Singh v Minister for Immigration and Multicultural Affairs

[1999] FCA 1586

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1586

AMARJEET SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

N 693 OF 1999

EINFELD J
27 OCTOBER 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 693 OF 1999

BETWEEN:	AMARJEET SINGH Applicant
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS Respondent

JUDGE:	EINFELD J
DATE:	27 OCTOBER 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant in this matter, a citizen of India of Sikh extraction, arrived in Australia on 22 May 1997.  On 22 August 1997, a delegate of the Minister declined to grant him asylum as a refugee, a decision which was affirmed by the Refugee Tribunal on 30 June 1999.  The applicant seeks to overturn the decision of the Tribunal and have a fresh hearing on grounds, as set out in the application, that certain statutorily required procedures were not observed, that it involved an error of law, that the decision maker was biased, and that there was no evidence to sustain the decision.

2. Both the written submissions on behalf of the applicant and the oral argument presented today did not seek to argue all of those grounds, and in fact the argument proceeded on a different basis altogether.  There were really only two issues raised.  One was the applicant's argument that his family had to place an advertisement in an Indian newspaper disowning or dissociating themselves from the applicant, to protect themselves from persecution by the authorities, no doubt as a consequence of the fact that the applicant was a member of their family.  Second was the dismissal by the Tribunal of at least two incidents in 1995 and 1997 as having either not taken place at all or having taken place for reasons unrelated to the Geneva Convention on Refugees.

3. The Tribunal's dealing with these matters was not satisfactory from any standpoint.  So far as the advertisement is concerned, the only way in which it has been possible to ascertain the Tribunal's view about this matter was by going to the transcript of the evidence of the hearing.  In that transcript there was an exchange between the Tribunal and the applicant concerning the way in which the applicant's father had been treated by the authorities on an occasion prior to his death in 1998.  The Tribunal dismissed the idea that people could protect themselves from persecution by putting a notice in a newspaper dissociating themselves from their family.  It stated that it attached no weight to the applicant’s assertion that the family has been, or was, in danger of being persecuted because of his association in some way with Sikh militants. 

4. Sections 424, 425(1) and 430(1) declare that it is simply not satisfactory for the Tribunal to deal with subject matters material to the hearing, and base its final decision, on personal views of this kind.  Not only was evidence before the Tribunal, or otherwise available, that such an advertisement was put in the newspapers, but if it was to be held that it was put into the newspapers for no apparent reason at all or unrelated in any way to the applicant's position, the matter required some detailed investigation and the conclusion properly explained.  It cannot simply be dismissed because it did not seem to be either weighty or realistic to the Tribunal.  Whatever the reason the inserter of the advertisement wants to achieve, and it does not need to be political or otherwise based on Convention grounds, it is not at all uncommon in some societies to have such advertisements appearing.  They certainly do appear in Indian society.

5. As for the Tribunal’s rejection of the applicant's factual claims concerning his treatment in India, it seems that the applicant did have some involvement with a Sikh separatist movement, and the Tribunal accepted that he was arrested in 1994 presumably because of his involvement with this activity.  There seems to be ample evidence, and it does not seem to be disputed, that at a certain time the authorities in the Punjab were not particularly responding to central Government directions in relation to the treatment of people who were advocating for a separate Sikh state.  They were, as a consequence, arresting and sometimes mistreating people who either were, or were thought to be, involved in such a movement.  It is also not disputed on either side that the applicant's involvement was not at a high level.  In other words, he treated himself, and seems to have been treated by everyone, as someone who, whilst perhaps supporting separatism for Sikhs, was neither high profile nor a leader of the movement.  It also seems to be agreed that over the intervening years the police in Punjab have slowly modified their activities, if not come into line with central Government policy not to persecute people on this ground.  In this respect, the Tribunal's findings were quite equivocal and unclear.  The acceptance that the applicant was arrested in 1994 came with an acceptance that he was released and not prosecuted because he paid a bribe.  In that respect, there seems to have been an acceptance by the Tribunal that the applicant did attract adverse attention because of his involvement in the movement.

6. On the other hand, the Tribunal did not accept the evidence of a second occasion in 1995 when the applicant alleged that the police came to arrest him.  The Tribunal said in this regard:

   I find it implausible that car-loads of Indian police going to arrest a suspect would be unable to catch him when he fled from the back door after his mother screamed “run”.

7. The Tribunal described this account as a fabrication.  A fabrication in this context means a deliberate lie and invention.  I have searched but have not found in the transcript any suggestion of this kind being put to the applicant.  The only reference in the transcript to this incident was a series of relatively benign questions in respect of this incident which commenced with a question by the Tribunal as to what happened in 1995, to which the applicant replied:

   A.In 1995 I have gone back police would come to take me away but I would try to keep away from them so they would not find me.  But they had been keeping an eye on my house in 1994-1995.

   Q.Were you arrested.

   A.In 1995.

   Q.Anytime since 1994.

   A.I ran from home and I did not stay there.  My whole family was very frightened.

   Q.So you were ever been arrested by the authorities only once in 1994.

   A.Yes.

   Q.Why do you think they would arrest you now if you went back.

   A.       They are still try to catch me.

8. It is my view, and it has been referred to by other judges in other cases, that if the Tribunal is intending to make a finding of a deliberate fabrication in evidence on a material matter, an error of law may be found if it does not put the matter to the applicant and seek his response.  In this particular instance this was not done.  As a consequence the Court is not able to ascertain what the applicant's answer would be to the suggestion that he had fabricated this claim.  It is not so much the detail of the claim that is important but the fact that it is to be asserted that it was a fabrication. 

9. The Tribunal accepted that the police did go to the applicant's house in May 1997 but concluded that this was not for political reasons, but for their own pecuniary gain.  In this respect the Tribunal has given proper support reasons for what it was saying and thus demonstrated a stark contrast with its rejection of the other matters.  The Tribunal has argued quite persuasively that the applicant had recently returned from well paid employment in the Middle East and that the independent evidence was that the Indian police quite often falsely arrest such people as a means of obtaining a bribe.  If so, the event took place not for political reasons but for financial gain.

10. The statute and the authorities have been clear for some time that it is not necessary under section 430 for the Tribunal to give a reason for every factual finding that it makes, but only to do so on material matters for the decision.  If this decision turned on the applicant’s allegations concerning the arrests, particularly the incident in 1995 when he escaped from the police, then it would have to be found that the Tribunal had not given adequate reasons for its assertion and had not followed appropriate procedures in dealing with the matter.  There would have been an error of law because on the face of it, it appeared that the Tribunal had come to the conclusion first and then worked back to the reasoning.  That would not be an appropriate way to conduct the duties which the Tribunal has under the statute. 

11. 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, on the grounds that when he was in India in 1993 and 1994, and possibly 1995, he was so engaged in supporting Sikh militants for a separate Sikh state that in 1999, despite the changes that have taken place in the way in which these matters are being dealt with by the Punjabi authorities as well supported by the evidence, the applicant could not now expect to be protected by his own country from persecution.  I note the point made on behalf of the applicant, taken from the evidence, that the change in the attitude of the Punjabi authorities is only an evolving one, and has not necessarily yet been secured.  But 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. 

12. In this regard the Tribunal dealt fairly directly with the assertions which the applicant made.  For its conclusion that the police came to his house in May 1997 in search of a bribe, most likely in consequence of the fact that he had just returned from a job in the Middle East, probably had a significant amount of money, and was likely to buy whatever freedom he needed, the Tribunal relied upon what I regarded as quite compelling evidence.

13. Another reason for the finding that he was not at risk of persecution was the considerable ease with which the applicant was able to ingress and egress India over a number of years and obtain a passport.  When the applicant came to Australia he was using a valid Indian passport issued in 1988 by the Indian Embassy in Saudi Arabia.  This was a replacement for his earlier passport which had been issued in India 10 years earlier.  The present passport was renewed in Saudi Arabia in April 1993.  The passports produced to the Tribunal at the hearing showed that during the their “lives”, the applicant had passed through Indian airport controls some 21 times in total, mostly for employment in a number of Middle Eastern countries.  Of these journeys the Tribunal noted that eleven were in the 10 years prior to the hearing, between 1989 and 1999, six since 1993, all via Delhi Airport.  The applicant obtained his Australian visa in Saudi Arabia in March 1997 prior to his last return to India in April 1997, just a month before he left for Australia.

14. The Tribunal came to the conclusion that had he been wanted by the Indian authorities for separatist sympathies, there would have been ample opportunities for his detention or mistreatment in the very period of time between 1994 and 1997 when he claimed specific persecution of which he gave specific evidence.  Relying upon independent evidence of the Australian Foreign Ministry, amongst others, that Indian airport security checks are very thorough, the Tribunal found it implausible that a wanted person could pass through security so many times without drawing the attention of the authorities.  It accepted that the situation in the Punjab is now reasonably peaceful and that only high profile militants are at risk.  "Militants" are not necessarily people who support or seek independence or separatism, but people who confront the authorities with some form of unlawfulness or indiscipline, violent or otherwise. 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.

15. 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 decided that the applicant could not have, in objective terms, a fear of persecution in terms of the Convention that was well founded.  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, receiving renewals of his passport, drawing attention to himself by having an Australian visa in his passport on an occasion when he entered and left the country, and when he, himself, does not suggest that he is now an activist in support of the Sikh separatist cause.  It was certainly open to the Tribunal to find he can be in little or no danger from the Indian authorities.

16. The Tribunal’s task was to determine whether at the time it was hearing the matter the applicant was at risk of persecution in his own country and unable or unwilling to avail himself of his own country's protection.  It seems to me that its rejection of the dramatic police event in 1995, although unsatisfactorily dealt with in the reasons for determination, was not material to that matter.  Accordingly, it is my view that no relevant error of law emerged from the determination of the Tribunal and the application must therefore be dismissed.

    [AFTER DISCUSSION]

17. The application is dismissed with costs.

I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Marcus Einfeld.

Associate:

Dated:             27 October 1999

Solicitor for the Applicant:	Mr M. Newman (Newman & Associates)
Counsel for the Respondent:	Mr J. Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	27 October 1999
Date of Judgment:	27 October 1999