Minister for Immigration and Ethnic Affairs v Wu Shan Liang

REASONS FOR JUDGMENT The Proceedings This is an application to review a decision of the Refugee Review Tribunal ("RRT") made on 23 December 1997. The RRT affirmed a decision made by the Minister's delegate, refusing the grant of a protection visa to the applicant. The applicant filed an amended application, which raised a large number of grounds on which the RRT's decision was challenged. The grounds included a claim of actual bias on the part of the RRT. Mr Khalsa, a migration agent who appeared by leave on behalf of the applicant, did not press that ground. He did, however, rely on the other grounds set out in the amended application. The Applicant's Claim The applicant was born in 1965 in Hyderabad, Andhra Pradesh (AP), India. He is a Muslim. He was married in 1987 and his wife and two daughters live in Warangal, AP. The applicant arrived in Australia on 31 August 1995. On 25 September 1995, he lodged an application for a protection visa with the Department of Immigration and Ethnic Affairs. A criterion for the grant of a protection visa is that at the time of the decision the Minister, or on review the RRT, is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees (the "Convention"): Migration Act 1958 (Cth) ("Migration Act"), s 36(2). On 6 March 1996, the Minister's delegate refused to grant a protection visa and on 10 April 1996 the applicant sought review of that decision. After a hearing at which the applicant gave evidence and was questioned by the RRT member, the RRT affirmed the delegate's decision. The applicant claimed before the RRT that he feared arrest by the Indian police because of their incorrect belief that he had been involved in a violent street demonstration in Srinigar, Kashmir, in December 1991 and in a bombing in Bombay (now Mumbai) in March 1993. He said he feared that, if arrested, he would be tortured by the police, most of whom are Hindu. He also claimed that he feared extremist Hindu groups who hate Muslims. The applicant said that he had been arrested in Srinigar in December 1991, while there on business. His business involved the manufacture of mattresses and he had secured a contract with a hospital. He chanced upon a demonstration, a scuffle broke out and people were arrested en masse, including the applicant. The applicant, who gave the police only his address in Srinigar, was questioned, but no charges were brought against him. After a short time, the applicant escaped, along with a number of other persons. He told his workers in Srinigar that he had to leave and returned to his home in Warangal. He later communicated with his workers, but they did not say anything about visits from the police. The second incident recounted by the applicant occurred in March 1993 in Bombay. He had travelled to that city with a friend in order to visit relatives. A bomb exploded near the Share Market building. The applicant and his friend ran from the area once they heard the blast. They were arrested and taken to a police station where they were interrogated and beaten. After two or three days both were released, without having to pay bribes. The police told the applicant to leave the State. They also said that if they wanted to talk to him again he would be contacted. The applicant then returned to Warangal. According to the applicant, in June or July 1995 the Warangal police came to his home on three separate occasions. On none of those occasions was the applicant at home. However, on the third occasion the police told the applicant's wife that they had an arrest warrant and that they wanted to speak to him about the Kashmir and Bombay incidents. At the hearing (but not at his earlier interview with the delegate), the applicant claimed that he went into hiding after the third visit by the police and returned home on only four or five occasions. He also said that he had been told the police had repeatedly inquired after him following his departure for Australia. The RRT's Findings The RRT set out its findings and reasons as follows: "For the purposes of this decision, I accept that the applicant's fear owes to imputed political opinion flowing from his ethnicity/religion; and that he was arrested and detained in Kashmir in 1991 and in Bombay in March 1993. However, I am not convinced that on account of both incidents, a real chance exists that he would be persecuted on return in the reasonably foreseeable future. On his own evidence, I find it implausible that the police would be pursuing him on account of his arrests in Kashmir and in Bombay. The applicant's arrest and detention in 1991 in Kashmir, and in 1993 in Bombay appear to be nothing more than part of a routine round-up of suspects for questioning. In both instances, there were no charges laid against him. I have doubts about the truthfulness of his claim that he escaped from detention in Kashmir: I find his account of the circumstances of his escape unconvincing. If anything, it raises suspicion about whether he was in fact detained. I note that his evidence indicates that 100 to 150 others were able to escape. Even if I accept that he escaped under the circumstances he has described, it could only be concluded that his detention was under low security condition. This, taken together with his evidence that he had no problems on return to Warangal until the March 1993 arrest, and that his workers in Srinigar with whom he continued to communicate had not apprised him of any visits from police, lead me to conclude that the police did not believe he had any involvement in the Kashmir protest and the resulting altercation and they had no ongoing interest in him after his claimed escape. Regarding his arrest, detention, and ill-treatment in prison in Bombay in March 1993, I find, as he has claimed, that he was released after two or three days and he returned to Warangal where he experienced no problems with the authorities until the claimed police visits in June/July 1995, more than two years after the Bombay incident. He claims that the police visited his house in June/July 1995 on three occasions but he was out of the house each time. If indeed the police had a warrant for his arrest, I find it implausible that their attempts to arrest him had been as feeble as they seem from his claims. In view of this, the fact that he was released without charges from detention in Bombay in March 1993, the lapse of time after his release without him having any problems with the police, and there being no other reason apparent from his evidence that he would be of interest to the police, I am not convinced that the authorities ever sought him on account of the March 1993 incidents leading to his arrest in Bombay. Having found that the applicant was not sought by the police in June/July 1995, it follows that I do not find credible his claims that he went into hiding after the third occasion (of the police visits) and that he received information from his wife about continuing police efforts to locate him. Regarding his claim that he was in hiding, I further note that he raised it for the first time at the hearing. Going into hiding, in my view, is a profoundly significant disruption of a person's normal affairs. I find it implausible, if he indeed went into hiding, that he had not advanced this claim at an earlier stage. I do not accept his explanation that no one had asked him about it before as I am satisfied that he had had ample opportunity to elaborate his claims in his application form and at the interview. At the interview with the delegate, the applicant claimed that the Kashmiri police may have told the Bombay police about his 1991 arrest, and that because of this, the police may have renewed their interest in him. Having found that he was arrested in Kashmir in the context of a routine round-up of suspects for questioning, that he was kept in low security detention, and that the authorities did not pursue him even as he claimed to have escaped, I do not find it credible that the Kashmir police would 'compare notes' with the Bombay police four years later and renew their efforts to pursue the applicant, especially given that they do not appear to have considered him as a serious suspect. In view of all the above, I find that he resumed his normal affairs in Warangal on return from his brief detention in Bombay and he was never sought by the authorities in Warangal. It follows that I am not satisfied that he left India out of fear of the authorities. It follows that I am not satisfied that he was a well-founded fear of persecution by the police on return on account of his experience in Kashmir and in Bombay. Regarding his claim that he is afraid of extremist Hindu groups, I find no support for it on his own evidence. There is nothing in his evidence to indicate that he had at any time ever had an encounter with Hindu extremists, and there is nothing in his evidence about any political involvement or other activity that could provide some ground for him to be targeted or threatened with harm by Hindu extremists. I accept his statement that there could be extremists in their area. However, on this basis alone, I am not satisfied that his fear is well-founded within the meaning of the Convention. I find that his fear of Hindu extremists is speculative and without any reasonable basis. In response to issues raised by the Tribunal regarding Hindu-Muslim relations in India and the potential for communal violence, the applicant said that whenever there was a festival in Hyderabad, there was a big fight between Hindus and Muslims. However, he did not elaborate on how this has affected him, if it has at all. The court has held in Periannan Murugasu v MIEA (unreported, Federal Court of Australia, Wilcox J, 28 July 1987) that the fear of being embroiled in incidental communal violence will not, without more, constitute persecution within the meaning of the Convention. What the applicant fears are occasional outbursts of violence in an otherwise harmonious environment; such outbursts are not part of a systematic course of conduct. I note his statement, made both at the interview with the delegate and at the hearing, that Hindus and Muslims in Warangal enjoy harmonious relations; and his statement at the hearing that he and his Hindu neighbours treat each other like brothers. For these reasons, I am not satisfied that he has a well-founded fear of persecution owing to the sometimes violent relations between Hindus and Muslims in India. In view of all the above, I am not satisfied that the applicant has a well-founded fear of persecution without the meaning of the Convention." Reasoning The applicant, although putting his case in a number of ways, essentially seeks to challenge the findings of fact made by the RRT. It was said, on his behalf, for example, that the RRT did not give proper consideration to the merits of the applicant's case (Migration Act, s 420 (2)(b)) and that the RRT had failed to take into account relevant considerations (but see s 476 (3)(e)), in particular what was said to be the long history of human rights abuses in India and the extent of inter-communal violence. The applicant contended that, although he bore the burden of proof of refugee status, he was to be given the benefit of any doubt on factual issues. Moreover, the RRT's decision (so it was said) was manifestly unreasonable (but see s 476(2)(b)). In Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, at 294, Kirby J referred to Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 in these terms: "In Chan, this Court relied upon findings of fact, express or implied, in the determination of the delegate. The criticism of the decision of the Full Court of the Federal Court in that case was based on the opinion in this Court that their Honours had acted on facts which were not, but could have been, 'established and stated by the delegate in reasons'. There is no suggestion in Chan that this Court intended that the evaluation of past facts (as distinct from the speculation on future possibilities) would be based otherwise than on likelihood. The process of determination involves the delegate's making findings as to primary facts, identifying the inferences which may properly be drawn from the primary facts, as so found, and then applying those facts and inferences to an assessment of the 'real chances' affecting the treatment of the applicant if he or she were to be returned to China." (Footnotes omitted.) In the present case, the RRT evaluated the past facts, in particular the accuracy of the applicant's account of events, in accordance with its assessment of the probabilities. The RRT concluded that, although the events in Kashmir and Bombay described by the applicant had taken place, it did not accept the applicant's claim that the police had manifested any ongoing interest in him after his arrest in Bombay in 1993. Similarly, the RRT did not accept that the police had sought the applicant at his home in June/July 1995, nor that the applicant had gone into hiding at about that time. It was on the basis of those facts that the RRT assessed the "real chances" of the applicant being persecuted for a Convention reason if he were to return to India. In Sivalingam v Minister for Immigration and Multicultural Affairs, (FCA/Goldberg J), unreported, 5 March 1998, Goldberg J said this (at 12): "The issue of the credibility of an applicant in a refugee case is similar to that issue in proceedings before an administrative tribunal or court of law which has to form a judgment on the truthfulness of an applicant or plaintiff's story. The Tribunal is not bound to accept uncritically and at face value a version of events given by an applicant. And a reviewing court in a refugee case is in no different position to that of an appellate court in considering appeals on issues of findings on credibility issue. I adopt with respect the following observations of Tamberlin J in Navaratne v Minister for Immigration and Multicultural Affairs (unreported, 1 August 1997): 'The credibility of an applicant is largely a matter of impression. There is no reason, in principal, why the observations of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167, at 179, as to the disadvantage of an appellate body in considering credibility findings should not apply in respect of review applications to this Court under s 476 of the Act. The oft-cited remarks of the Court as to the 'subtle influence of demeanour' are especially important in migration cases where many of an applicant's assertions must be accepted at face value in the absence of any evidence to the contrary. Inevitably, a great deal must depend on the demeanour as well as the consistency of the evidence of an applicant in testifying as to specific critical facts that are incapable of being independently verified. For these reasons it will often be difficult to persuade this Court on a review application to set aside findings by an administrative decision-maker on credibility questions." As in Sivalingam (and many other cases) it seems to me that the RRT's findings on credit and on facts were clearly open to it on the evidence. Contrary to the submissions of the applicant, the findings were not arbitrary, but were based on a careful assessment of the circumstances surrounding the applicant's claims and an evaluation of the plausibility of the applicant's account of events. It is not necessary for the decision-maker to have rebutting evidence before he or she can properly hold that a particular factual assertion by an applicant is not made out: Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 (FCA/Heerey J), at 348. The RRT could take into account such factors as the failure of the applicant to mention going into hiding at his initial interview and the apparent implausibility of the police manifesting an interest in him more than two years after an event in respect of which he was released without charge. Furthermore, the RRT's assessment of the chances of the applicant being persecuted for a Convention reason took account of his own evidence, for example, his evidence concerning the harmonious state of communal relationships in his home town. The applicant also submitted that the RRT failed to consider other information available to it or that would have been available had it made further inquiries. The applicant places in the first category the US State Department Country Report on Human Rights Practices for 1996. This report was referred to by the RRT as supporting the proposition that "while the potential for renewed Hindu-Moslem violence remains considerable, the level of tension between Hindus and Moslems has subsided since the destruction of the Babri mosque [in 1992]". There is nothing in the passages in the report referred to by the applicant which casts doubt on the finding made by the RRT which does, after all, acknowledge the considerable potential for inter-communal violence. In any event, the RRT's assessment of the risks facing the applicant from Hindu extremists or from Hindu-Moslem violence was based in large measure on his own evidence concerning the position in his home town and the absence of any involvement by him in political activities. The second aspect of this submission was that the RRT should have sought out further information on the situation in India at the date of the decision, in order to assess the degree of inter-communal tensions. Mr Khalsa tendered a number of extracts from the Hindustan Times, derived by him from the Internet. These were admitted into evidence, subject to relevance. But it is difficult to see, even if these had been before the RRT, how they could have borne on the factual issues the RRT had to determine. Some of the articles, for example, related to bombings that had occurred in States other than AP. Others described and commented on social and economic tensions in India. None is inconsistent with the findings made by the RRT. In any event, it must be remembered that the RRT is not under a general obligation to search out every source of information that might possibly shed light on the circumstances prevailing in a country of which the applicant for refugee status is a national. There are some circumstances where the RRT might be bound to make further inquiries, such as where material, to the knowledge of the decision-maker, is readily available and is centrally relevant to the decision to be made: Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 (Wilcox J), at 170; Luu v Renevier (1989) 91 ALR 39 (FCA/FC), at 49-50. But there is nothing in the present case to suggest that the RRT was bound to inquire further than it did. The applicant relied on other grounds of review specified in the Migration Act, but I do not think any of them has any substance. In particular, the RRT did not mis-state the tests for determining whether an applicant has met the definition of "refugee" in Art 1A(2) of the Convention. The RRT explained its concerns on factual matters to the applicant and gave him an opportunity to respond, thus affording him procedural fairness There was no departure from procedures the RRT was bound to follow. Conclusion The decision of the RRT should be affirmed. The applicant should pay the Minister's costs. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Sackville