Kaur v Minister for Immigration & Multicultural Affairs

The Tribunal's reasons 4 The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of "refugee" and by the notion of "persecution" according to the Convention. Reference was made to the judgments of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. 5 The Tribunal then summarised the claims made by the applicant by way of documentary materials provided, oral evidence given, and submissions made to the Tribunal. The Tribunal also considered the relevance of documents, forwarded to the Tribunal by third parties, that suggested that the applicant was being untruthful in her application. However, the Tribunal decided not to take these latter documents into account in reaching its decision. The Tribunal next reviewed a range of general materials concerning the treatment of Sikhs in India, and particularly in the Punjab. 6 Under the heading "Findings and Reasons" the Tribunal accepted various claims made by the applicant. In relation to the applicant herself it was accepted that: · she suffers from a psychological condition which has resulted in her hospitalisation and that she may have attempted to commit suicide on two occasions; · the police came to her home in December 1998 and were rude to her; · she sometimes cooked for members of the Sikh Students Federation ("the SSF") who came to her home; · in early 1996 she may have been taken to a police station (though it was not accepted that she was questioned about her claimed links to Sikh activists and militants); · on another occasion she was taken to the police station, detained overnight, and raped by two police officers (though it was not accepted that she was taken there with members of the SSF who had been at her home, nor that she was taken there because of her alleged association with Sikh activists or militants). 7 The Tribunal noted that the applicant's claims were largely founded upon the alleged activities of her husband. In relation to Mr Narinder Singh the Tribunal accepted that: · his father died soon after being mistreated by police in 1988; · he had some involvement with the SSF which included taking part in rallies and meetings, handing out pamphlets and collecting money; · he protested about the failure of the police to hand over the body of Bhai Avtar Singh Shartrana (a Sikh candidate for the 1991 elections), he was subsequently detained by the police in September 1991 (until May 1992) in order to provide information concerning the location of Bhai Jarmail (the brother of Avtar), and he was "mistreated" while in detention (though it is unclear whether the Tribunal accepted the claim that he had been tortured and threatened during his detention); · he was a member of Akali Dal (a Sikh based political party); · he was originally from Shatrana, an area noted for terrorist violence; · he is a member of the International Sikh Youth Federation ("the ISYF") and has been actively taking part in protests since arriving in Australia. 8 Having reached these factual conclusions the Tribunal then considered whether the applicant met the Convention definition. In its reasons the Tribunal stated that: "I will now consider whether those aspects of the applicant's evidence which I have accepted give rise to a well-founded fear of persecution if she were to return to India. I will first consider those claims which concern the implications for the applicant of her husband's activities … In this context, I do not believe that the circumstances of the death of the applicant's husband's father will lead her to face persecution for a Convention reason if she were to return to Punjab. I have considered the evidence about the applicant's husband's involvement with the Sikh Students Federation … I do not accept that his wife, the applicant, would be at risk for this reason. Nor do I consider that the applicant's husband's protest in 1991 about the failure of the police to hand over the body of Bhai Avtar Singh Shatrana or his detention for around eight months from September 1991 would lead him, let alone his wife, to face persecution upon return to India … The applicant's adviser has submitted that because the applicant's husband is originally from Shatrana and knew Bhai Jarmail … there is a real risk that he could be imputed to share a political opinion and harmed as a result … I do not believe that the evidence already outlined supports a conclusion that there is a real chance that the applicant's husband, let alone the applicant, would be at risk for this reason upon return. I have accepted that the applicant's husband has been a member of Akali Dal … I do not accept that his involvement was of a character which could lead to there being a real chance that he would face persecution, again let alone his wife. I have considered the implications for the applicant of her husband's membership of the ISYF … I am unable to accept that the applicant's husband's involvement in these activities would lead to the persecution of him or of the applicant … I will now set out my findings about whether those aspects of the applicant's claims which concern her alone and which I have accepted give rise to a well-founded fear of persecution … I do not consider that the fact that the police came to the applicant's home in December 1988 and were very rude to her and that the police may have come to her home in Gujarat in 1995 and also been abusive and horrible has any bearing on what she may face if she were to return to India. They seem to me to be isolated incidents, the first at a time when the authorities were taking extremely heavy-handed actions in the Punjab, and the second was a single visit after the applicant and her husband had lived in the district for sixteen or seventeen months. I do not consider that the visits are evidence of persecution or that they would occur again because of the applicant's political opinion, real or imputed. I have considered carefully the applicant's claim that she was raped by police officers in India in late 1996 … I am, however, not satisfied from the evidence before me that what the applicant experienced was because of the Convention reason of political opinion. I have not accepted that the applicant was taken to the police station, questioned and detained as she has claimed for reasons political … [T]here is no credible evidence before me to indicate that the assault had any connection to matters political, ethnic or religious. Nor do I consider that what happened to her was because of her membership of a particular social group … In view of the foregoing findings, I am not satisfied that there is a real chance that the applicant would face persecution for a reason specified in the Refugees Convention. The evidence has led me to the conclusion that her fear of what might follow her return is not well-founded. She is not a person to whom Australia has protection obligations under the Refugees Convention …" 9 With regard to the Tribunal's conclusion that the applicant was not raped because of her membership of a particular social group the Tribunal said: "A particular social group is a collection of persons who share a certain characteristic or element which unites them and distinguishes them from society at large. Not only must such persons exhibit some common element but the element must unite them, making those who share it a cognisable group within their society. The group must be identifiable as a social unit. Moreover, the characteristic or element which unites the group cannot be a common fear of persecution: the group must not be defined by the persecution: Applicant A & Anor v MIEA & Anor (1997) 142 ALR 331 per Dawson J at 341, McHugh J at 358-9, Gummow J at 375-6. In the same case, Dawson J held that the characteristic which unites members of the group must be more than common demographic factors (at 347). I consider that women or Sikh women are far too diverse a collection of persons to be seen to be united or cognisable and I do not consider that a permissible formulation of a particular social group can be established and the applicant's membership of it shown as the reason for what happened to her. In addition and in light of my findings on the applicant's claims concerning matters political, I do not consider that the Convention reason of political opinion would affect the chance that she could again be raped if she were to return to Punjab. In other words, the risk of being raped is unfortunately common to women everywhere and I do not consider that the applicant is more at risk of being raped because of any of the reasons in the Refugees Convention."

The grounds of review 10 In the proceedings in this Court, counsel for the applicant pressed two grounds of review. First, it was argued that the Tribunal failed to determine whether, on the totality of the facts as found, the applicant had a well-founded fear of persecution. Second, it was said that the Tribunal erred in finding that women in India, or Sikh women, did not constitute a particular social group. Each of these errors was said to constitute an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts, and thus to amount to errors of law pursuant to s 476(1)(e) of the Migration Act 1958 (Cth) ("the Act"). Consideration of the totality of the facts 11 Counsel for the applicant submitted that the Tribunal's reasoning, set out above in par 8, revealed an erroneous approach to the facts as found by the Tribunal. It was said that the Tribunal considered each of these facts in isolation but failed to consider their cumulative weight. This error was said to be apparent from the structure of the decision which dealt systematically with each of the factual conclusions, in each instance finding that the particular conclusion would not give rise to a well-founded fear of persecution upon return to India. This was particularly evident in relation to the Tribunal's consideration of the circumstances of the husband. Similarly, it was said that the Tribunal erroneously considered the circumstances of the applicant separately from those of her husband. By adopting this approach, it was said that the Tribunal failed to recognise a pattern of persecutory treatment. Further, it was said that the Tribunal did not consider whether in the entirety of the circumstances, including all of the aspects of Mr Singh's political involvement, the applicant had a well-founded fear of persecution, and that this amounted to a misapplication of the real chance test. 12 Had the Tribunal, in fact, adopted such an approach it would clearly have amounted to an error of law in breach of s 476(1)(e) of the Act, and perhaps also to a constructive failure by the Tribunal to exercise its jurisdiction (see Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287), resulting in a breach of s 476(1)(c). As noted by Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 ("Wu") at 294 - 295 it is necessary for the Tribunal to "consider all the relevant possibilities by looking back at the entirety of the material placed before [it]", and the decision-maker must "[stand] back from the particular grounds and consider ... the case in its entirety". Had the approach the Tribunal adopted in the section concerning the circumstances of the husband been adopted in considering (in a notional sense) an application for a protection visa for the husband then it may have manifested an error of the precisely the same type as discussed by Lindgren J in Tharmalingam v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, 19 May 1998). 13 However, several features of the Tribunal's reasons for decision indicate that the Tribunal did not adopt the erroneous approach as suggested by counsel for the respondent. I should add parenthetically that, speaking generally, the reasons of the Tribunal disclose a considered and comprehensive analysis of the factual material and the applicable principles. The first feature which indicates no error was that when the Tribunal was considering the persecution that may result from a particular aspect of the evidence it referred explicitly to other claims made by the applicant. For instance, the Tribunal stated in the passage quoted above in par 9 that: "in light of my findings on the applicant's claims concerning matters political, I do not consider that the Convention reason of political opinion would affect the chance that she could again be raped if she were to return to Punjab" (emphasis added). This statement suggests that the Tribunal was appraised of its duty to consider the entirety of the evidence. 14 Second, the Tribunal specifically noted, in the passage set out in par 8 above, that she regarded the police visits in 1988 and 1995 to be "isolated incidents". This suggests that ordinarily the Tribunal did have regard to the evidentiary context of the applicant's case in assessing each of the applicant's claims. 15 Third, the final quoted paragraph of the Tribunal's reasons, in par 8 above, suggests that in coming to its ultimate conclusion the Tribunal did have regard to the entirety of the evidence. The Tribunal stated that "[t]he evidence has led me to the conclusion that her fear of what might follow her return is not well-founded". The matters referred to by Counsel for the applicant are insufficient, in my opinion, to warrant a conclusion that this statement should not be treated as indicating the Tribunal considered the combined significance of all the facts (as it found them) in reaching the conclusion it did. While it may be accepted that inferred error may be manifested in the structure of a decision, there is no reason why the High Court's censure against overly critical analysis, in Wu at 291 per Kirby J, ought not apply with equal force to an error said to be manifested in the structure of a decision as it does to the words adopted by the Tribunal.

Membership of a social group 16 It was also submitted by counsel for the applicant that the Tribunal had erred in rejecting the proposition that 'women' or 'Sikh women' constituted a particular social group. The applicant referred to the comments made by the Tribunal, set out in par 9 above. In particular it was said that the statement that "women or Sikh women are far too diverse a collection of persons to be seen to be united or cognisable" indicated that the Tribunal erroneously believed that diversity amongst a group of persons disqualified it from being a Convention "social group." Counsel for the applicant noted that particular groups of women had been held to be a social group in Islam v Secretary of the Home Department [1999] 2 WLR 105, and Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529. 17 However, counsel for the Minister submitted that the Tribunal's statement does not indicate that the Tribunal believed that homogeneity was a necessary characteristic of a social group. Rather, it was suggested, the Tribunal merely looked upon the diversity of the purported group as one of the factual reasons for its conclusion that Sikh women did not constituted such a group. This approach was said to accord with the requirements, set out at 331 and 359 in Applicant A, that there be a common element that unites the members of a social group and making it cognisable. The respondent relied on the approach adopted by Weinberg J in Minister for Immigration & Multicultural Affairs v Ndege [1999] FCA 783 in which his Honour said (at par 75): "Ultimately, whether a "particular social group" exists is to be determined as a question of fact, in accordance with the limiting principles authoritatively laid down by the High Court in Applicant A." 18 I accept, as counsel for the respondent submitted, that whether a particular social group exists is a matter of fact and conclusions in other cases that a group which might appear analogous with or similar to the group in question does not dictate the conclusion that the group in question is a particular social group nor alter the position that this question is one for the Tribunal to decide. At best, other cases determining or affirming that groups such as "women in Pakistan" can be a particular social group might throw up considerations or principles that, in a given case, had not been addressed by the finder of fact and by this process, error demonstrated. 19 I also accept that the reference by the Tribunal to the "divers(ity)" of the alleged social group did not indicate that the Tribunal took the view that the existence of diversity, ipso facto, answered in the negative the question of whether the group was a particular social group for the purposes of the Convention. Rather the Tribunal was pointing to diversity as a feature of the group which, in the facts of this case, led the Tribunal to conclude that, as a matter of fact, the group in question was not a particular social group. 20 Accordingly, the application is dismissed and the applicants are to pay the respondent's costs. I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Adviser to the applicants: George Lombard Consultancy

Solicitor for the respondent: Australian Government Solicitor