Harbans Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 77 (10 February 2000)

Last Updated: 15 February 2000

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 77

HARBANS SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

S 22 OF 1999

MANSFIELD J

10 FEBRUARY 2000

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 22 OF 1999

BETWEEN:	HARBANS SINGH Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	MANSFIELD J
DATE OF ORDER:	10 FEBRUARY 2000
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1. The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 22 OF 1999

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

JUDGE:	MANSFIELD J
DATE:	10 FEBRUARY 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

Introduction

1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 15 February 1999. The Tribunal affirmed a decision of a delegate of the Minister for Immigration and Multicultural Affairs ("the Minister"), made on 21 June 1997, not to grant to the applicant a protection visa. The applicant's wife and two children were included in his original application before the Tribunal. They are not parties to the present application.

2 As appears from the Tribunal's reasons, only the applicant made claims under the Convention. He was referred to as the "applicant father" in the Tribunal's reasons, but I shall refer to him in these reasons simply as the applicant.

3 It is a criterion for the grant of a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act") that the Minister, and on review the Tribunal, be satisfied that the applicant is a person to whom Australia owes protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 21 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention").

4 If the applicant is to be entitled to the visa sought he must qualify as a refugee under Article 1A(2) of the Refugees Convention. He must be a person who:

"... owing to well-founded fear of being persecuted for reasons of race religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country..."

Background

5 The applicant is an Indian citizen. He was born in the Punjab region on 14 November 1952. He is a Sikh. He married in 1986. He arrived in Australia with his wife and two children on 25 November 1996. On 6 January 1997 he lodged an application for a protection visa.

6 The Tribunal appears to have accepted that the applicant gained an arts degree in 1974, a masters degree in commerce in 1978 and a law degree in 1983. He speaks Punjabi, English and Hindi. The applicant worked as an accountant in the Punjab region between June 1980 and January 1982 and then from March 1985 to June 1994.

7 He left India and commenced employment as a general manager of a business in Shanghai, China in July 1994, and remained in that position until November 1995. He obtained a passport in his own name to leave India, although he paid bribes to expedite its issue, and re-entered India legally for a short period in about November 1994 to see his mother. His passport later expired, and he was issued with a fresh legal passport in his own name on 3 August 1996.

The Claims

8 The applicant's claims as to why he was a refugee were made and explained in writing in his initial application to the Tribunal (made through his migration agent), in a further letter from his migration agent to the Tribunal dated 13 September 1997 and its enclosures, and then in the oral evidence given to the Tribunal by the applicant, by his wife, and by another person. The Tribunal placed no weight on that person's evidence, because of its lack of specificity and because it was hearsay upon hearsay and because the ultimate source of that information was not clearly a person who had direct knowledge of the matters dealt with.

9 In the applicant's application for a visa, he claimed that he had a well founded-fear of persecution were he to return to India because he was a human rights activist who had attempted to expose repressive use of power by the authorities in the Punjab. Such activities, he claimed, led to persons in his position being vulnerable to police intimidation and harassment and to contrived confrontations where Sikhs were killed. He also spoke generally of his leftist affiliations. He feared that if forced to return to India he would be killed because he was a human rights activist and a "suspect" named in secret state files. He named certain vigilante grounds which, he said, undertook vengeful violence against human rights activists, with the approval of the State. He named several Sikh human rights activists who had been killed. He claimed that he had worked with these people and shared common beliefs.

10 In his application for review to the Tribunal, the applicant claimed that he was a Naxalite whilst at college and university, and was detained and beaten by police. He said he has remained a committed member of the Naxalites, and has been regularly monitored by police since that time. The letter from his migration agent of 13 September 1997 enclosed documents including one purporting to be an identity card of the applicant as a member of the Communist Party of India, Marxist-Leninist (Punjab), section and another document referring to that membership. It also enclosed evidence from his employer in India dated 27 January 1982 that his then employment as an accountant was terminated "on account of adverse report received from the Police authorities".

11 In his oral evidence to the Tribunal, the applicant said that that employment was terminated because of the police report, but was restored to him by Court order. In the meantime he worked as a lawyer. He also explained that he participated in demonstrations and strikes between 1972 and 1975 as a Naxalite and was frequently detained by police. The Tribunal found that he was not active in the Naxalites after 1975, and was not detained or questioned by police between 1975 and 1991. In 1991, he said he joined the Punjab Human Rights Organisation as a Naxalite nominee and attended its meetings. He claimed to have been detained and beaten by the police for two days in about April 1993 because of those activities, but was then released. He also claimed to have been detained again by police in or shortly before June 1994 and beaten badly, leaving scars on his skull, before again being released. It was shortly after that occasion that he moved to Shanghai. The applicant's wife did not confirm those claims. She said the applicant had been detained by police only once after their marriage, in about 1988 or 1989 for some two to three months, and did not relate any detention or severe beating in 1993 or 1994.

The Tribunal's Findings and Reasons

12 The Tribunal, having recorded the applicant's complaints, considered country information concerning the state of affairs in India. It then turned to its findings in light of his complaints and his evidence and the evidence generally.

13 The Tribunal expressed reservations regarding the applicant's credibility in a number of respects. Firstly, the Tribunal was "highly sceptical" as to whether the applicant was ever a member of the Naxalite group. The Tribunal's reservations on this issue stemmed from the following considerations:

(i) the applicant did not mention this membership until his review application;

(ii) the applicant was issued with a law degree in 1983, which the Tribunal assumed was subject to some form of character check that would have disclosed the applicant's affiliations and jeopardised his degree;

(iii) the Tribunal found that the documents indicating that the applicant was a member of the Communist Party of India, Marxist-Leninist group, were fabricated to enhance the applicant's claim;

(iv) the police report that led to his employment being terminated in 1982 does not clarify whether he was a member of the Naxalites.

14 The Tribunal also did not accept that the applicant had been detained after 1975, if he was ever detained. It regarded the failure of the applicant to mention having been detained at any time on his initial application for a visa as being significant. It also noted that the applicant's wife had provided inconsistent evidence on the issue of detention in a number of critical respects. The applicant's credibility was also shaken, in the Tribunal's view, when he proved to be ignorant of the governmental human rights bodies in India during the years between 1991 and 1994 when he claimed to have been a human rights activist. There were other matters referred to by the Tribunal in its reasons which caused it to have doubts about the applicant's credibility.

15 The Tribunal concluded that whilst much of the applicant's claims appeared unreliable, it was willing to accept certain aspects of it. It said:

"The omissions and inconsistencies noted immediately above go to the heart of the applicant father's claims, and therefore the Tribunal is left with a doubt as to whether the applicant father's entire claims are fabricated. However, despite it [sic] reservations, the Tribunal has given the applicant father the benefit of the doubt to an extent, and has determined the applicant's claims on the following facts: the applicant father was an ordinary member of the Naxalites from 1972 to 1975 while at college and he was detained on some occasions, with others, at demonstrations; he was held each time for a short period, not exceeding a day each time, and was not at any stage in India formally charged; the applicant father has had no Naxalite involvement since 1975; in 1982, the applicant father was given an unsatisfactory police report and his employer, a semi-government body, dismissed him on the basis of this report; he was reinstated to his job in 1985 after taking court action; he remained in this job until he left India in June 1994; he was an ordinary member of the Punjab Human Rights Organisation from 1991 to 1994; he received a passport with his own details in 1993 and this was renewed by the Indian authorities in the [Peoples Republic of China] in 1994, again with his own details, albeit with a different looking passport photograph of him; he paid a bribe to speed up issue of his passport in 1993, but did not pay a bribe for the passport issued in the [Peoples Republic of China]; he returned to India in August 1994 and did not experience any problems, despite briefly visiting his former residence in Punjab, staying with his mother for a few days in Punjab, and staying the remainder of his ten days' visit with his in-laws in Uttar Pradesh, which is a neighbouring state to Punjab; the police asked the applicant mother where he was (several times in 1992 to 1993, and asked his brother and mother several times in mid-1994, but there have been no inquiries of his family since July 1994."

16 The Tribunal concluded, on the basis of those findings, that there was no present significance in the applicant's Naxalite activities and in what had happened to him whilst engaged in those activities, in particular having regard to his reinstatement in employment in 1985 which he then maintained to 1994.

17 The Tribunal then addressed the significance of his activities as a member of the Punjab Human Rights organisation between 1991 and 1994. It noted country information that prominent human rights activists, and their families, have been harassed, detained and even killed by the police in Punjab. It also noted that country information indicated that the situation in Punjab has increasingly improved from 1993. It noted that it was common for passports to be obtained via agents, and that bribes were commonly paid to expedite such processes. This did not indicate that the applicant was of concern to the authorities. It noted information that the fact that the applicant had been able to enter and exit India using his passport in his own name without any form of harassment or attempt at prevention meant that he was not of concern to the authorities and that there was no arrest warrant in force at the time.

18 It concluded, after referring to the apparent interest of the authorities in the applicant up to 1994:

"... the Tribunal accepts that there may be a chance that if he returns to Punjab, he may be at risk on account of his past human rights involvement. The Tribunal finds that given the applicant father has not continued his human rights activities after his departure from India in 1994, and given that the Tribunal has found above that the applicant father was not detained, if at all, after 1975, the Tribunal finds that any risk he may face on return to India pursuant to his past human rights involvement is remote."

19 Accordingly the Tribunal found that the applicant was not a refugee under the Convention.

20 The Tribunal also appears to have rejected the applicant's claim on another basis. His fears of persecution related to what might befall him if he were to return to the Punjab region. As Black CJ indicated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-443 ("Randhawa"), even if the applicant has a well-founded fear of persecution if he were to return to Punjab, it is necessary to consider whether he may nevertheless avail himself of the real protection of India elsewhere within India. To determine that question, it is necessary to determine whether the applicant could reasonably be expected to relocate to another area of India, not simply to determine whether he could relocate to another area of India. See also the observations of Beaumont J at 450-451.

21 The Tribunal considered the evidence, and decided that it was not satisfied that the applicant would face a real chance of persecution for a Convention reason if he were to return to India and relocate outside Punjab.

22 It then turned to consider whether the applicant is "personally capable" of relocating elsewhere within India. That expression does not in terms reflect the question identified in Randhawa, namely whether the applicant could reasonably be expected to relocate to another area of India. The Tribunal referred to the applicant's education, literacy, professional experience, his history of having lived outside of Punjab, to the evidence that his wife and children had also lived outside of Punjab for periods, and to the evidence of his family support in the past. It concluded:

"... if the applicants do not wish to return to Punjab, they are personally capable of relocation from Punjab to another part of India. However, the Tribunal reiterates, the issue of relocation is a personal choice for the applicant father, irrelevant to this application, since the Tribunal has found above that the applicant father's fear of harm in Punjab is remote."

It concluded:

"... the Tribunal is not satisfied that the (applicant) had a well-founded fear of persecution for a Convention reason if he returns to India, nor that if he returns to India, he will face a real chance of persecution for a Convention reason."

The ground of review

23 The applicant, through his counsel, limited his application to one ground of review. The other grounds of review expressed in the amended application were not pursued. That ground was based upon ss 476(1)(g) and (4)(b) of the Act, namely that there was no evidence or other material to justify the making of the decision because the Tribunal based the decision on the existence of a particular fact and that fact did not exist. Although counsel for the applicant also referred to s 476(1)(e), he accepted that it could not enhance the applicant's position. If he did not succeed on the ground argued, he could not succeed under s 476(1)(e). There is, therefore, no need to refer separately to that provision.

24 The particular fact identified was that the applicant did not, in his initial application to the Minister, make a claim that he had been detained by the authorities in Punjab after 1975.

25 In Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 ("Curragh") Black CJ (with whom Spender and Gummow JJ agreed) said at 220-221:

"...If the existence of a particular fact is seen to be critical to the making of a decision then the decision will be based on the existence of that particular fact. In Bond's case (supra) Mason CJ said (at 357) that s 5(3)(b) was directed to "proof of the non-existence of a fact critical to the making of the decision" [my emphasis]. See also Luu v Renevier (1989) 91 ALR 39 at 47 where a Full Court of this Court (Davies, Wilcox and Pincus JJ) used the word "critical" to distinguish unsupported findings of fact that go to the validity of a decision from findings relating only to a matter of peripheral importance that may not affect the validity of a decision.

Section 5(3)(b) does not required the identification of some single particular fact that may be said to be the foundation of the decision. A decision may be based upon the existence of many particular facts; it will be based upon the existence of each particular fact that is critical to the making of the decision. A small factual link in a chain of reasoning, if it is truly a link in a chain and there are no parallel links, may be just as critical to the decision, and just as much a fact upon which the decision is based, as a fact that is of more obvious immediate importance. A decision may also be based on a finding of fact that, critically, leads the decision-maker to take one path in the process of reasoning rather than another and so to come to a different conclusion."

That passage refers to the provisions of ss 5(1) and (3)(b) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), which are parallel to the terms of ss 476(1)(g) and (4)(b) of the Act. It is a passage which is frequently applied to those provisions in the Act: eg. Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 854 (French, R D Nicholson and Finkelstein JJ, 25 June 1999).

26 The particular fact identified was critical to the making of the decision, it was argued, because it was a critical link in the chain of reasoning that led the Tribunal to reject the applicant as a credible witness.

27 I do not consider that the applicant succeeds on the ground of review argued.

28 Firstly, I am not persuaded that the particular fact identified by counsel for the applicant did not exist. In his application for a protection visa, the applicant did not, in terms, state that he had been detained by authorities either before 1975 or in 1993 or 1994. Reference has been made above to the claims made in that application. Counsel referred to the applicant's answer to the question of why he would be harmed if he returned to India. The application said:

"They will kill me, because I am committed human rights worker and having leftist affiliations brought me to notice. Also working in association with [named persons] brought me to their notice and got harrassment, police raids, intimidation and torture in return as reward for working for the establishment of a just society, based on human urge for freedom, equality, justice, fraternity and brotherhood."

29 It was put that there could not be torture without detention. The detentions in 1993 and 1994 which the applicant described in his evidence to the Tribunal were not expressly mentioned, nor detentions before 1975. The Tribunal, in questioning the applicant, raised that particular matter of concern. Its reasons indicate that the applicant accepted that his initial application did not expressly refer to any occasions he had been detained by the authorities. He proffered reasons why he had not done so. In expressing its several reasons for its reservations about the applicant's credibility, the Tribunal noted those explanations, in conjunction with other factors including the inconsistency between his and his wife's evidence about detentions in 1993 and 1994. I do not consider that the terms of the initial visa application clearly show, in the face of the Tribunal's understanding and the applicant's acknowledgment of the accuracy of that understanding, that the applicant did assert that he had been detained by the authorities in 1993, 1994 and up to 1995.

30 Secondly, in my judgment, the (asserted) non-existence of that particular fact was not "critical" to the Tribunal's decision. The gravamen of the Tribunal's concern, understandably, was that the two particular incidents of detention in 1993 and 1994 were not initially reported in the application. Clearly, they were not. The Tribunal was understandably concerned about that. The incident in 1994, on the applicant's oral evidence, was a particularly unpleasant one. In addition, notwithstanding its concerns about the applicant's credibility, the Tribunal did accept a substantial part of his evidence, including that he had been detained on some occasions between 1972 and 1975. I do not consider that the findings of the Tribunal about the extent of his political activities after 1994, and whether he had been detained as he alleged in 1993 and 1994, depended critically (in the sense described in Curragh) upon the particular fact which it is said did not exist. That particular fact is not truly a link in a chain of reasoning. The findings of fact were based upon an overall perception of the evidence given by the applicant and his wife, and the country information. In the case of the applicant, it is clear that the Tribunal had several reasons not to accept his evidence as to the extent of his human rights activism between 1991 and 1994, of which his failure specifically to assert detentions in 1993 and 1994 appears to have played a part. Having carefully considered the Tribunal's reasons, I do not consider that the general failure to assert detentions in the initial application (which is the particular fact identified by the applicant's counsel) itself played such a role in the decision making process as to lead the Tribunal to take one path in its process of reasoning rather than another, or was truly a link in the Tribunal's chain of reasoning.

31 As indicated above, the Tribunal appears to have indicated an alternative reason for its decision, namely the applicant's ability to relocate to some other part of India than Punjab if he were to return to India. As counsel for the applicant contended, the expression of the Tribunal's reasons on this aspect is curiously worded. Randhawa draws the clear distinction, in the application of the "relocation principle" (to use the words of Black CJ in Randhawa at 441), between the physical capacity to relocate to another part of a country and whether the visa applicant may reasonably be expected to relocate to another part of the country.

32 The Tribunal paraphrased that formulation by asking whether relocation was a "reasonable option" for the applicant. No complaint was made of that expression. Then, having addressed the question whether the applicant might be at risk if he were to return to other parts of India, it considered whether he was "personally capable" of relocation from Punjab to elsewhere within India. It referred to a number of factors which might indicate that it was considering whether it was reasonable to expect him to relocate, although such factors are or may also be relevant to the physical capacity to relocate. It concluded, as noted earlier, that he was personally capable of relocating. I am mindful that the reasons of the Tribunal should not be read with an eye keenly attuned to the perception of error: Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272, 290-295; Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287. However, in my judgment, the Tribunal's concept of personal capability does not sufficiently reflect the proper legal test as specified in Randhawa to be satisfied that the Tribunal in fact addressed the correct question on this issue. Personal capacity seems more to relate to the physical capacity to relocate, as distinct from whether the applicant may reasonably be expected to relocate elsewhere within India. It is that distinction which Randhawa established. In my view, the Tribunal has blurred that distinction and so has failed to address the correct question on this issue.

33 In view of the conclusion which I have reached on the ground of review pursued, that error on the part of the Tribunal does not invalidate its conclusion. In my judgment, for the reasons given, this application should be dismissed. I so order.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate:

Dated: 10 February 2000

Counsel for the Applicant:	Mr M Clisby
Solicitors for the Applicant:	Mark Clisby
Counsel for the Respondent:	Ms S Maharaj
Solicitors for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 January 2000
Date of Judgment:	10 February 2000