SZDJQ v Minister for Immigration

[2005] FMCA 415

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDJQ & ANOR v MINISTER FOR IMMIGRATION [2005] FMCA 415

MIGRATION:  Application to review decision of Refugee Review Tribunal – whether Tribunal failed to determine the actual claims of the applicant, failed to correctly interpret or apply the law or engaged in illogical reasoning – whether Tribunal failed to exercise jurisdiction by disregarding and refusing to consider claims – whether Tribunal failed to correctly interpret the law or make findings about the applicant’s membership of a particular social group.

Migration Act 1958, ss.91R, 91S, 414

Morato v Minister for Immigration, Local Government and Ethnic Affairs (1992) 39 FCR 401
V v Minister for Immigration & Multicultural Affairs (1994) 92 FCR 355
NABE v Minister for Immigration & Multicultural Affairs& Indigenous Affairs (No 2) [2004] FCAFC 263
Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184
VWST v Minister for Immigration & Multicultural Affairs& Indigenous Affairs [2004 ] FCAFC 286
NACBv Minister for Immigration & Multicultural Affairs& Indigenous Affairs [2003] FCAFC 235
Minister for Immigration & Multicultural Affairsv SGLB (2004) 27 ALR 12
Minister for Immigration & Multicultural Affairs v Y [1998] FCA 515
VWST v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 286
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002; A [2003] HCA 30
Minister for Immigration & Multicultural & Indigenous Affairs v VFAY [2003] FCAFC 191
Re, Minister for Immigration & Multicultural Affairs; Ex parte Cohen (2002) 75 ALJR 542
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Dranichnikov v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 197 ALR 389
NAPU v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 193
Minister for Immigration & Multicultural Affairs v S152/2003 [2004] HCA 18

Applicant: SZDJQ & ANOR

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No: SYG 1185 of 2004

Delivered on: 7 April 2005

Delivered at: Sydney

Hearing date: 25 November 2004

Judgment of: Barnes FM

REPRESENTATION

Counsel for the Applicant: Mr D. Godwin

Solicitors for the Applicant: Brett Slater Solicitors

Counsel for the Respondent: Mr J. Smith

Solicitors for the Respondent: Sparke Helmore

ORDERS

1. That the application is dismissed. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1185 of 2004

SZDJQ & ANOR

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

Background

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 16 March 2004 affirming a decision of a delegate of the respondent not to grant the applicants protection visas.  The applicants, who are husband and wife, are citizens of India who arrived in Australia as visitors on 30 December 1996.  They originally applied for protection visas on 29 January 1997 but the documents contained no claims.  The application was rejected and the applicants sought review by the Tribunal.  The Tribunal affirmed the decision of the delegate on 15 April 1998.  On 15 July 2003 the applicants lodged a further application for a protection visa claiming, as was conceded by the Department, that their original application was invalid and therefore no prior application for a protection visa had been made.  However the application was refused.  It is the Tribunal decision in relation to this application that is under consideration. 

2. Both applicants made specific claims under the Refugees Convention as amended by the Refugees Protocol.  However the Tribunal found that the claims of the applicant wife depended entirely on the claims made by the applicant husband.  For convenience the applicant husband is referred to as the applicant. 

3. The applicant claimed that he was born in the Punjab and was a Hindu by religion.  He was employed by the police and armed forces as a photographer.  In his 2003 protection visa application he claimed that from 1989 on he was required by the police to take photographs of people who had died in police hands and that he had been forced to do so in such a way as to make it appear that the people had died in an ‘encounter’ with the police.  He claimed that in this way the police could get away with what he described as ‘acts of treacherous murder’.  He claimed that he had been threatened with harm by the police if he did not obey them.  He said that by the early 1990s the police had started to take him with them to isolated places and had shot people in front of him.  He claimed that on one occasion a young Sikh lawyer, who was the son of one of his close friends, had been killed and that he had been called upon to take photographs.  He had handed a copy of the photographs to Jaswant Singh Khalra, the Secretary of the Akali Dal human rights wing, in late 1994.  Mr Khalra had subsequently been arrested and had disappeared.  The applicant claimed that the police had started to harass him and that they knew that he had handed over the photographs.  Mr Khalra’s abduction had been investigated and Punjabi police found responsible.  The applicant believed he had been targeted to eliminate links.  His home and studio were raided in July 1996.  He did not return to his home thereafter.  He claimed that the police and army were still looking for him. 

4. The applicant claimed that his wife had suffered cardiac arrests because of the shock and trauma and that because of mental illness she had attended STARTTS for over a year and a half (although her medical evidence did not show any cardiovascular involvement or disease but that she was suffering from anxiety neurosis).  He and his wife were granted visas to travel to Thailand in October 1996.  They did not use these visas.  They obtained Australian visas on

   
   

   16 December 1996 and left India on 29 December 1996. 

5. In a statutory declaration provided to the Tribunal the applicant claimed that in 1984 the army had used his services during Operation Bluestar (the storming of the Golden Temple in Amritsar).  At the request of the police he had started to photograph dead bodies every two or three days.  He described occasions when he believed people had been killed in his presence by the police or where he had taken photographs of dead bodies.  He claimed to have seen the police torture people and to have witnessed an illegal cremation.  He believed he would be targeted by a number of police officers about whom he could give evidence in a future prosecution, that he would be seen by the police force in general as someone who had betrayed them by giving photographs to Mr Khalra and that the central government would attempt to silence him because evidence of the excesses of the police in Punjab would be embarrassing and politically harmful to them.

6. The applicant provided supporting documentation, particularly as to his provision of photographs to Mr Khalra.  His advisor submitted that there was a real chance that the applicant would be targeted by police under investigation or involved in illegal cremations or extra-judicial killings against whom the applicant could testify and/or by members of the police force who saw his behaviour as politically unacceptable and that he could not access protection from the authorities who were actually hindering prosecution of corrupt officers.

7. At the Tribunal hearing the applicant produced photographs of dead bodies.  He said he had taken these photographs in the course of his work for the police.  However he told the Tribunal that (contrary to his statutory declaration) he had not had anything to do with Operation Bluestar.  His work photographing dead bodies had increased after 1989.  He clarified that he had claimed to have witnessed only two incidents when people were killed by the police.  On one occasion he had been about 100 metres away from where the shooting was taking place.  He said that he had hidden himself in the back of the jeep in which he was travelling.  After the shooting had stopped the police officer sitting beside him told him to get up.  Because he had heard shooting and there had been a dead body he had concluded that the police had killed the person.  On the second occasion he said that a particular officer had left the room at a police station.  Shortly afterwards he had heard three shots.  He conceded that he had not in fact seen this officer fire the shots. 

8. The applicant claimed that in 1994 he showed a friend the photographs of the body of his friend’s son and a few days after the incident gave the photographs to Mr Khalra.  He then refused to work for the police.  The applicant claimed that he and his family had been targeted by the police and that they had been in hiding most of the time after December 1994 before leaving India.  His home and shop were raided in July 1996. 

9. The applicant claimed to fear persecution and that he was now sought by members of the police and army as a result of his actions with regard to Mr Khalra.  He also claimed that he was still being sought by rogue elements of the police or the army acting in an unofficial capacity. 

The Tribunal decision

1. The Tribunal accepted that the applicant worked as a photographer for the police and army in Punjab.  It noted that his evidence as to what he actually did had varied over the course of processing of his application.  It accepted his evidence at the hearing in this regard in preference to evidence in his statutory declaration.  It accepted that in his capacity as photographer for the police and the army the applicant took photographs of dead bodies.  It accepted that, contrary to his earlier more general claim about witnessing shootings, he had only been present on two occasions and on neither occasion had he in fact been an eye witness to the killings.  It did not accept a claim he had made at the first Tribunal hearing that the police made videos of live persons whom they had killed so it would look like an ‘encounter’.  Such claim had not been repeated in the course of the second visa application and the Tribunal accepted that the applicant only claimed to be present when people were killed by the police on two occasions. 

2. The Tribunal noted the suggestion by the applicant’s representatives after the hearing that in previous statements the applicant may have ‘set the matter somewhat high’ with regard to his observations of the Punjab police.  It was claimed that this was attributable to the trauma the applicant had experienced and the pressure he had been under from, among other sources, his wife.  It was submitted that he had extreme difficulty with memory and concentration and was easily confused and that this should be taken into account when considering his evidence.  The Tribunal did not consider it possible to say that the claim with regard to the videos was the product of trauma or difficulties the applicant may have with memory or concentration, although it acknowledged that the fact that an applicant may yield to temptation to embroider an account of his history was not surprising. 

3. The Tribunal accepted that the applicant ceased working as a photographer for the police and army in Punjab after he was asked in November or December 1994 to photograph the body of a young Sikh lawyer who was the son of one of his friends.  It accepted (as corroborated by letters from the secretary of the Khalra Mission Committee) that he had shown the photographs to a friend and that he then gave them to Mr Khalra at the end of November or beginning of December 1994.  It accepted that the police suspected that he had handed over the photographs, that he had denied this to the police but had told them that he could no longer take photographs of dead bodies.

4. However the Tribunal did not accept the applicant’s evidence at the hearing that for most of the time between December 1994 and July 1996 he did not live at his home.  It preferred his evidence in his second protection visa application that he continued living at his home until 1996.  It noted inconsistencies in his evidence as to where he had lived in the various claims that he had made.  It stated “No doubt if the applicant had been in fear of the police or the army from December 1994 onwards he would have taken steps to leave India much earlier than he did.”

5. The Tribunal accepted that the applicant’s home and his shop were raided by the police in July 1996 but found that it was apparent that the police were not acting in an official capacity.  It noted that there was no suggestion that the applicant had ever been charged with any offence, or that a warrant had ever been issued, or that he was wanted by police or army officials acting in an official capacity.  He had left India travelling on a passport in his own name.  This suggested to the Tribunal that he was not wanted by police or army officers acting in an official capacity. 

6. The Tribunal found that the fact that the applicant and his wife had obtained visas to travel to Thailand but did not use them, “preferring instead to wait in India until they were issued with visas to travel to Australia, suggests that they did not in fact fear being persecuted while they remained in India”.  The Tribunal noted the applicant’s explanation that he had been guided by family members who suggested that he should come to Australia where his son was studying.  The Tribunal found the suggestion that his son had urged the applicant to wait for Australian visas so that he could assist them in Australia reinforced the impression that the applicant did not fear being persecuted in India and considered that he and his wife could remain there safely until such time as they were able to join their son in Australia.  Having regard to their decision to remain in India until they were granted Australian visas the Tribunal did not accept that the applicant and his wife genuinely held a subjective fear of being persecuted at the time they left India. 

7. The Tribunal considered that the distress the applicant and his wife exhibited when giving evidence reflected the strength of their desire to remain in Australia rather than any fear of being persecuted if they returned to India, as their own behaviour in waiting for visas to come to Australia belied the claim of the applicant that he feared the central government would attempt to silence him as evidence of the excesses of police in the Punjab would be embarrassing and politically harmful.  The Tribunal also noted that there was nothing in the applicant’s evidence to suggest that the central government had ever sought to harm him in any way and that the applicant’s own evidence indicated that in December 1996 the Supreme Court had ordered the Central Bureau of Investigations to continue its investigations in relation to illegal cremations, to register cases where necessary and had directed the National Human Rights Commission to hold hearings particularly with regard to the issue of compensation. 

8. The Tribunal did not accept that the applicant was ever sought by police or army officers acting in a rogue capacity or that he was still being sought by rogue elements of the police or the army acting in an unofficial capacity.  While the applicant provided a list of named officers against whom he could give evidence, the Tribunal found it apparent from what he had said at the hearing that such capacity would be extremely limited.  He claimed to be an eye witness to people being killed on only two occasions and in fact on one of these occasions he was a hundred metres away hiding in a jeep, while on the other he did not actually see shots being fired.  It had been submitted that it was not the evidence that the applicant could give that was important, but the evidence that the police thought that he could give, but the Tribunal noted that since the alleged culprits were themselves police officers they would presumably have had a good understanding of what was required to secure a conviction.  In making this finding the Tribunal did not give weight to a supporting statement made by a Mr Lal as it found him not to be a truly independent witness. 

9. The Tribunal did not accept that the applicant could assist thousands of families to seek justice for the atrocities carried out by the Punjab police and Indian army as claimed in a letter from the secretary of the Khalra Mission Committee.  The only evidence of contact with the applicant by the person who had made this claim was that the applicant had handed photographs to Mr Khalra in his presence which Mr Khalra then gave to this person.  The Tribunal had regard to the fact that the applicant’s own evidence was that he was an eye witness to police shooting people on only two occasions.  He had also claimed to have seen the police torture people, to have witnessed an illegal cremation and to have taken photographs of dead bodies in such a way as to conceal the involvement of the police in the deaths.  However the Tribunal found it relevant that his memory was failing, that he was easily confused and that it was over nine years since he had any involvement with the police and/or the army.  While he had threatened to hand over incriminating evidence to various organisations, the only evidence he had produced were photographs, apparently of six separate dead bodies.  The Tribunal did not accept, on the basis of the evidence before it, that the applicant could assist thousands of families to seek justice as claimed. 

10. Nor did the Tribunal accept that the applicant might be required to give evidence in connection with Mr Khalra’s abduction by police officials in September 1995 or that he could be perceived by police or army officers as a person who might be prepared or required to give such evidence, given his limited contact with Mr Khalra and the fact that he ceased to have any involvement with the police or army in the Punjab in December 1994. 

11. The Tribunal went on to find that, even if it were to accept that the applicant was able to give evidence in relation to atrocities committed by police or army officers in the Punjab or that he could be so perceived, the persecution the applicant feared would not bear the requisite connection with one of the five Refugees Convention reasons.  The Tribunal did not accept that the central government would attempt to silence the applicant or that the essential and significant reason for the persecution the applicant feared was his membership of a particular social group constituted by persons who could testify against corrupt practices in the police force as contended (on the reasoning of the Full Court of the Federal Court in Morato v MILGEA (1992) 39 FCR 401). The Tribunal considered that if he could give such evidence or was so perceived it would be his capacity or perceived capacity as an individual to do so which would motivate the officers in question to attempt to prevent him from giving evidence, not his membership of any ‘particular social group’ for the purposes of the Convention. The Tribunal referred to the distinction between what a person is – a member of a particular social group – and what a person has done or does or may do as discussed by Black CJ in Morato at 404. Nor did the Tribunal accept the submission that the essential and significant reason for the persecution the applicant feared was his membership of the particular social group constituted by his family, albeit that his family constituted a particular social group for the purposes of the Convention.

12. Finally, the Tribunal did not accept that the applicant feared persecution for reason of his real or imputed political opinion against the police force and the authorities or the government and/or their activities.  The evidence suggested that the police or army officers he claimed to fear wanted to eliminate him as a witness to the atrocities.  There was nothing to suggest that the motivation of his persecutors was his real or imputed political opinion.  The Tribunal accepted that, as stated in V v MIMA (1994) 92 FCR 355, an attitude of resistance to systemic corruption in government authorities can amount to an expression of political opinion, but found that the applicant in the present case had not engaged in a course of conduct which could be regarded as manifesting a political opinion. He had not made public accusations and his only action was his refusal to photograph dead bodies and handing the photographs of the dead body of his friend’s son to Mr Khalra. There was no evidence to suggest that those whom he might fear would kill him were motivated in any way by any perception they may hold of his political opinion. His own evidence suggested that the police or army officers wished to eliminate him because of his capacity to testify against them. Ultimately, the Tribunal did not accept that the essential or significant reason for the persecution which the applicant feared was his real or imputed political opinion or any other Convention reason.

1. The Tribunal also considered the claims of the applicant’s wife. It found that, while it may be argued that she feared persecution as a member of the applicant’s family (a particular social group), as it did not accept that the applicant feared being persecuted for a Convention reason and as the wife’s fear of persecution was entirely based on that of the applicant, it was to be disregarded under section 91S of the Migration Act 1958.

2. In conclusion, the Tribunal was not satisfied that either the applicant or his wife had a well-founded fear of being persecuted for a Convention reason if they returned to India.

This application

1. The applicant sought review of the Tribunal decision.  He relies on a further amended application filed on 26 November 2004.  That application contains two grounds of review with extensive particulars.  The grounds are that the Tribunal exceeded jurisdiction and erred in law and constructively failed to exercise jurisdiction.  The particulars in the further amended application commence by reciting the background to the review application and asserting that the decision was infected with error.  The grounds relied upon commence at paragraph (iv) and are as follows:

   (iv)   The Tribunal failed to make findings about material claims, and failed to take into consideration relevant material, being firstly the claim that the primary applicant was a witness to actions by Punjabi police that amounted to torture, and secondly the claimed fact that the primary applicant was a witness to an illegal cremation.  The Tribunal thereby failed to determine the actual claims of the applicant and failed to complete the exercise of its jurisdiction to conduct a review pursuant to s414 of the Act.

   (v)    The Tribunal failed to correctly interpret the law and/or failed to correctly apply the law to the facts, as the Tribunal failed to ask itself whether, despite possible limitations on the primary applicant’s ability to testify and give evidence which would be admissible or probative in one or more prosecutions of police engaged in politically motivated murder or torture, he nevertheless would as a result of a perceived ability to give such evidence face a real chance of persecution should he be returned to India.

   (vi)   The Tribunal failed to correctly interpret the law with regard to the requirement for a Convention nexus to persecutory actions as the Tribunal incorrectly found that actions of the primary applicant could not be regarded as manifesting a political or an imputed political opinion.  Further this constituted a constructive failure of jurisdiction as its reasoning rejecting the possibility of this convention ground was illogical. 

   (vii)    The Tribunal made an error of fact finding being so grievous as to take the Tribunal outside the scope of its jurisdiction, as the Tribunal assumed that the primary applicant revealed photographs of only one incriminating incident when the evidence was and the primary applicant did actually reveal photographs of many more incidents.  The Tribunal thereby failed to determine the actual claims of the applicant and failed to complete the exercise of its jurisdiction to conduct a review pursuant to s414 of the Act.

   (viii) The Tribunal on the one hand (at page 28) gave weight to the fact that a witness had (when first seeing it and before signing it) made an amendment to a draft statement “in order to distance himself from the claims in it” whereas the correct and only inference to be drawn was that the witness did so in order to correct the draft statement so that it was true; yet the Tribunal on the other hand refused to give any weight at all to the statement in its corrected and signed form.  In this regard:

   (A)the statement constituted evidence;

   (B)it was required to be weighed;

   (C)the only claims in it could be and were those in the corrected form;

   (D)the Tribunal was not entitled to disregard those claims merely because the witness had amended the draft to create them; and

   (E)by disregarding and refusing to consider the claims the Tribunal failed to exercise jurisdiction.

   (ix)   The Tribunal failed to correctly interpret the law with regard to the membership of a particular social group in finding that if the applicant feared persecution it was for acts that he had done rather than on account of what he was, and consequently the applicant could not be considered a member of a particular social group.

   (x)    The Tribunal failed to fully consider the issue before it in relation to the applicant’s membership of a particular social group, and as a result, the Tribunal failed to make a finding about whether the claimed social group existed and if so whether the applicant was a member of it.

2. The applicant contended that as the purported decision of the Tribunal was infected with error, the Tribunal did not have jurisdiction to make such a decision. 

3. Counsel for the respondent contended that not only was the decision not infected with error but also that the Tribunal had dealt with the claims before it on a number of alternative bases, each of which was a sufficient basis for the ultimate decision so that it was for the applicant to impugn each of the alternative findings in order to succeed.  It was contended that this had not been done.  Prior to considering whether any of the grounds relied on by the applicant have been established it is relevant to have regard to the widest of the respondent’s contentions. 

4. The respondent contended that the applicant’s claim must fail because a sufficient basis for the Tribunal decision, which was not impugned by the applicant, was its finding that there was a lack of subjective fear on the part of the applicants when they left India.  Relevantly, the Tribunal found that if the applicant had been in fear of the police or the army from December 1994 onwards he would have taken steps to leave India much earlier than he did and that the fact that he and his wife had obtained visas to travel to Thailand but did not use them (preferring to wait in India until they were issued with visas to Australia) suggested that they did not in fact fear being persecuted while they remained in India.  The applicants acknowledged that they were influenced by their family members to remain in India until they could join their son in Australia.  According to the Tribunal this reinforced the impression that the applicant did not fear being persecuted in India and that he considered that he and his wife could remain there safely until such time as they were able to join their son in Australia.  The Tribunal then concluded that having regard to their decision to remain in India until they were granted Australian visas it did not accept that the applicant and his wife genuinely held a subjective fear of being persecuted at the time they left India. 

5. While conceding that the time for consideration of whether an applicant has a fear is the time of the decision, the respondent contended that the Tribunal findings about the lack of a subjective fear at the time of leaving India must be viewed in light of the actual claims made by the applicant. He claimed involvement in police activity in the Punjab in the 1980s and 1990s and that when he stopped that involvement and gave photographs to a human rights activist he was pursued by the police and feared that he would be harmed by them so he left India for Australia to seek protection. In light of these claims it was suggested that the strong and unequivocal finding of an absence of a genuine subjective fear on the part of the applicant at the time of leaving India was probative of the lack of such a fear at the time of decision and that it supported the Tribunal’s conclusion that it did not accept that the applicant ‘fears being persecuted for a Convention reason’ and that it was not satisfied that the applicant or his wife “has a well-founded fear of being persecuted for a Convention reason if they return to India”. This submission is consistent with the Tribunal’s finding that the applicants’ distress when giving evidence at the Tribunal hearing reflected “the strength of their desire to remain in Australia rather than any fear of being persecuted if they return to India”. However the Tribunal did not make an express finding as to whether the applicant held a subjective fear of being persecuted at the time of the decision. Rather it addressed the objective element of well-founded fear and the issue of a Convention nexus. It also dealt with the application of the applicant’s wife on the basis of an absence of any Convention ground for the applicant’s fear and applied s.91S in relation to any claim that she feared persecution for reasons of membership of her husband’s family.

6. Reading the Tribunal decision as a whole and having regard to the time that had elapsed and the evidence before the Tribunal as to developments in India after the applicant left the country this is not a case in which it is implicit in the Tribunal reasons for decision that it made a finding that the applicant did not have a well-founded fear at the time of the decision.  Hence it is necessary to consider the grounds raised by the applicant.  In passing I note that it was also contended that various other bases for the Tribunal’s decision were not impugned, including the findings in relation to the applicant’s claimed fear of the central government but as this was only one aspect of the claimed fear the absence of error in this part of the decision is not determinative. 

Torture and illegal cremation claims (paragraph iv)

1. It was contended that the Tribunal had failed to make findings about the applicant’s material claims that he witnessed torture by Punjabi police and an illegal cremation, and that in so doing the Tribunal failed to take into consideration relevant material and fell into legal error. 

2. It was submitted that the Tribunal summary of the applicant’s claims was inaccurate and did not cover the whole basis for the fear claimed by the applicant.  The Tribunal did not accept that the applicant was still being sought by rogue elements of the police or the army acting in an unofficial capacity as it found that his capacity to give evidence against any of these officers would be extremely limited.  It stated “He only claims to have been an eye witness to people being killed on two occasions and on one of those occasions he was 100 metres away hiding in a jeep while on the other occasion he did not actually see the shots being fired”.  However (as the Tribunal recognised in considering the separate claim that the applicant could assist thousands of families to seek justice for atrocities carried out by the Punjabi police and the Indian army), he also claimed to have seen the police torture people and to have witnessed an illegal cremation and this was said to be part of the basis for his fear in relation to rogue elements of the police because he could give evidence against them.  The applicant also claimed to have taken photographs of dead bodies in such a way as to conceal the involvement of the police in the deaths.  He provided some photographs of dead bodies to the Tribunal.  The Tribunal noted the fact that there was an ongoing Central Bureau of Investigation inquiry into illegal cremations. 

3. It was contended that the Tribunal failed to make findings about the full extent of the material and knowledge the applicant claimed to be in possession of and that this failure was jurisdictional on the basis considered in NABE v MIMIA (No 2) [2004] FCAFC 263 at [63] as follows:

   It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute a jurisdictional error.

4. It was submitted that the Tribunal failed to determine the actual claims of the applicant and failed to complete the exercise of its jurisdiction to conduct a review pursuant to s.414 of the Migration Act 1958.  The applicant’s claims in relation to what evidence he could give against rogue elements of the police and army were said to relate to more than just evidence about murders and to extend to evidence about cremations and witnessing torture.  It was contended that the issue of torture and illegal cremations in the Punjab remained a live issue, as was apparent from the ongoing inquiry noted by the Tribunal and from independent material before the Tribunal which had been provided by the applicant.  The decision of the delegate had referred to the 1998 formation of a commission to investigate mass cremations.  This information had been updated in more recent country information provided to the Tribunal by the applicant relating to the conduct of the police during and after the insurgency and the alleged torture activities conducted by the police.  Particular reference was made to an Amnesty International Report of 2003 provided to the Tribunal by the applicant’s representative.  In light of such information it was said that the Tribunal had erred in failing to determine and consider the actual claims by the applicant about the basis for his fear of persecution because of evidence he could give about police activities.

5. The respondent pointed out that this argument related only to one aspect of the applicant’s claimed fears, that being the claim to fear the police either in their official capacity or rogue elements of the police acting in an unofficial capacity and contended that it was important to distinguish the claim and the evidence put forward to support it (see Allsop J in Htun v MIMIA (2001) 194 ALR 244). It was submitted that the Tribunal had not failed to take into account relevant considerations in the sense of the integers of the applicant’s claim in this respect.

6. In Htun Allsop J stated (at [42]) that the requirement to review the decision under section 414 of the Migration Act 1958 requires the Tribunal to consider the claims of the applicant and that:

   To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on.  The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; and Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1.  It is to be distinguished from errant fact finding.

7. In this case the claim in issue was based on one foundation in one sense – that is that because of what he had witnessed the applicant could give evidence against the police involved.  However the elements of this claim were not only that he had been an eye witness to two shooting incidents but also that he had been a witness to an illegal cremation and torture.  He made these claims in his statutory declaration sworn on 16 January 2004.  He claimed that police from the local police station required him to take photographs of bodies to make it look like an encounter.  He gave a description of witnessing a killing (although the Tribunal preferred the account given by him in the hearing).  He continued:

   At various police stations I have been placed in the situation where I was required to observe police torturing people.  I have seen police officers hold someone face down on the ground whilst other officers rolling a heavy log across their back or the backs of their legs, whilst maintaining pressure on the log.  The aim is to break the legs or back of the victim.  One police officer is named [name of police officer provided]  I have observed him performing this form of torture approximately 20 times. 

8. The applicant went on to claim that he had observed other specified forms of torture used by the police at various police stations (such as urinating in people’s mouths, electrocuting them by attaching wires to their testicles, making them lie on slabs of ice, tying them up and whipping them until they confessed or lost consciousness).  He also claimed to have witnessed an illegal cremation one Sunday evening in 1994 when he was required to photograph five bodies, details of which were put in the register but observed that there were an additional six to eight bodies which were not photographed or placed in the register but which were placed in the pyres with the bodies which had been registered.  The applicant stated that he did not know how any of those people had died.  He then named 11 police officers about whom he considered he could give information which may assist in a prosecution with regard to illegal police activity.  He named five police stations which he had observed illegal police activity.  He claimed first-hand knowledge of many instances of illegal police activity in the Punjab and claimed to fear targeting by the named past and present officers whose security may be jeopardised by his ability to give evidence against them.

9. There is no transcript of the Tribunal hearing before the court.  While the Tribunal preferred the applicant’s evidence at the hearing on specified matters (for example as to whether the army used his services during Operation Bluestar in 1984 and his account of killings he witnessed) it does not address expressly whether it accepted his claims about witnessing police torture and an illegal cremation.

10. Further, despite reciting the applicant’s claims to have witnessed torture and an illegal cremation in its overview of the applicant’s claims, in the findings and reasons part of the decision the Tribunal did not address his claim to fear rogue elements of the police or army acting in an unofficial capacity because he had witnessed torture and an illegal cremation and could give evidence to that effect.  In this part of the decision the Tribunal referred only to the clarification of the applicant’s claims to have been an eye witness to killings on two occasions in finding that it was apparent from what the applicant had said at the hearing that his capacity to give evidence against any of these officers would be extremely limited.  In light of this finding I am not persuaded that the Tribunal did take into account the claims about witnessing torture and an illegal cremation in addressing the claimed fear based on the applicant’s ability to give evidence against rogue officers.  It is notable that, contrary to the respondent’s contention that the Tribunal accepted that the applicant had witnessed torture and illegal cremations, in this part of the decision the Tribunal indicated that it did not accept that the applicant was able to give evidence in relation to atrocities committed by police or army officers or that he could be so perceived.  It gave a reason for this conclusion in relation to the two killings (being the scope of the activities actually witnessed) but did not address the detailed claims about witnessing police torture and an illegal cremation in this context. 

11. It is the case that in considering the separate, and somewhat sweeping, claim that the applicant could assist thousands of families to seek justice for atrocities carried out by the police or army in Punjab (a claim made by the person to whom Mr Khalra handed photographs received from the applicant), the Tribunal referred to the applicant’s claims to have seen the police torture people and to have witnessed an illegal cremation as well as to have taken photographs of dead bodies in such a way as to conceal the involvement of the police in the deaths.  However it did not indicate whether it accepted these claims.  Rather it found that the applicant’s memory was failing, that he was easily confused, that it was over nine years since he had last had any involvement with the police or the army in the Punjab and that the only ‘incriminating’ evidence that he had produced to the Tribunal was some 11 photographs apparently of six separate dead bodies, in addition to his evidence that he handed photographs to Mr Khalra which Mr Khalra handed to the person who made the claim about assisting thousands of families.  Even though the claims in issue were addressed in this context this does not mean that they were taken into account by the Tribunal in addressing the claim to fear rogue officers because of evidence he could give against them. 

1. I am satisfied that it has been established that the Tribunal either overlooked or misunderstood the claims advanced by the applicant in relation to his ability to give evidence against rogue elements of the police or the army acting in an unofficial capacity.  Moreover it based its conclusion in part upon the claim so misunderstood or misconstrued, in finding that it did not accept that the applicant was still being sought by rogue elements of the police or the army because he could give evidence against them (see NABE v MIMIA (No. 2) [2004] FCAFC 263 at [63]). In NABE it was suggested that such an error was tantamount to a failure to consider the claim and on that basis could constitute jurisdictional error.  It cannot be said that the evidence before the Tribunal of the applicant’s claim in relation to witnessing torture and an illegal cremation was irrelevant to the question of whether the applicant had a well-founded fear of persecution for one of the Convention reasons.  The reason the Tribunal gave for rejecting the applicant’s claims to fear rogue elements because he could give evidence was the extremely limited nature of the evidence that he could give.  However the evidence was only found to be extremely limited because the Tribunal only took into consideration the observations which the applicant could have made on the two occasions on which he said he witnessed killings.  No consideration was given by the Tribunal to the consequences of the applicant’s claims of having witnessed torture by named police at designated police stations and an illegal cremation.  I have considered whether this is a case in which the Tribunal merely failed to advert to evidence which, if accepted, might have led it to make a different finding of fact or whether there was a failure by the Tribunal to address a contention which, if accepted, might have established that the applicant had a well-founded fear of persecution (see Applicant WAEE v MIMIA [2003] FCAFC 184 at [46]). The findings about the evidence that the applicant could give against rogue officers were not findings of greater generality. This is not a case in which there was a factual premise upon which a contention rested which had been rejected. The failure by the Tribunal to consider the evidence about the applicant’s claims to have witnessed torture and an illegal cremation and the repercussions flowing from it in relation to his claim to fear rogue elements because of his ability to give evidence against such officers amounted to a failure to consider an issue going directly to the question of whether the criterion under s.36 of the Migration Act (that the applicant is a non-citizen in Australia to whom the Tribunal is satisfied that Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol) was satisfied. 

2. However the Tribunal provided an alternative independent basis for its conclusion that the applicant was not a person to whom Australia had protection obligations.  It found that there was no Convention nexus.  Importantly it considered this issue on the basis that it accepted that the applicant was able to give evidence in relation to ‘atrocities’ committed by police or army officers in Punjab or that he was so perceived, and in discussing this issue referred to the claims made by the applicant about being able to give evidence in relation to atrocities committed by the police and to his fear of being targeted by police who participated in illegal cremations and extrajudicial killings against whom he could testify.  It did not overlook this aspect of the applicant’s claims in considering the Convention nexus.  In other words, although the Tribunal fell into an error as contended in paragraphs (iv) of the further amended application, that would constitute jurisdictional error warranting the orders sought by the applicant, if no jurisdictional error is apparent in the Tribunal consideration of the Convention ground issue, the error in addressing the anterior issue of whether the applicant had a well-founded fear because he was still being sought by rogue officers because he could give evidence against them would not be determinative.  This issue is discussed below. 

The perceived ability to give evidence issue (paragraph v)

1. It was contended that the Tribunal failed to correctly interpret the law and/or failed to correctly apply the law to the facts in failing to ask itself whether, despite possible limitations on the applicant’s ability to testify and give evidence which would be admissible or probative in one or more prosecutions of police engaged in politically motivated murder or torture, he nevertheless would, as the result of a perceived ability to give such evidence, face a real chance of persecution should he return to India. 

2. It was contended that although the Tribunal found that the precise evidence the applicant could give about the murders was limited, he was known to have been present at two murders.  Hence there would be uncertainty as to how damaging his testimony would be and there would remain a perception that he could give valuable evidence.  The Tribunal had taken the view that the police officers, by their training, would appreciate the nature of the evidence that the applicant could give and hence would have no misconception about its potential value.  However it was contended that while such reasoning might be appropriate if the applicant had made a statement, so that the police could see the nature of the evidence he proposed to give, in the absence of such a statement there was no proper or secure basis upon which the Tribunal could assume that the police could not have such a perception.  In such a situation it was submitted that the Tribunal had improperly precluded itself from considering the whole of the claimed basis for the applicant’s fears and failed to properly consider the real chance test because it improperly precluded itself from a full consideration of what the police perceptions of the evidence he could give might be. 

3. I am not persuaded that there was a lack of a proper basis for the Tribunal findings or that it erred in it making such findings in the absence of a statement by the applicant.  It is critical that, on the applicant’s own evidence, the police themselves would have witnessed the fact and the extent of the applicant’s presence on the occasions on which he claimed to have been present.  In such circumstances there was no need for a statement from the applicant to inform the police of the evidence the applicant could give or the value of such evidence.  The Tribunal finding was open to it on the material before it for the reasons it gave.  There was no lack of logic in its approach.  In essence this contention is a disagreement with the merits of the Tribunal decision.  In any event, error in the logic of fact finding does not give rise to a reviewable error: VWST v MIMIA [2004] FCAFC 286 following NACB v MIMIA [2003] FCAFC 235.

Political opinion issue (paragraph vi)

1. It was contended that the Tribunal failed to interpret the law correctly in relation to the requirement of a Convention nexus for persecutory actions as it found, incorrectly, that the actions of the applicant could not be regarded as manifesting a political or an imputed political opinion.  It was submitted that this constituted a constructive failure to exercise jurisdiction as the Tribunal reasoning rejecting the possibility of this Convention ground was illogical. 

2. It was submitted for the applicant that his actions of ceasing to co-operate with the police and of providing photographs of a body to a human rights activist were politically significant when viewed in the context of the oppression of the Sikhs in the Punjab.  There was evidence that the applicant had been co-operating with the police.  He ceased that co-operation and provided information to those opposed to the policy of oppression of the Sikhs.  On this basis it was said that there was clearly a possibility that these actions would be perceived as politically motivated and that the Tribunal had rejected such a claim for an illogical reason and had thus failed to perform its statutory duty (MIMIAv SGLB (2004) 207 ALR 12 at [38]). The applicant contended that the Tribunal’s findings in this respect were wrong as a matter of law and also as a matter of logic. As a matter of law reliance was placed on the decision of Davies J in MIMA v Y [1998] FCA 515 as support for the proposition that where a person who had observed police misconduct informed on the police and was harassed by the police (in a situation where police corruption was endemic and tolerated by the state) such conduct could be viewed as political and his fear of persecution could be on the basis of an imputed political opinion. It was contended that the Tribunal conclusion in this case that the applicant had not engaged in a course of conduct which could be regarded as manifesting a political opinion was at odds with the finding of Davies J in the Y case that it could be so regarded as a matter of law.  Moreover there was said to be a failure of logic, given the material about what was happening in the Punjab at the time.  It was contended that a person who could potentially give evidence against the police could, as a matter of logic, be seen as a threat to their authority.  As long as the police force was sufficiently identifiable with the State then logically one could draw a conclusion that there was a possibility of an imputed political opinion.  It was also contended that while VWST v MIMA [2004] FCAFC 286 had held that an error in the logic of fact-finding did not give rise to a reviewable error, in that case there was in fact no lack of logic found so what the Full Court said was strictly obiter. It was also said to be relevant that while VWST followed the earlier Full Court decision of NACB v MIMA [2003] FCAFC 235, in between those two cases were the High Court decisions in Re MIMA; Ex parte Applicant S20/2002; A [2003] HCA 30 and MIMAv SGLB (2004) 27 ALR 12. It was suggested that the High Court, in SGLB had in fact upheld the proposition rejected in VWST by the Full Court, albeit as an obiter observation by Gummow and Hayne JJ with whom Gleeson CJ agreed. Their Honours had stated at [38] that:

   “The critical question is whether the determination was irrational or illogical and not based on findings or inferences of fact supported by logical grounds”.

3. The Tribunal found that the applicant had not engaged in a course of conduct which could be regarded as manifesting a political opinion.  He had not made public accusations.  He had only refused to continue to photograph dead bodies and had handed over photographs of the dead body of his friend’s son to Mr Khalra.  There was found to be nothing in the evidence to support the suggestion that the police officers who raided his home or those whom he feared would kill him if he returned were motivated by a perception they may hold of his political opinion.  His own evidence was that they wished to eliminate him because of his capacity to testify against them.  On this basis the Tribunal did not accept that the essential and significant reason for the persecution which the applicant feared was his real or imputed political opinion. 

4. It was the applicant’s evidence and the absence of a course of conduct manifesting a political opinion or anything to suggest that the police or army officers were motivated in any way by a perception of the applicant’s political opinion that the Tribunal had regard to in making its findings about political opinion.  The Tribunal considered but rejected the possibility that the applicant’s conduct would be perceived as politically motivated, consistent with what was suggested by Davies J in Y.  Its finding dealt effectively with this aspect of the reasons for the harm feared. 

5. Further, in addition to rejecting the proposition that there was any political opinion to be imputed to the applicant, the Tribunal also reached its decision on this issue on the separate basis that any real or imputed political opinion of the applicant was not the essential and significant reason for persecution under s.91R(1)(a) of the Migration Act 1958. It plainly understood that if the applicant was to be seen as holding a real or imputed political opinion it had to consider whether the feared harm would be inflicted by reason of such political opinion. (See MIMIA v VFAY [2003] FCAFC 191 at [57] – [61]). The finding about essential and significant reason is not challenged. I am not persuaded that the Tribunal’s determination was irrational or illogical but, in any event, consider myself bound by the reasoning in VWST and the view of the Full Court of the Federal Court at [18] that: “The current state of the law is that want of logic in the reasons of the RRT is not an available ground of review”. No error is established on this basis.

The photographs issue (paragraph vii)

1. It was contended that the Tribunal made an error of fact-finding ‘so grievous’ as to take the Tribunal outside the scope of its jurisdiction as it assumed that the applicant revealed photographs of only one incriminating incident when the evidence was that he actually revealed photographs of many more incidents.  Counsel for the applicant contended that the applicant’s claim was not limited to a claim that he handed over the photographs of the dead body of his friend’s son.  He claimed in written submissions to the Tribunal to have handed all his photographs over to Mr Khalra.  It was submitted that it was apparent from the documents before the court that claims were made at different times that more photographs were given to Mr Khalra than just the photographs of the dead body of the friend’s son.  It was contended that the Tribunal then had to determine, based on this and all the evidence in relation to what had occurred, whether the extent of what the applicant did was confined to the photographs of the dead body of his son’s friend.  The applicant contended that in making this error of fact finding the Tribunal failed to determine the actual claims of the applicant and failed to complete the exercise of its jurisdiction. 

2. The Tribunal reasons for decision record that in the Tribunal hearing the claim made by the applicant was that he handed over photographs of the body of his friend’s son.  In the findings and reasons part of the decision the Tribunal had regard to the fact that the applicant’s evidence as to what he actually did had varied over the course of the processing of the application.  In light of this, its finding that the applicant worked as a photographer and handed the photographs of the dead body of the son of his friend to Mr Khalra in late 1994, amounts to a positive finding as to the extent of the photographs that were revealed to Mr Khalra by the applicant.  No error is apparent in the Tribunal referring, as it did later in the findings and reasons part of its decision, to the applicant’s only actions being his refusal to continue to photograph dead bodies and his handing of the photographs of the dead body of his friend’s son to Mr Khalra.

3. Moreover, even if the Tribunal had accepted or had failed to consider the evidence that more photographs were handed over, this would be a factual error made in the course of making the decision and not an error that went to the jurisdiction of the Tribunal (see McHugh J in Re, MIMA; Ex parte Cohen (2002) 75 ALJR 542 at [36] – [37]). The claim would not have amounted to a different claim in the sense considered by the High Court in Dranichnikov v MIMA [2003] HCA 26. The number of photographs handed over (and it was not clear how many were ever claimed to have been revealed) would not have changed the essential nature of the claim made, because the photographs were, on any view of the claims, evidentiary claims of the same nature, relating to the corruption of the police and killings or illegal activities undertaken by the police in the Punjab in the circumstances of the insurgency of the Sikh separatist movement. Hence even if the Tribunal did not expressly consider the claims made by the applicant in relation to revealing photographs of many incidents, nonetheless this does not give rise to a jurisdictional error because the Tribunal considered the overall claim which arose from that evidence. It has not been shown that it so misunderstood the question it had to decide in this respect such that any error constituted jurisdictional error.

The statutory declaration issue (paragraph viii)

1. Ground (viii) relates to the statement of a supporting witness, Mr Lal.  The Tribunal refused to give weight to this statement as it found that the statement was initially drafted by the applicant’s lawyers on the applicant’s instructions.  It gave weight to the fact that the witness had altered the statement to distance himself from the claims made in it by asserting that they were the observations of another person.  It was contended that the correct and only inference to be drawn was that the witness had altered the statement to correct the draft statement so that it was true and that the Tribunal’s basis for not giving the statement any weight was illogical and that the Tribunal had precluded itself from having regard to probative evidence without a proper basis for so doing. 

2. Despite the fact that this ground was included in the further amended application filed on 26 November 2004, in oral submissions counsel for the applicant conceded that while it was submitted the Tribunal reasoning in this respect was contradictory and illogical, he did not press this ground, as the reasoning was a logical error within jurisdiction being an error of logic that did not go directly to whether a Convention ground was made out.  It was suggested, however, that this illustrated the distinction between such a logical error in reasoning within jurisdiction and the reasoning rejecting the imputed political opinion (ground vi) which was said to be a logical error going directly to a Convention ground and creating a jurisdictional error. 

Particular social group (paragraphs ix and x)

1. It was contended that the Tribunal failed to interpret the law correctly with regard to membership of a particular social group in finding that, if the applicant feared persecution, it was for acts that he had done rather than on account of what he was and that hence he could not be considered a member of a particular social group.  Associated with this claim is the next ground, being the claim that the Tribunal failed to fully consider the issue before it in relation to the applicant’s membership of a particular social group and as a result failed to make a finding about whether the claimed social group existed and if so whether the applicant was a member of it.

2. It was contended that the determination of whether a group to which the applicant claims to belong is a particular social group is a question of law and that as Gummow and Callinan JJ stated at [26] in Dranichnikovv MIMIA (2003) 197 ALR 389:

   At the outset it should be pointed out that the task of the Tribunal involves a number of steps.  First the Tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention.  That determination in part at least involves a question of law.  If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class.  There then follows the question of whether the applicant has a fear, whether the fear is well founded, and if it is, whether it is for a Convention reason.

3. In Dranichnikov the Tribunal had decided the applicant’s case on the basis that he claimed to be a member of a social group constituted by ‘businessmen in Russia’.  The High Court found there was a jurisdictional error in the Tribunal’s failure to consider whether the applicant was a member of a social group consisting of entrepreneurs and businessmen who publicly criticised law enforcement authorities for failing to take action against crime or criminals.  The applicant contended that such a social group was defined both by what its members are: ‘entrepreneurs and businessmen’, and also by what they had done: ‘criticise law enforcement authorities etcetera’.  It was submitted that using the actions of people as the basis for their being identified as a group in society is a possible way of defining a social group and that this was recognised by Black CJ in Morato v MIEA (1992) 39 FCR 401 at 405.

1. In the present case the applicant claimed that he was a member of a social group identified as ‘persons who can testify against corrupt practices in the police force’.  However the applicant contended that the Tribunal declined to consider whether such a social group existed, as it found that the issue of witnesses as members of social groups had been authoritatively determined in Morato. The Tribunal stated that in Morato the appellant had feared persecution because of acts which he had done rather than his membership of any particular social group.  Similarly, the Tribunal held that in this case it was the applicant’s capacity or perceived capacity as an individual to give evidence which would motivate police officers to attempt to prevent him from giving evidence, not his membership of any particular social group for the purposes of the Refugees Convention. 

2. It was contended for the applicant that the distinction between what a person is and what a person does is not conclusive on this question, as in some cases what people do may form them into a cognisable social group.  It was also contended that the Tribunal was not absolved from having to determine whether the particular social group existed by finding that the motivation for anyone wishing to harm the applicant would be to prevent him giving evidence and not because he belonged to any social group and that similar reasoning had been rejected by the Full Court of the Federal Court in NAPU v MIMIA [2004] FCAFC 193. In that case the Tribunal had found that a journalist who had written critical articles feared persecution from those he wrote about because of what he wrote and not because he belonged to any particular social group. The Full Court of the Federal Court found that there was a jurisdictional error in the failure of the Tribunal to consider whether there was a social group of outspoken journalists in Bangladesh. At [38] Moore J stated:

   The Tribunal expressed a conclusion that the appellant had been threatened because the people he had written about wanted to silence him or seek revenge for the statement he had made and not because, inter alia, of his membership of a particular social group.  On a narrow view of the case raised by the material provided by the appellant, this provided a sufficient answer to the claims made by the appellant.  That is because the appellant, in identifying at various points during the consideration of his application (including its consideration by the Tribunal) the harm he would suffer were he to return to Bangladesh focused on the harm he would suffer at the hands of those he had written critical articles about immediately before leaving Bangladesh.  However the various descriptions by the appellant of himself as an outspoken journalist and the material he had furnished about the fate of journalists in Bangladesh, fairly raise a broader case than the case dealt with by the Tribunal.  There was no consideration of whether such a group existed, for Convention purposes, whether the appellant was a member of it, and, if so, whether he had a well-founded fear of persecution because of that membership.  It was not sufficient for the Tribunal to deal with the question of membership of a particular social group in the summary way just outlined.

3. The applicant contended that the latter part of that quote was on all fours with the situation in this case.  The applicant had focused on the harm he might suffer from the people against whom he might give evidence, but there was also said to be a need for the Tribunal to consider the material provided by the applicant about what was actually happening in the Punjab.  Particular reference was made to the information in the Amnesty International Report of January 2003 provided to the Tribunal by the applicant which indicated that the current government was trying to provide some support to police officers who committed atrocities in the insurgency period and which, it was said, described intimidation and abuse of witnesses in actions against police.  This Report also discussed ongoing investigation into illegal cremations, which Counsel for the applicant suggested meant that any evidence the applicant might be able to give in relation to such matters was not likely to be past its relevance.  Moreover the Report noted that there were repeated calls for amnesty to be given to those who had been accused of human rights abuses in the relevant period.  Amnesty International believed that torture and ill-treatment in police custody continued because the police officers were not promptly prosecuted for violations committed during the military period and therefore did not expect now to be questioned about their recourse to custodial violence.  Finally the Report noted that human rights defenders were under surveillance and subject to threats and violent attacks in an attempt by the police to intimidate them. 

4. It was submitted that, given such material, the determination of whether there was a social group of ‘persons who can testify against corrupt practices in the police force’ and whether the applicant was a member of it were necessary requirements for the Tribunal to complete the exercise of its jurisdiction.  It was also suggested in oral submissions that the applicant could be identified with the group of human rights activists, of which Mr Khalra was one, because of his relationship to him, albeit that this was not the specific way that the applicant’s advisers had put the social group to the Tribunal.  It was said that there was plenty of material about persecution of that type of person before the Tribunal which would support an inference that a social group could be defined in that way. 

5. The respondent contended that, contrary to the submissions of the applicant, the Tribunal had not understood the term ‘particular social group’ to exclude reference to persons who were identifiable by a characteristic or attribute common to all members of the group being something which those persons have done rather than what they are.  Rather, it made a finding that the reason for the harm feared was for what the applicant did himself.  As Moore J, with whom Branson J agreed, had held in NAPU at [38], such a finding could answer an applicant’s claims. It was submitted that this was not a case in which broader claims were put (as were considered in NAPU) and that the Tribunal had proceeded on the assumption that there could be a particular social group as claimed by the applicant, but concluded that it was not any membership of that group that was the reason for the harm feared.  It was contended that while there were other people who had done the same thing as the applicant and other people who had been harassed because of this, that did not mean there was a particular social group.  It was suggested by the respondent that the Tribunal found that whatever the social group and whether or not the applicant was a member of that social group, the essential and significant reason for the harm feared was not for reason of membership of that group. 

6. Moreover, even if the Tribunal did not consider whether the applicant was a member of a social group and was wrong to do so, it was argued that such error did not affect the decision; first because the Tribunal had found the applicant had no subjective fear of persecution and secondly because it found that there was no interest in the applicant for reason of his perceived ability to give evidence about the atrocities.  The first of these findings was said to be determinative of the review, as without a fear a person cannot be a refugee.  However as indicated above, the Tribunal did not make a finding about the applicant’s subjective fear at the time of the decision.  The second finding was said to mean that any fear (for whatever reason) was not well-founded.  However this finding was infected by jurisdictional error. 

7. It is necessary to consider first whether the Tribunal addressed the case raised by the material advanced by or on behalf of the applicant.  (MIMA v S152/2003 (2004) 205 ALR 487 and NAPU at [34]). The applicant initially claimed to fear the police, army and central government because of what he had witnessed, because he handed photographs of bodies to Mr Khalra and, subsequently, because of what he could reveal (including a claim about a video which was rejected by the Tribunal). He subsequently elaborated on what he claimed to have witnessed and police harassment and provided country information about the situation in the Punjab. Initially his claims were not presented on the basis of membership of a particular social group. However in written submissions to the Tribunal his legal representatives submitted that the applicant feared persecution as a result of his imputed political opinion and ‘his membership of one or more social groups being either person who can testify against corrupt practices in the police force or his family.’

8. This is not a case where the Tribunal failed to consider a broader particular social group raised on the material before it, such as ‘human rights activists’ as suggested in oral submissions by Counsel for the applicant (cf NAPU).  There is nothing in his claims or the material he relied on to suggest that it was necessary for the Tribunal to consider whether the applicant was a human rights activist if ‘human rights activists’ were capable of constituting a social group for the purposes of the Convention.  His claim to have given photographs to a human rights activist does not raise such a claim. 

9. However the applicant did, through his representatives, raise the two particular social groups mentioned.  It is not disputed that the Tribunal dealt with the applicant’s claim of persecution for reasons of membership of the particular social group constituted by his family.  The Tribunal accepted that the applicant’s family constituted a ‘particular social group’ for the purposes of the Convention but found that it was:

   “clear that, to the extent that the applicant’s fear that he will be targeted by police or army officers involved in atrocities has any foundation, their motivation relates to his capacity to give evidence against them rather than his membership of the particular social group constituted by his family.  I do not accept that the essential and significant reason for the persecution which the Applicant fears in his membership of the particular social group for the purposes of the Convention constituted by his family.”

10. It has not been suggested that there was any error in this aspect of the Tribunal decision. 

11. It is relevant to set out in full the Tribunal reasoning in relation to the claims about the particular social group of ‘persons who can testify against corrupt practices in the police force’.  The Tribunal stated:

    “As I indicated in the course of the hearing before me, I consider that the decision of the Full Court of the Federal Court in Morato v Minister for Immigration, Local Government & Ethnic Affairs (1992) 39 FCR 401, stands in the away of the argument that the Applicant fears being persecuted for reason of his membership of a ‘particular social group’ for the purposes of the Refugees Convention defined as ‘persons who can testify against corrupt practices in the police force.’ In Morato the appellant had given evidence that led to the conviction and imprisonment of a member of a family involved in the drug trade in Bolivia.  It was argued that he feared being persecuted as a member of a particular social group comprising persons who had turned Queen’s evidence.  The Full Court held that the appellant feared persecution because of acts which he had done rather than his membership of any particular social group:  see per Black CJ (with whom French J agreed) at 405 and per Lockhart J at 416 – 7.  So, in the present case, even if it were to be accepted that the applicant was able to give evidence in relation to atrocities committed by the police or army officers in Punjab, or that he could be perceived as being able to do so, it would be his capacity (or his perceived capacity) as an individual to do so which would motivate the officers in question to attempt to prevent him giving evidence, not his membership of any ‘particular social group’ for the purposes of the Convention. 

    Mr Slater sought to distinguish Morato on the basis that it concerned criminal activity whereas in the present case there was a political aspect because the applicant’s problems arose from the Sikh separatist movement.  However, I do not regard this distinction as tenable.  I return to the issue of imputed political opinion below but so far as the Convention group of membership of a ‘particular social group’ is concerned the distinction drawn in Morato between what a person is – a member of a particular social group – and what a person has done or does (or, as in the present case, may do) – see per Black CJ at 404 – is equally relevant whether one is talking of a person who has given evidence leading to the conviction of persons involved in drug trafficking or a person who may be able to give evidence in relation to atrocities committed by police or army officers in Punjab.  I do not accept that the essential and significant reason for the persecution which the Applicant fears is his membership of a particular social group constituted by ‘persons who can testify against corrupt practices in the police force’.”

12. Counsel for the respondent accepted that Morato was still good law.  As Black CJ pointed out in Morato at 404 – 405:

    Each element of the [Convention] definition must be considered.  A critical element in the present case is that the fear of persecution relied upon must be a fear for reasons of membership of a particular social group.  It is not enough to establish only that persecution is feared by reason of some act that a person has done, or is perceived to have done, and that others who have done an act of the same nature are also likely to be persecuted for that reason.  The primary focus of this part of the definition is upon an aspect of what a person is – a member of a particular social group – rather than upon what a person has done or does.  It may well be that an act or acts attributed to members of a group that is in truth a particular social group provide the reason for the persecution that members of such a group fear, but there must be a social group sufficiently cognisable as such as to enable it to be said that persecution is feared for reasons of membership of that group. 

    The need to show that persecution is for reasons of membership of a group, rather that for an act or acts done, tells against the argument that a particular social group may be defined by reference to the sole criterion that its members are all those who have done an act of a particular character.  I emphasise ‘sole’ because that is how the particular social group is sought to be defined in this case.  The doing of an act or acts of a particular character may, in some circumstances and together with other factors, point to the existence of a particular social group but in this case it is only the common action of turning Queen’s evidence that is said to define the group.” 

13. While Black CJ recognised (at 406) that the distinction between what a person is and what a person does is not necessarily conclusive, it is clear from the Tribunal reasons for decision that in this case (as in Morato) the Tribunal was of the view that the particular social group posited – in this instance ‘persons who can testify against corrupt practices in the police force’ was a group that was defined by reference to the sole criterion that its members were those who had done (or more accurately could do) an act of a particular character and that such a group did not constitute a particular social group for the purposes of the Convention.  The Tribunal also found that if the applicant’s claims to be able to give evidence were accepted, it would be his capacity or his perceived capacity as an individual to give such evidence which would motivate officers to prevent him from giving evidence, not his membership of any ‘particular social group’ for the purposes of the Convention.  In other words there was no particular social group found to exist in the manner contended by the applicant, but even if it did exist, it would not be membership of such a social group which would be the reason for any feared persecution.  (See Black CJ in Morato at 406).

14. The Tribunal findings about particular social group must, when read in light of the adoption of what was said in Morato, be seen as a finding that there was no particular social group as claimed because it was only sought to be defined by what somebody had done (or would do).  The Tribunal went on to make an alternative finding which effectively deals with any error.  Whatever the social group and whether or not the applicant is a member of that social group the essential and significant reason for the persecution feared was not his membership of any particular social group. 

15. In such circumstances it has not been shown that the Tribunal erred as contended.  It has not been established that the Tribunal misunderstood the term ‘particular social group’ or failed to correctly interpret the law or fully consider the issue.  This is not a case in which there is evidence of other factors (as well as the applicant’s capacity to testify) pointing to the existence of the claimed particular social group which should have been considered by the Tribunal.  The proposed group was not one in relation to which there was evidence of ongoing or present targeting or harassment, in contrast, for example, to the evidence the Amnesty International Report discussed in relation to human rights activists attempting to alert the international community to the human rights abuses taking place in Punjab and to pursue human rights cases in the courts.  The applicant made no such claims.  Apart from a reference to intimidation of witnesses in the trial for the murder of Mr Khalra the Amnesty International Report does not contain material about intimidation and abuse of witnesses in actions against police supportive of the claim about a particular social group of persons who can testify against corrupt practices in the police force.  Indeed the description of Government inaction in prosecution of police and those involved in human rights violations and the evidence about the fate of the inquiry into illegal cremations and of the impunity of police for their past actions is to the contrary.  Further while that Report referred to harassment of witnesses in Mr Khalra’s case, the Tribunal did not accept that the applicant was a person who might be required to give evidence in connection with Mr Khalra’s abduction or that he could be so perceived by police or army officers.  There was no evidence of factors other than the potential action of the applicant that had to be considered by the Tribunal in relation to whether there was a sufficiently cognisable social group so that it could be said the applicant feared persecution for reasons of membership of that group. 

16. Nor is this a case in which the suggested social group was defined both by what its members were as well as by their actions or capacity to act as was considered in Dranichnikov.  There was no material before the Tribunal to suggest that it was necessary for the Tribunal to consider whether over time, and in the particular circumstances, individuals who could testify against corrupt practices in the police force had become a cognisable social group by virtue of their common activity (as contemplated by Black CJ in Morato at 406.) The Tribunal did not simply treat the distinction between what a person is and what a person does as conclusive – rather it adopted the reasoning in Morato.  It did not err in so doing. 

17. Moreover, the Tribunal found that if the applicant was able to give evidence about atrocities or could be so perceived it would be his capacity as an individual to do so which would motivate the officers in question to attempt to prevent him from giving evidence not his membership of ‘any’ particular social group.  In other words it found that the reason for the harm feared was what he did (or could do) himself.  As Moore J (with whom Branson J agreed) pointed out at [38] in NAPU such a finding could answer an applicant’s claims.  It did so in the present case on the claims raised by the material provided by the applicant.  In contrast in NAPU the claims made were broader and it was for that reason that the appeal was allowed by a majority of the Full Court of the Federal Court.  In this instance, as in MIMA v VFAY [2003] FCAFC 191, the Tribunal considered that the particular social group did not exist but then made an alternative finding on the hypothetical basis that, contrary to its view, the asserted social group existed. This can be seen from the similar manner in which it went on to analyse the claims in relation to membership of the particular social group of the applicant’s family (which it accepted was a particular social group for the purposes of the Convention).

1. No jurisdictional error has been established in the Tribunal consideration of whether there was a Convention reason for the applicant’s claims to fear persecution because he was able to give evidence in relation to atrocities committed by police or army officers in Punjab.  As discussed above, this finding was made on the basis of accepting all of the applicant’s claims in relation to atrocities, including not only the clarified account of what he witnessed in relation to killings on two occasions but also his claims about torture and witnessing an illegal cremation.  It provides an alternative basis for the Tribunal conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason on this basis.  Hence, as discussed above, any error in the Tribunal’s anterior findings as to whether or not such claims gave rise to a well-founded fear of persecution could not be determinative, as the Tribunal found that there was no Convention ground for such claims in the widest sense.  Hence, his application must be dismissed. 

I certify that the preceding seventy-six (76) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate: 

Date:  7 April 2005.