Sawhney v Minister for Immigration & Multicultural Affairs [2000] FCA 80 (24 January 2000)

Last Updated: 15 February 2000

FEDERAL COURT OF AUSTRALIA

Sawhney v Minister for Immigration & Multicultural Affairs [2000] FCA 80

THALJIT SINGH SAWHNEY v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

S 38 OF 1999

MANSFIELD J

24 JANUARY 2000

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 38 OF 1999

BETWEEN:	THALJIT SINGH SAWHNEY Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	MANSFIELD J
DATE:	24 JANUARY 2000
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1 This is an application to review the decision of the Refugee Review Tribunal ("the Tribunal") given on 3 May 1999. The Tribunal upheld a decision of a delegate of the respondent ("the Minister") not to grant to the applicant a protection visa. That was not the first occasion that the matter had come before the Tribunal.

2 The applicant arrived in Australia on 26 July 1995. On 25 August 1995 he applied for a protection visa under the Migration Act 1958 (Cth) ("the Act"). The Minister, through his delegate, refused to grant that application on 8 May 1998. That decision was first challenged by application to the Tribunal on 28 May 1998. On 23 June 1998, the Tribunal affirmed that decision. However, on 17 December 1998 this Court set aside the decision of the Tribunal with the consent of both the applicant and the Minister. The matter was remitted to the Tribunal for reconsideration. It is the decision of the Tribunal upon that reconsideration which is the subject of the present application.

3 It is a criterion for the grant of a protection visa under s 36 of the Act that the Minister or, on review the Tribunal, is 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 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). To so satisfy the Minister or the Tribunal, it is necessary that he must satisfy them that he qualifies as a refugee under Article 1A(2) of the Convention. That is, 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; ..."

4 The applicant is a thirty-four year old Sikh man. He is a citizen of India. He has three younger brothers and a sister. Two of his brothers work in India and the other lives in the United States. One brother is a lawyer. He comes, as the Tribunal found, from New Delhi.

5 There has been no submission that the Tribunal did not accurately record the nature of the applicant's claim in its reasons. I briefly outline the nature of that claim from the reasons. Essentially, the applicant claimed that he was vulnerable to persecution if he were to return to India by reason of him being a Sikh. The applicant said that in 1984, after the assassination of Indira Gandhi, his father's shop was looted and burned. In 1990, he joined the All India Sikh Student Federation ("AISSF") in which he undertook a number of cultural activities and was active in promoting the Sikh culture. He also participated in political marches. His last involvement with that organisation was in 1994.

6 On 22 March 1991 he was arrested and detained. Whilst in prison, he claims to have been mistreated. To the Tribunal he claimed that he was arrested because he was transporting weapons from one area to another on behalf of the AISSF although at another point in the evidence before the Tribunal he said that he was smuggling documents for the AISSF from one area to another. As the Tribunal noted, the documentation relating to this offence provided by the applicant and by his father indicated that the basis of the charge was for some form of customs offence. I will return to that matter shortly.

7 The applicant was brought before a magistrate on 23 March 1991. His case was dismissed.

8 There were other claims of the applicant which I can deal with briefly. The applicant claimed that, a few months before he left for Australia, the CBI had come looking for him on at least two occasions and that they had told his sister when they were looking for him that they were threatening him with proceedings under the Terrorist and Disruption Act. He said that he bribed officials at the airport to let him through when exiting the country, and for this reason he was not then arrested.

9 He said that he did not wish to return to India because, based on his experience and the reports of others, he feared that he would be imprisoned and killed by the police on account of the fact that he is a Sikh. He is from a middle-class family and has made a good living in India. All but one brother of his siblings are settled in India. He claimed, however, that he feared genuinely for his life were he to be returned to India.

10 The Tribunal accepted largely that the applicant was a truthful witness. It accepted that the applicant's father's shop may have been burned in 1984 and, further, that the applicant was arrested on 22 March 1991 for some form of offence. It also accepted that he may have been a member of the AISSF. However, the Tribunal did not accept the applicant's claim that those instances arose due to the fact that the applicant and his family were Sikhs.

11 In respect of the burning of the father's shop in 1984, it found that that occurred as part of widespread communal violence and was a sporadic and unplanned event. In respect of the claim that the applicant was arrested for activities to do with transporting weapons or documents for the AISSF, the Tribunal said:

"I accept that the applicant was arrested in 1991 on a criminal or customs matter. I note, however, that the applicant has claimed at the hearing that he was arrested on the basis of taking weapons from one area to another, and in the earlier Tribunal hearing that he was because [sic] of smuggling documents for the Sikh Student Federation.

I am prepared to accept that the applicant may have been subjected to threats from the local police that they would also seek to charge him on other matters related to the Sikh insurgency. I accept this claim on the basis that country information indicates that in 1991 Sikh militancy and police brutality were at their peak, although primarily in the Punjab. I find, however, that this event was a one-off event, which was undertaken by local officials who exploited a security situation for their own private gain. As such it was an individual criminal matter which was not condoned by the state."

A little later in its reasons the Tribunal added:

"I do not accept that this charge by the police was a pretext because he was a Sikh, given that the applicant indicated that he has never been arrested by the authorities at any other time in the over four years that he continued to travel in and out of the country, and that the nature of his business was such that he would have dealt with officials frequently in the importation of his clothing and his overseas travel."

12 The Tribunal specifically referred to country information confirming widespread violence and human rights abuses on both sides in the Punjab in 1991 in making those comments. Subsequently in the course of its reasons it referred to other country information showing the mistreatment of Sikhs by authorities in the Punjab, but of diminishing frequency in the succeeding years. The Tribunal did not accept that the applicant was tortured at the time of the 1991 arrest. Its conclusion was based in part upon the fact that that claim of torture was not made in the original application, despite its serious nature.

13 The Tribunal also had difficulty in accepting the applicant's claim that he had been pursued by the CBI in India before he left India in 1995. A letter had been produced by the applicant from his father in an endeavour to support that claim, but the Tribunal regarded it as too vague to carry much weight in support of the applicant's claim. It commented that the applicant had the means to engage a lawyer to inquire with the CBI about its reasons for its interest. It also found that the applicant formed the intention to go to Australia whilst he was in New Delhi, and received a one-month visitor visa to Australia in New Delhi. That was contrary to the applicant's claim that he formed that intention later, whilst he was in Bangkok on business, and it was only at that point that he became concerned by reports that officials had been looking for him.

14 The Tribunal also found that any bribe or extortion invited by officials was motivated by the fact that the applicant was in a position financially to meet such demands, and not because he was a Sikh. The applicant gave evidence that he was a successful businessman who regularly went overseas. On that basis, the Tribunal rejected the applicant's claim that if he were to return to India he was at risk of being imprisoned and killed because he was a Sikh.

15 The Tribunal observed that the applicant is not from the Punjab. He is from a middle-class background. His activities in relation to the AISSF were not such as to give him a profile which would be of interest to the authorities. Accordingly, the Tribunal found that the applicant did not have a well-founded fear of being persecuted for a convention reason if he were to return to India.

16 The ground of review argued on this application has been confined to invoking s 476(1)(g) of the Act, namely that there was no evidence or other material to justify the making of the decision. Section 476(4) indicates that that ground is not to be taken to have been made out unless one of two alternatives are established. In this instance it is only alternative (b) which is relied upon, namely, that the person who made the decision based the decision on the existence of a particular fact and that fact did not exist.

17 There are three findings of the Tribunal which, it is contended, are particular facts upon which the decision was based and which facts did not exist. Those three findings are in the two passages from the Tribunal's reasons which are quoted above. They are:

* the Tribunal did not accept that the charge of 22 March 1991 by the police was a pretext because the applicant was a Sikh.

* the Tribunal found that any threat from the police to charge the applicant with additional matters relating to the Sikh insurgency, perhaps because he was a Sikh, was a one-off event which was undertaken by local officials who exploited a security situation for their own private gain and was not a matter condoned by the state and,

* the Tribunal found that the applicant was arrested in 1991 on a criminal or customs matter and not for the transportation of documents or weapons of behalf of the AISSF.

Those matters largely overlap because they relate to the same transaction.

18 I do not accept the submission that the particular fact that the applicant was arrested in 1991 on a criminal or customs matter and not on a matter concerning the carrying of weapons or documents on behalf of the AISSF was a fact which did not exist.

19 When the applicant first made his application for review, he did not complete those questions which concerned his reasons for leaving India and his fear of what might happen to him if he were to return to India. Shortly after that application was made, his migration agent lodged material in support of the claim, which included a statement of the applicant dated 31 August 1995. In that statement, he said of the arrest on 22 March 1991:

"I was arrested by Indian officials for over travelling. They were suspicions (sic) because they thought I may be a terrorist. They also knew I am Sikh. They knew about my destroyed shop. So they got more suspicions. They might be thinking after revenge for my destroyed shop. The case they put on me is that I bring too much goods from Thailand. They couldn't arrest me as a terrorist because they did not have any prove (sic). On 23rd March I was proven innocent at the magistrates court."

20 A typed and signed statement from the applicant, also enclosed with the material from the migration agent, said:

"On 22nd March 1991 I was arrested, because I was going to Bangkok very frequently and was bringing goods in quantity, I got arrested because our police claimed this thing to be illegal. On 23rd March, I was produced in front of magistrate, my advocate proved that I am not guilty because buying ready-made garments from their (sic) and selling in India is not any (sic) offence. So on 23rd March my case was dismissed."

21 An affidavit from the applicant's father was also enclosed with that material. He also referred to the arrest on 22 March as follows:

"7. ...when he brought readymade (sic) garments from Bangkok, the police arrested him on the charge of excess purchase of ready made garments. He had to engage counsel when he was presented before the magistrate on the next day.

8. That on hearing the matter the Magistrate discharged him saying that the excess purchase of readymade garments is no offence."

22 In the light of that material in my view it has simply not been established that the particular fact did not exist that the applicant was arrested in 1991 on a criminal or customs matter. The applicant's own evidence tends to confirm that he was arrested for bringing in excessive quantities of goods, and that shortly after his arrest the case was dismissed. In fact the Tribunal in its reasons, when recording the applicant's evidence, refers to the fact that the applicant agreed that he had been charged with such an offence, but said that he was also threatened with other charges if he did not pay a bribe.

23 It follows from that conclusion that it is not the case that the particular fact (if it be a particular fact) namely that the charge was brought other than on the pretext that the applicant was a Sikh, did not exist. The reasons for the charge are clear, and the evidence upon which the Tribunal acted in drawing the conclusion which it did as to the reasons for the charge are also clear. It is not clear that the non-acceptance of the claim that the charge was in reality brought simply because the applicant was a Sikh is itself a particular fact. It may be simply a step in the finding of the particular fact that the charge was on a criminal or customs matter. In the present circumstances, it is not necessary to discuss that question further.

24 In my judgment it also follows that the other matter about which the applicant complains also is not shown to be a particular fact which did not exist. That is the matter which the Tribunal found in part in the applicant's favour, namely, that at the time of this charge for some form of customs offence, the local police may have taken the opportunity, which they exploited for their own private gain, of threatening him with seeking to charge him on other matters relating to the Sikh insurgency. The Tribunal found that that was a one-off event undertaken by local officials for their private gain and not a matter condoned by the state.

25 Given the material to which I have referred, and the Tribunal's findings as to the nature of those charges and their outcome, it seems to me that the Tribunal did have a foundation for expressing that conclusion. It is not necessary to go that far. In my view it is not established that the fact asserted did not exist.

26 Accordingly I do not consider that the Tribunal has been shown to have erred in the manner submitted by the applicant on this application. In my view the application should be dismissed. I so order.

27 I order that the applicant pay the respondent costs of the application, to be taxed.

I certify that the preceding twenty-seven (27) 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:	24 January 2000