Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 31 (20 January 2000)

Last Updated: 10 February 2000

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 31

MIGRATION - refugees - unrepresented applicant - application for review of decision of Refugee Review Tribunal - merits - application for review asserting error of law - merits review only sought - no error of law identified or apparent - application dismissed.

Migration Act 1958 (Cth)

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

ANGREJ SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

W 133 of 1999

FRENCH J

20 JANUARY 2000

PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG133 OF 1999

BETWEEN:	ANGREJ SINGH Applicant
AND:	DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	FRENCH J
DATE OF ORDER:	20 JANUARY 2000
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The Application is dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG133 OF 1999

BETWEEN:	ANGREJ SINGH Applicant
AND:	DEPARTMENT OF IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	FRENCH J
DATE:	20 JANUARY 2000
PLACE:	PERTH

EX TEMPORE REASONS FOR JUDGMENT

1 Angrej Singh is a citizen of India who came to Australia on 12 May 1999. He lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) on 4 June 1999. In his initial interview, asked "Why did you leave the country of nationality?", he said:

"In Sept 1998 at home I was taken to Batala Police Station they asked me why the terrorists came to me and where are they. Terrorist are from Sikh Students Federation, Commando Force, Babbaz Khala. The terrorists came to my house for food about 20 - 30 times for food to sleep. Sometime 1 or 2 came sometimes 12 - 13 somes 1 to 4. At my house live my parents, 5 other brothers and 2 sisters. I was in the house alone when the Police came about 1pm 2/9/98. At the Police Station they Q'tioned me and I explain they come for food. They ask why feed the terrorists and I said I had to because the terrorist use to beat me up. They also threatened to kill us."

"Q. Why terrorist beat you up not other family members.

A. They used to scare everyone.

Q. What happened after the Police Q'tioned you.

A. I explained that the terrorist forced us to feed them. The Police then started beating me up ask why I feeding the terrorist.

Q. Why did the Police not ask your parents why the house was feeding the terrorists.

A. They needed to ask a male. My father is very old.

Q Why not your older brother.

A. When the Police came I was in the house alone with 3 others my mother and sister.

Q. How do you say the Police beat you.

A. Took me to Batala. They beat me with battens everywhere, all over. They Q'tioned me again they let me go and I went home. I was at the Police Station for 3 days.

Q. Did your family come to the Police Station while you were held.

A. No.

Q. What happened after Sept 98.

A. In December the Police came again. I was with my mother at the tube well.

Q. Why you.

A. I was going somewhere and they were going the other way and they picked me up.

Q. Why did they not pick up your elder brothers or father.

A. They had picked me up previously so they did again. They did the same as what happened in September 98. I was there for five days. My father and neighbours came to the Police Station.

Q. Why not your father q'tioned.

A. They did but because he is old he said why not ask my children.

Q. So why weren't the other children asked.

A. They just ask me because I was on my own. When the Police came my brothers and sisters used to run away. I could not because they just picked me and took me away. After December on release I went 1 mth at my relatives, one month I stayed at Gurd, a Sikh temple, Mehta Sahib, Amritsar, then went to New Delhi before leaving for A/a.

Q. Are you of Sikh.

A. Yes I belong to Jaat Punjabi sect of Sikh.

12 WHY DID YOU COME TO AUSTRALIA?

A. To save my life. My agent said he could get me to A/a so I said ok. I told him he could send me anywhere I want to go anywhere.

Q. Do you know anything about A/a.

A. No" (sic)

Asked if he had any reasons for not wishing to return to his country of nationality, he said:

"If I go back they will kill me (Police) so you can kill me here. They would kill me because I ran away from there. The elder of the village if asked by the Police to produce a person he must, but he cant because I ran away.

Q. Why would Police come to the elder when they went to your house.

A. The elder (village Panchayat) would go to the Police Station arrange release of village people."

2 This was the initial interview with Mr Singh in relation to his application for refugee status. The application was considered be a delegate of the Minister who also received a submission from Messrs. Macpherson and Kelley, Solicitors, in which the substance of the account given in the initial interview was repeated. There was some additional material, in particular the assertion that the police response to assistance given to terrorists is severe.

3 Mr Singh asserted the police had been harassing him since September 1998; they had come to his house to make inquiries. He said in his statement about their questioning of him that sometimes they would hang him upside down to beat him with a baton. At other times he was tied down to a chair. He said his father was also taken to a police station for one day. He didn't have a large income and his father had to pay large bribes to secure his release from the police station. He could no longer live in fear of the police and terrorists so he decided to leave India. He was scared the police would kill him. Saying why he believed the authorities in his country would not protect him if he went back, he said they were responsible for his troubles. His statement was translated into English through the lawyers who were representing him.

4 On 5 August 1999, Mr Bogdanich, a delegate of the Minister for Immigration and Ethnic Affairs, decided that Mr Singh was not a person to whom Australia had protection obligations under the Refugees Convention and refused him the grant of a protection visa. Mr Singh applied for review of that decision by the Refugee Review Tribunal. That application was made on 11 August 1999. Again, a submission was lodged with the Tribunal by the lawyers acting on Mr Singh's behalf, Messrs. Macpherson and Kelley. This was a written submission which included extensive reference to country information.

5 The Tribunal gave its decision on 22 October 1999 and affirmed the decision not to grant a protection visa. It reviewed Mr Singh's claims in evidence which were set out in written submissions to the Department to which reference has already been made, in the interview with the officer of the Department, in written submissions to the Tribunal and in oral evidence which was given to the Tribunal on 4 October.

6 The Tribunal found Mr Singh is a national of India aged 25 years and is a Sikh from the Punjab. He had undertaken ten years schooling in India and worked as a farmer until his departure for Australia. He comes from a rural area where his family are farmers. His parents, five brothers and two sisters remain in the Punjab. Reviewing Mr Singh's claims and those submitted on his behalf by his advisors on 2 June, the Tribunal referred to answers that he had given to questions it asked in the oral hearing. He had been asked why the groups he referred to, Commando Force, Babbar Khalsa and Sikh Students Federation, had visited his home. He said they came to his home for food and shelter. They knew his family had vegetarian food. He was asked about the frequency of their visits and said there were many people who came on many occasions. His family could never refuse them because they had guns. When asked if he had ever reported these visits to the police, he said he never did so because the extremists might have killed the whole family. When asked how he identified the particular groups, he said:

"they used to tell us they were extremists, they had a full beard and hair, they told us they were working for such and such a group and sometimes they had letterhead from the groups."

Mr Singh was also asked why he and not his brothers or other local villagers who he thought had been visited had come to the adverse attention of the police. He responded that the police might have seen him take the extremists when they went to the toilet. Presumably this is a reference to an external toilet attached to his home.

Mr Singh was asked about his travel arrangements and how he passed through various security checks in leaving India. He said his father had paid 100,000 rupees to an agent who arranged everything. He also told the Tribunal his father and one brother have now been arrested by police because the police believe Mr Singh is working with extremists. The Tribunal then referred to independent country information from a variety of sources which I will not now traverse. It also looked at the possibility of relocation within India which, on the material available, was found to be a viable option for a Sikh reluctant to return to the Punjab.

The Tribunal did not accept Mr Singh to be a credible witness. His claims as to frequency and the circumstances of the alleged visits by extremists varied without explanation. In light of the vagueness of his claims and the inconsistencies in his recounting of the alleged terrorist visits and other matters, the Tribunal was not satisfied that the alleged extremist visits occurred. It also considered it improbable that the police would have apprehended only Mr Singh on two occasions and his father on one and not any other member of the family, given that all family members were allegedly involved in helping the extremists. It was also notable, the Tribunal found, that none of the other people in the village were apprehended despite his claim that they were also helping the extremists.

7 Mr Singh had given different explanations of the fact that he was the only sibling apprehended. In his initial interview he stated that when police came he was in the house with his mother and sisters, but they needed to ask for a male. When he was interviewed by the Department, he said he was the only family member apprehended because he was alone at home and in oral evidence to the Tribunal he said it was because the police saw him taking the extremists to the toilet. His account of his apprehension was found by the Tribunal to be inconsistent and implausible. He gave only vague and general information about the extremists. In his evidence to the Tribunal he stated that they came from three groups but he could only describe them in terms of having a full beard and hair and saying that they were from such and such a group and sometimes had a letterhead. The Tribunal was not satisfied that the alleged visits occurred, having regard to the inconsistencies of Mr Singh's account and his lack of knowledge of their circumstances.

8 The Tribunal found Mr Singh's evidence as to his departure from India to be improbable. He did not know if his passport had been issued in his name or another person's and he did not know the name of the ports he had travelled through on the way to Indonesia. He stated that he simply met a man in a temple in Delhi, told the man he had problems and entrusted him to help him for 100,000 rupees without asking if the passport was issued in his name or what ports he would be travelling through. The Tribunal did not accept that when he boarded a plane in Delhi he did not know what name he was travelling under or where he was travelling to. It said he was a capable young man, not overtly naive with ten years formal education. In addition, country information indicated that the situation in Punjab had settled in 1993 and that almost all reports stated that in recent years normalcy had returned to the State. There is no longer a real terrorist threat in Punjab and no sign of people contemplating a return to militancy or secessionist politics.

9 In view of the internal inconsistencies, the independent country information and the lack of detailed claims, the Tribunal was not satisfied that Mr Singh's claims were credible. In considered the possibility of relocation to another part of India if Mr Singh did not wish to return to his local village, the Tribunal referred to the dicta, especially of the Chief Justice, in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs(1994) 52 FCR 437 at 440-441 and noted that the principle of relocation only applies to people who can genuinely access domestic protection and for whom the reality of protection is meaningful.

10 The Tribunal found, based on country information and material prepared by Professor Robin Jeffrey, that large numbers of Sikhs reside throughout India. Mr Singh could practise his religion freely in other parts of India. There was no evidence of discrimination against Sikhs in employment generally. They were to be found in many areas of employment in the public and private sector throughout India. He had had ten years education. He was mature and had a family which had shown itself, in the past, to be capable of and willing to be supportive of him. The Tribunal held that if he did not choose to return to his local village he was capable of relocation and relocation was a reasonable option to him. For all of those reasons, the Tribunal concluded that Australia did not have protection obligations to Mr Singh under the Refugees Convention.

11 The application for review of the Tribunal's decision was in a common form signed by the applicant on 26 October 1999 and making the broad assertions that the Tribunal's decision involved an error of law, being an error involving the incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the Tribunal or both. It was also said that the Tribunal made findings of fact upon which its decision was based that were not rationally supported by probative evidence and failed to rationally consider the probative evidence that was before it. It is painfully obvious that Mr Singh had no idea of the content of the application which he signed, which is in a common form used in relation to applications for review under the Migration Act for people in the Port Hedland Detention Centre.

12 In addressing the Court, without the benefit of legal representation, he was unable to identify any error of law. No doubt the distinction between an error of law and an error of fact escaped him, as it escapes many people, whether they come from other countries or not. In essence, Mr Singh was seeking the Court's factual review of the Tribunal's decision. He made some point of the apprehension of his father and brother by the police which he had, as it turns out, asserted before the Tribunal. He asserted to the Court that his father and brother were still in custody. In relation to the question of possible relocation and why he could not live elsewhere in India, he asserted that he would be recognised in another city, known not to be a local and that the police, who are very powerful, would take him back to his village. None of that identifies any error of law and on the face of the Tribunal's reasons there is no error of law apparent. They have applied the relevant principles. They have made their finding based upon a rejection of the factual aspects of Mr Singh's claims. In substance, the Tribunal did not believe Mr Singh's account of events which he said led to his departure from India. Absent any error of law, that decision cannot be reviewed in this Court. For those reasons, the application for review will be dismissed.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice French .

Associate:

Dated: 20 January 2000

	Mr A. Singh appeared in person.
Counsel for the Respondent:	Mr J.C. Curthoys
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	20 January 2000
Date of Judgment:	20 January 2000