Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253;

Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; - FCA 1994 case summary — Zoe

[15]

'5.6.3 I accept that the applicant's father and

brother Tanjit, (or Gurdeep), were

murdered in the Punjab and that this may

have been due to their religious and

political beliefs. I also accept that the

disappearance of another brother may have

been related to the same incident.

5.6.4 The RSRC Committee considered the applicant's claims

on 18 February 1993 and voted by a majority of 3-1

against recommending refugee status to the applicant,

on the basis that the applicant could live safely

outside of the Punjab and that it would not be

unreasonable to expect him to do so, particularly as

he has lived outside the Punjab previously.

5.6.5 I agree with the majority view, particularly in the

light of the information contained in DFAT cables O.ND

84486 0853 of 6/7/92 and O.ND86328 0902 of 2/2/93,

which states that although Punjabis have reason to

fear violence in their state, they can and do move

elsewhere in India and there is no need to flee the

country.

5.6.6 While I accept that the political profile of the

applicant's family could result in the applicant

experiencing adverse treatment if he were returned to

the Punjab, my task is to assess whether his fear is

well-founded in relation to his country of

nationality, not simply the region in which he lived.

5.6.7 On the basis of advice in the above DFAT cables, I

find that the applicant could reasonably be expected

to relocate to another area of India. While I have

considered the applicant's claims that he could not

relocate (11, 28 and 35), I give greater weight to the

DFAT advice as DFAT is the expert agency of the

Commonwealth of Australia with respect to the

professional and impartial collection, interpretation

and reporting of in-country information.

5.6.8 The sources quoted in the recommendation by the DILGEA

representative on the RSRC refer to difficulties faced

outside the Punjab by suspected armed secessionists

and militant students. I find that these reports are

not relevant to the applicant's circumstances as

neither he nor his family fall within either group.

5.6.9 In relation to the claim that the applicant's Sikh

culture prevents him from relocating (11), I find that

it is not unreasonable for the applicant to relocate

for the following reasons:

. the DFAT cables advise that there are large

communities of Sikhs in several areas outside

the Punjab, thereby providing the opportunity

for the applicant to live within a Sikh

community if he relocated; and

. the applicant has lived outside the Punjab

previously.'

[18]

7. Counsel for the appellant contended that in considering the application of Article 1A(2) of the Convention to a case such as the present the focus of attention should be on the country of the refugee's nationality as a whole and that it was erroneous to consider the position of an applicant for refugee status in relation to a part or parts only of a country as had been done, he argued, in this case. He contended that if, at least in relation to the part of a country that was an applicant's home, a person has a well-founded fear of being persecuted for a Convention reason, such that he is unwilling to avail himself of the protection of that country, a person would be a refugee within the Convention definition notwithstanding that he might not have that fear in some other part of the country. In other words, what is sometimes referred to as "the internal protection principle" had no place in refugee law. Alternatively, counsel submitted, if it is permissible to consider whether an applicant for refugee status could reasonably relocate in his or her country of nationality, the raising of such an issue fundamentally changed the nature of the inquiry that the decision-maker was obliged to undertake. In particular, he contended, a decision-maker's duty was not discharged by asking whether, in a general way, it was reasonable in the circumstances for an applicant to relocate to another part of a country but that a series of specific matters needed to be addressed, including the area, city or region to which it was contemplated that an applicant could relocate and also what counsel described as the general lifestyle adjustments that would need to made by a person were he or she to relocate within the country of nationality. It was said that in the present case the decision-maker did not make any proper assessment of the relocation option, that the relevant questions were simply not asked or addressed and that the primary judge should have found that, for these reasons, the decision-maker had erred in law.

[39]

(1) A summary of the claims and submissions advanced on behalf of

the appellant is made (para.3). One of the claims was that:

"(11) the (appellant) could not move to another part of the

Punjab or India as terrorism legislation is

manipulated to detain Sikhs for protracted periods.

Further, Sikhs are provided no protection by the

authorities, and the (appellant's) family has already

been subjected to murder and threats. It is contrary

to Sikh culture for Sikhs to live by themselves."

Documentation in support of some of the claims is mentioned

(para.4).

(2) The process of assessment of refugee status then proceeded in

this way:

(a) It was accepted that the appellant did not wish to avail

himself of the protection of India. The issue for

assessment was whether this was, in relation to a

Convention reason, a well-founded fear of persecution

(para.5.1.2).

(b) Reference was made, in the context of the alleged "political

opinion" Convention reason (which was linked with the other

Convention reasons of race, religion, nationality and social

grouping), to the profile of the appellant's father as a member

of the Akali Party and the killing of the appellant's father

and brother by a Hindu group, allegedly because of their Sikh

faith (para.5.6.1). It was noted that the appellant's case was

based on the risk of persecution he faced because of his own

activities undertaken in support of his father (para.5.6.2).

(c) It was accepted by the delegate that the appellant's father and

brother were murdered in the Punjab and that this may have been

due to their religious and political beliefs; and that the

disappearance of another brother may have been related to the

same incident (para.5.6.3.).

(d) The delegate agreed with the majority (3 - 1) vote of the

RSRC on the basis that the appellant could live safely outside

of the Punjab and that it would not be unreasonable to expect

him to do so, particularly as he had lived outside the Punjab

previously (para.5.6.4), particularly in the light of

information in cablegrams from the Department of Foreign

Affairs and Trade ("DFAT") dated 6 July 1992 and 2 February

1993 stating that, although Punjabis have reason to fear

violence in their state, they can and do move elsewhere in

India and there is no need to flee the country (para.5.6.5.).

[43]

"INTERNAL FLIGHT

7. RELOCATION WITHIN INDIA, AS DESCRIBED IN OUR O.ND84486

OF 6 JULY 1992, REMAINS A VIABLE OPTION AND ONE WHICH HAS

BEEN USED, AND CONTINUES TO BE USED, BY MANY. THERE IS

LITTLE WHICH CAN BE ADDED TO EARLIER ADVICE, ALTHOUGH BOMBAY

WOULD BE AN UNLIKELY DESTINATION IN THE CURRENT CLIMATE FOR

THOSE SEEKING TO ESCAPE STRIFE.

HUMAN RIGHTS SITUATION IN THE PUNJAB.

8. MEDIA OBSERVERS OF THE RECENT PANCHAYAT ELECTIONS IN THE

PUNJAB HAVE COMMENTED FAVOURABLY ON THE CHANGED MOOD OF THE

STATE, ALTHOUGH VARIOUS PROMINENT AKALIS WERE BRIEFLY

DETAINED IN THE RUNUP TO THE POLLS. MASSIVE POLICE

OPERATIONS HAVE DESTROYED MOST OF THE ACTIVISTS' LEADERSHIP,

CURTAILED THEIR EFFECTIVENESS AND RESULTED IN THE COLLAPSE

OF NEW RECRUITMENT. FEWER INSURGENTS, AND FEWER POLICE, ARE

NOW BEING KILLED. THERE IS A SLOW RETURN TO NORMALCY OF

BASIC INSTITUTIONS, MOVEMENT OF THE POPULACE AT NIGHT,

EVENING OPERATION OF CINEMAS AND A PROLIFERATION OF MEAT AND

LIQUOR STALLS ONCE MORE (A SECTION OF THE MILITANTS HAD

LAUNCHED A STRONG ANTI-MEAT, ANTI-LIQUOR DRIVE TWO YEARS

AGO).

9. HUMAN RIGHTS ABUSES CERTAINLY PERSIST ON BOTH SIDES,

WITH HUMAN RIGHTS GROUPS CONTINUING TO QUESTION CERTAIN

'ENCOUNTER' KILLINGS BY THE POLICE, OR SPORADIC ROUNDUP AND

BRIEF DETENTION OF YOUNG SIKH MALES. THE MILITANTS STILL

TERRORISE AND DETAIN THEIR OPPONENTS, BUT IN RECENT MONTHS

HAVE CHOSEN 'SOFT' TARGETS SUCH AS HINDUS OR LOW-CASTE SIKHS

RATHER THAN THE POLICE. WITH THE DECLINE IN POWER OF THE

MILITANTS, THE HUMAN RIGHTS SITUATION IN PUNJAB IS

IMPROVING, BUT STATE (AND CENTRAL) GOVERNMENT OFFICIALS'

REFUSAL TO ACKNOWLEDGE THAT CONTINUED ABUSES OF OFFICIAL

POWER CAN LEAD TO DISAFFECTION INDICATE THAT THERE IS STILL

SOME WAY TO GO BEFORE THE PUNJAB TRULY RETURNS TO NORMALCY."

(e) Whilst it was accepted that the political profile of the

appellant's family could result in the appellant experiencing

adverse treatment if he were returned to the Punjab, the

question remained whether his fear was well-founded in relation

to his country of nationality, not simply the region in which

he lived (para. 5.6.6.).

(f) Accepting the DFAT advice (above), a finding was made that the

appellant could reasonably be expected to relocate to another

part of India. While the appellant's claims to the contrary

were considered, greater weight was given to the DFAT advice as

DFAT was "the expert agency of the Commonwealth of Australia

with respect to the professional and impartial collection,

interpretation and reporting of in-country information"

(para.5.6.7.).

(g) In relation to the claim that the appellant's Sikh culture

prevented him from relocating (claim 11), it was found that it

was not unreasonable for him to relocate for the following

reasons:

. the DFAT cables advised that there were large communities of

Sikhs in several areas outside the Punjab, thereby providing

the opportunity for him to live within a Sikh community if

he relocated; and

. he had lived outside the Punjab previously.

[58]

"Mr Blake, in my judgment, was right not to embrace the

submission made by Mr Drabu before the Immigration Appeal

Tribunal to the effect that if a person has to refrain from

political activity in order to avoid persecution he should

qualify for political asylum. That is going much too far.

What appears to be said here however, is that there was no

material risk to the applicant if he was to live in the

remote village which I have described where he would be, it

seems, separated from his wife and unable to pursue the

employment as a trade union official which he has carried

out for 30 years.

Even so, says Mr Pulman, the courts must remember that the

test of persecution is and must be kept at a high and

demanding level. The textbook of Macdonald on immigration

law and practice ... at page 240 records that decisions of

the United Kingdom appellate authorities, upon the paragraph

in question, indicate that persecution must be of a very

serious kind. At its lower level, says Mr Pulman, really it

becomes a question of fact and degree whether what is the

subject of a well-founded fear, amounts to a fear of being

persecuted within the meaning of the Article. That,

broadly, is common ground, but what is meant by persecuted?

The dictionary definition, according to the Shorter Oxford

English Dictionary, has under 'persecute' the meanings: 'To

pursue, hunt, drive' firstly, and secondly: 'To pursue with

malignancy or injurious action; esp. to oppress for holding

a heretical opinion or belief'.

I find this by no means an easy matter to judge, but to my

mind the proper approach must be to apply to the word

'persecution' its ordinary meaning as found in the

dictionary. I accept, of course, that considerations of

policy may require a stringent test to be adopted if this

country is not to be flooded with those claiming political

asylum, but I can do nothing other than go by the language

used in paragraph 134 and I see no reason for giving that

language anything but its ordinary meaning.

To my mind, accepting what was recognised by the adjudicator

in this case as the likely consequence of the applicant's

return to Ghana, it follows as a matter of law that there

was a well-founded fear of the applicant being persecuted in

the ordinary meaning of that word - that is to say,

subjected to injurious action and oppression - by reason of

his political opinion and membership of a social group

opposed to the government. On that narrow ground,

therefore, I would grant the applicant the relief sought."

At a glance

Court

Decision date

Before

Source

Judgment (77 paragraphs)

Harjit Singh Randhawa v the Minister of Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 124 ALR 265 (11 August 1994)

Parties

Legislation Cited (1)

Cases Cited (4)