Randhawa v Minister for Immigration, Local Government and Ethnic Affairs

EXTEMPORE REASONS FOR JUDGMENT WILCOX J: This is an application for review of a decision by the Refugee Review Tribunal determining that the applicants, Sukhdev Hehar, Manjit Kaur Hehar, Pawandeep Singh Hehar and Prabhdeep Singh Hehar are not refugees. The application is put on the basis that the Tribunal made an error of law in dealing with the matter. On behalf of the applicants, Mr Niall has taken me carefully through the decision of the Tribunal. He has put everything that can be said in favour of his clients' position, but I am unable to find legal error in the decision. Indeed, if I may say so, the Tribunal's decision exhibits exemplary care, fairness and legal correctness. Three matters are argued by Mr Niall. I will deal with each of them, although fairly shortly because of discussion during the course of submissions. First, Mr Niall complains that the Tribunal failed to particularise the likely acts of persecution to which the applicants would be exposed if they were returned to the region in which they lived prior to leaving India and coming to Australia, and failed to identify the likely perpetrators of persecution. Mr Niall said it was necessary for the Tribunal to specify the likely acts and perpetrators in order to determine the capacity of India to protect his clients against such persecution. I do not think this submission is well founded, at least in the circumstances of this case. The case put to the Tribunal was that the first applicant, Sukhdev Hehar, the father in the family consisting of the second applicant, his wife, and their two children, the third and fourth applicants, had been involved in the separatist Khalistan movement in Punjab. This movement was contentious and led to considerable violence in earlier years. However, the information before the Tribunal was that violence has abated considerably in recent years. The first applicant did not suggest he was a national or provincial leader of the Khalistan movement, but he said he was active in his local area. The first applicant gave evidence of persecution at the hands of the local police. He spoke of being taken into custody, more than once, when he claimed to have been subjected to violence and torture. He gave evidence of his home being raided, and books and papers disturbed and taken. The Tribunal accepted this evidence and that the first applicant and, by extension through him, the other applicants had a fear of persecution if they were returned to India and, in particular, their home town. The critical question for the Tribunal was not whether there was a fear but whether the fear was well-founded and, if so, the extent of the geographical area to which it could properly be said the well-founded fear extended. After referring to evidence about the general situation in the Punjab, the Tribunal said this about the extent of the well-founded fear: "This suggests that at the time the applicants left India, Punjab was a relatively peaceful place. It detracts from the applicants' assertion that the opposite was true. It also detracts from the applicants' claims that they were being pursued by police because of the applicant husband's activities. However, I note from the above information that certain individuals continued to be at risk of adverse attention by police, these include high profile Khalistan activists and high profile human rights workers. I do not accept that the applicant husband was a high profile activist in the State of Punjab. Although mindful of the findings I have made in relation to the applicant's credibility, I consider that it is possible that in a relatively small town such as the one the applicant comes from a person could have been well known to the police because of his activities. In this context I will give the applicant husband the benefit of the doubt. It is therefore possible that the local police were pursuing him from time to time because of his activities. Accordingly I accept that the applicant husband has a well-founded fear of persecution in his local area. It also follows from this that I am satisfied that the applicant wife and sons also have a well-founded fear of persecution in their home town. I am satisfied, therefore, that the applicants are unable to return to their home town because they face a real chance of persecution there. I am also satisfied that their fear of persecution in their minds extends to the whole state of India. However for the applicants to be entitled to a declaration of refugee status it must be demonstrated that their fear of persecution extends to the whole of India, not just Punjab." It will be seen the Tribunal member took a series of steps in this passage. First, the Tribunal gave the applicant husband and, therefore, the other applicants as well, the benefit of a doubt as to whether he would be persecuted in his home town if he returned there. I do not accept the submission that this step was impermissible because the Tribunal member was unable to identify the particular likely perpetrators of persecution, or specify the form their persecution might take. To impose that obligation upon a refugee tribunal in a foreign country would be to impose an impossible burden. As I read the reasons, the Tribunal was not really convinced there would be a significant chance of persecution, even in the applicants' home town. However, as there was some doubt about that question, the Tribunal member correctly gave the applicants the benefit of that doubt, and accepted their case insofar as it extended to there being a well-founded fear of persecution in the local area. The next logical question is: "How far does the area extend?" The applicants had said their fear extended to the whole of the Punjab. The reasons for this were not spelt out, but one can understand why the Tribunal member was apparently prepared to accept that the well-foundedness of the fear should be regarded as embracing the whole State; the State of Punjab had, in the past, proved incapable of disciplining the local police, and might fail to do so again. To take that step involves giving the applicants the benefit of a further doubt, having regard to the Tribunal's information that Punjab is now a more peaceful place than it was when the applicants left India. However, the Tribunal member properly gave the benefit of that doubt to the applicants, and then pointed out the applicants needed to demonstrate their fear extends to the whole of India, not just Punjab. It seems to me this was a correct statement of the law, provided it is appreciated the inquiry about relocation must be undertaken on a realistic basis. This leads me to Mr Niall's second point. He argued that the Tribunal, in looking at relocation, referred only to the position of other people, not the position of the applicants themselves. He said it was necessary for the Tribunal to identify what specific threat there might be to the applicants in other parts of India. I do not think this is correct. The matter of relocation was recently considered by a Full Court of this Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. The case had some factual similarities with the present case as it involved a claim for refugee status by an Indian national of Sikh origin. It seems the applicant in that case, also, had been involved in political activities in the Punjab. At 440 Black CJ referred to the terms of the Convention on the Status of Refugees and made this comment: "Although it is true that the convention definition of 'refugee' does not refer to parts or regions of the country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere in that country. The focus of the convention definition is not on the protection that the country of nationality might be able to provide in some particular region but upon the more general notion of protection by that country. If it were otherwise the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality, even though real protection could be found within those borders." [Emphasis added.] His Honour referred to authority in favour of those propositions. It is necessary to draw attention to the adjective, "real". At 442 the Chief Justice made the comment that, given the humanitarian aims of the convention, the question whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived, "was not to be approached in a narrow way". He noted the delegate in that case had asked not merely whether the appellant could relocate to another area of India, but whether he could reasonably be expected to do so. His Honour set out the reason for this additional requirement: "This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, the person's fear of persecution in relation to that country would remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered." The Tribunal member who heard the present case was aware of the statements made in Randhawa. Extracts were quoted from the judgment of Black CJ. In particular, reference was made to the need to take a realistic view as to whether relocation was possible in another part of the country. For that purpose the Tribunal member examined country reports on the relocation of Punjabi Sikhs elsewhere in India. These reports consisted of two cables from the Department of Foreign Affairs and Trade dated respectively 6 July 1992 and 31 May 1994. The first cable made the point that large numbers of Sikhs reside throughout India, not just in Punjab. The cable referred to the activities in which those Sikhs were engaged and pointed out they are involved, not only in the private sector, but in many public offices. The second cable said: "The relocation argument in relation to Sikhs in India, as in other countries, cannot have universal application. The validity of the argument turns on the profile of the individual applicant. It was a valid argument in relation to individuals who expressed generalised fears of being affected by hostilities in the Punjab, whether at the hands of government forces or militants. It was an argument which in our view could be given weight in relation to individuals whose political activities affiliation were of the low profile mass association genre." The cable went on to refer to activity in tracing, identifying and killing top militants, although the point was made this was a position taken by a former chief of police, and the Tribunal member noted this person has now been removed from office. The Tribunal offered this conclusion: "The information cited above indicates that the relocation of India for many Sikhs is a viable option. Where Sikhs are unable to obtain the protection of local authorities in Punjab it is clearly possible for the vast majority of them to do so outside Punjab. I consider that the applicants come within this group. Having regard to the fact the Tribunal had just quoted the second DFAT cable which distinguishes between low profile persons who have generalised fears and "top militants", it is evident the Tribunal put the first applicant in the former category. It is not suggested the evidence did not support such a categorisation. The other applicants had little or no profile. Their risk, at least in the local area, arose from their family association with the first applicant. This is a conclusion of fact which is directed towards the position of the applicants themselves. It is not a statement about all Sikhs. Of course, one has to reach conclusions about individuals after looking at the general picture, but this is what the Tribunal did. I see no substance in Mr Niall's second submission. Mr Niall's third proposition is that the Tribunal did not adequately address the reasonableness of the applicants relocating within India. It was said the Tribunal had to consider, "the practical realities of life", but did not do so. Once again I disagree. I accept that the matter of relocation must be addressed by reference to the particular individuals, the subject of the decision, and in a practical and commonsense way. A relocation that is available only in a theoretical or unlikely situation is not a real option. Black CJ dealt with this point. He said at 443: "If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country of nationality, it may be said that in the relevant sense the person's fear of persecution in relation to the country as a whole is well-founded." So the Tribunal had to consider whether, if the applicants were returned to India and felt unable, because of possible persecution, to return to their home region (or the Punjab generally) there was any disclosed basis for concluding it was not realistic to believe they could relocate elsewhere in India. This question has to be answered by looking at the applicants' circumstances and considering any matters that suggest relocation outside of the home area would be impracticable. In the latter respect I note that in Randhawa at 443 the Chief Justice went on: "Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. However I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision maker's task would be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision maker. If the appellant had raised other impediments to relocation the decision maker would have needed to consider these, but having regard to the issues raised by the appellant and the material that was before the decision maker on the issue of relocation, she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India." In the present case the Tribunal noted that: "The applicants have all demonstrated their ability to re-settle satisfactorily." Reference was made to the fact the two sons and the husband had all obtained employment in Australia. One of the sons had settled some distance away from the rest of the family. The relevance of these matters was not, as Mr Niall suggested, that the Tribunal fell into the error of thinking that, because they could obtain work in Australia they could necessarily obtain work in India outside the Punjab, but simply to show they had the resilience and flexibility to re-settle themselves satisfactorily in a foreign milieu. The Tribunal noted the applicants are well educated and speak, not only Punjabi, but a degree of English. The Tribunal went on to remark that in India the applicant husband had been able to establish a successful and profitable business and the applicant wife had been employed as a professional officer within the Indian public service working with children. "All of these factors indicate that the applicants have the necessary skills and resources to live successfully outside their original home base". In this passage the Tribunal was addressing the very matters that are required to be considered, namely the position of the particular applicants if they returned to their home country but lived outside their home region. As Black CJ pointed out, it was necessary also for the Tribunal to consider any specific problems about relocation that were put before it. In this respect, the only claims made emerged from the following passage in the Tribunal's reasons: "The applicant husband claimed that he would be unable to relocate to another part of India. He referred to threats which had been made against Sikhs by Hindu leaders in Delhi. He claimed that those Sikhs who lived outside the Punjab had been living there for a long time, and they have their own properties and speak the local language. If he had to move he would have to rent a house, whereas in Punjab he owns his own." Mr Niall concedes the last point is irrelevant. Obviously, if Mr Singh were to stay in Australia he would have to rent a house unless he was able to afford to purchase one. As for the other matters, it is clear the Tribunal was well aware of them. Significantly, there was no suggestion by the applicants of persecution of Sikhs outside the Punjab. All that was said was that threats had been made against Sikhs by Hindu leaders in Delhi. This was unparticularised. The Tribunal had information about bombings in Delhi in 1984, the date of the assassination by two Sikh guards of Prime Minister Indira Ghandi. The Tribunal member referred to this material. That was a long time ago; much has since happened. There was also information about bombings carried out by Sikh militants in 1995, but no reliance could be put upon this in support of a claim for persecution against a Sikh. In any event, the bombings seem to have been confined to Delhi. There was no suggestion of general persecution of Sikhs outside the Punjab in places other than Delhi. The country reports before the Tribunal suggested the opposite. I agree with the comment made by Black CJ in Randhawa that the matters the Tribunal needs to address, in considering the reasonableness of relocation, are ordinarily confined by the case put by the applicant for refugee status. It is unrealistic to expect a tribunal in Australia to consider every possible aspect of the practicality of a person relocating back in India. For example, the Tribunal can hardly be expected to determine exactly where the person will live or to find a house and job for him or her. The question is, whether there is a problem, looking at the matter realistically and sensibly, about that person living elsewhere in his or her country of nationality, other than in the area where he or she is at risk. In this case the Tribunal addressed that question. I understand the applicants wish to remain in Australia, where they have apparently settled satisfactorily. It may well be they would be worthwhile additions to the Australian population, but these are not matters for my consideration. Indeed, they were not matters for the Tribunal. The question the Tribunal had to address was whether the applicants fell within the concept of refugee as defined by the International Convention. As I say, the Tribunal addressed this matter in a full and I think exemplary manner. Findings of fact were made which are not for me to evaluate and a legal approach was taken that cannot fairly be criticised. The result must be that the application fails. The appropriate order is that the application be dismissed with costs. I certify that this and the preceding six (6) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox