was ever arrested in India, it was on one occasion in 1989 and that he no longer has well‑founded fear of persecution as a result of that arrest.”

11. In my judgment, the Tribunal, given the foundation upon which it based its conclusion, did not fail to comply with s 430 of the Act by not making a positive finding that the applicant was detained and tortured for seven months in 1989 as he alleged or, on the other hand, in rejecting his evidence on that topic. The Tribunal has reached the conclusion that, whether or not that incident of detention and torture occurred, for the reasons which it gave in relation to the applicant’s personal activities since 1990 and changes in the state of affairs in India since 1990, the applicant would no longer be at risk of persecution were he to return to India. I do not think that it was necessary for the Tribunal to go further and make a specific finding about that allegation when, whatever the finding, it would have made no difference to its conclusion. In terms of s 430 of the Act, the reasons for its decision, the findings it made in relation to those reasons and the evidence upon which it relied are clearly identified.

12. There was one other matter upon which it was contended that the Tribunal had failed to make a particular finding.  It related to two pieces of information presented to the Tribunal.  The first is a lengthy document entitled Burning Punjab News dated 18 August 1998 and which contains extensive references to the position of Sikhs in India, in particular in the Punjab area.  It includes a paper, or portion of a paper, attributed to Dr Ami Laws from a human rights conference at Columbia which took place on 18 July 1998.  That material records, as the summary discloses, ongoing selective arrest, harassment and torture of some Sikhs in India well past the early 1990s and extending at least into 1996.  In addition, the applicant drew attention to an extract from a daily newspaper called The Daily Ajit containing an article concerning what appears to be an unwarranted arrest and detention of an American Sikh in India on 23 May 1996.

13. Again it is correct that that material is not referred to specifically by the Tribunal in its reasons for its decision.  However, the Tribunal in its reasons for decision has referred, at considerable length, to country information relating to the situation of Sikhs in the Punjab and in India.  That material includes material relating to the position of those persons extending up to the present time.  It shows that the Tribunal was aware of ongoing selective arrest, detention, harassment and, in some instances, mistreatment of Sikhs well into the 1990s and up to the present time.

14. Counsel for the applicant acknowledged that there was no significant difference between the views expressed by Dr Laws, as recorded in the publication to which I have referred, and in the description of the Tribunal as to the state of affairs in the Punjab, as noted by it in the country information to which it specifically referred in its reasons for decision. It is not the obligation of the Tribunal under s 430 of the Act to refer to every piece of information touching upon a topic before it, and to explain what weight it has given to that particular piece of information. That must be particularly so when the information generally is of a consistent nature. It would be more significant if there were, as sometimes there is, significant conflicting information about the state of affairs in a particular country or the area of a particular country. In those instances, one might expect the Tribunal to note that difference in information, to indicate what finding it makes in relation to that disputed information, and to explain why it has made that finding or why it prefers particular evidence against other evidence. That is not the situation here, for the reasons I have given. The particular newspaper article to which my attention was drawn concerning the arrest of an American Sikh in India in May 1996 provides but an illustration of the sort of material to which the more general country information referred. In my judgment, it was not necessary for the Tribunal specifically to address that piece of evidence.

15. It is not suggested otherwise that the Tribunal, in the description of the state of affairs in the Punjab, where the applicant primarily lived, was inaccurately recorded in its reasons or in its conclusions.

16. For those reasons, in my view the matter which has been argued on this application must fail.

17. It is significant, however, that the Tribunal reached its decision independently of those matters for another and separate reason.  The Tribunal properly addressed the questions whether the applicant was able to relocate in some other part of India and, if he were able to do so, whether he could do so without the fear of persecution or without being at risk of persecution in that other part of India, and whether it was reasonable for him to so relocate.  In approaching the matter, the Tribunal has, in my judgment, properly applied the principles which were laid down by this Court in Randhawa v the Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.

18. The Tribunal concluded that it was reasonable for the applicant to relocate in India, and that therefore his fear of persecution is not well founded in any event.  It is not sufficient for the grant of a protection visa that the fear of persecution be related to a particular region of a country in circumstances where it is reasonable for an applicant to relocate to another part of the country without being at risk of persecution.  That finding of the Tribunal has not been attacked on this application.  It provides an independent reason why the application was dismissed in the first instance, and why this application must fail.

19. Accordingly, in my judgment, the application must be dismissed.  I order that the application be dismissed.  I order that the applicant pay the respondent the costs of the application to be taxed.

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

Associate:

Dated:

Counsel for the Applicant:	Mr M W Clisby
Solicitor for the Applicant:	Mark Clisby
Counsel for the Respondent:	Ms S J Maharaj with her Ms J M Nunan
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	6 December 1999
Date of Judgment:	6 December 1999