Singh v Minister for Immigration & Multicultural Affairs - [1999] FCA 1126 - FCA 1998 case summary — Zoe

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Singh v Minister for Immigration & Multicultural Affairs

[1999] FCA 1126

Federal Court of Australia|1998-12-21|Before: Drummond J

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Court

Federal Court of Australia

Decision date

1998-12-21

Before

Drummond J

Source

Original judgment source is linked above.

Judgment (62 paragraphs)

[1]

1 This is an application under s 476 the Migration Act 1958 (Cth) for review of the decision of the Refugee Review Tribunal of 10 February 1999 that affirmed the decision of the delegate of the respondent not to grant the application made on 16 November 1993 by the applicant for a protection visa, which included also her husband and three daughters. All are citizens of India who arrived in Australia on 29 September 1993. They are Sikhs from the State of Punjab. They claimed refugee status on 16 November 1993. It is that claim which has given rise to the application before me. 2 A Tribunal, differently constituted from that which gave the decision now sought to be reviewed, rejected the applicants' claim on 12 February 1998. That decision was, however, set aside by consent and the application remitted to the Tribunal for re-determination. The second Tribunal, in an extremely detailed decision, rejected the claims of Mr and Mrs Singh, that each was a refugee. Because no specific Convention claims were made by or on behalf of the three children, the Tribunal rejected their claims for protection visas on the basis that they were governed by the outcome of the claims made by their parents, a conclusion not challenged in the present application. 3 The relevant legislation and the legal principles that govern whether a person is entitled to refugee status in this country that are applicable to this case are set out at pp 2 to 4 of the Tribunal's reasons. 4 Mr Singh's claim to refugee status centred on his contention that, in the period up to his departure from India, he was persecuted by the Punjab police by reason of his being an active supporter of the Sikh separatist religious leader Bhindranwale. The Tribunal, however, did not accept this. It also rejected his claim that he was one of the Sikh defenders of the Golden Temple against the Indian Army's assault on 3 June 1984. 5 However, the Tribunal did accept that Mr Singh was a deeply religious Sikh who had been arrested and detained by the Punjab police on a number of occasions between 3 June 1984 and 1993. It held that the pattern of arrest, brief detention and release which Mr Singh and his wife said he experienced in this period reflected the common practice of the Punjab police "in most of the violent decade following Operation Bluestar", ie, the assault on the Golden Temple. The Tribunal concluded:

[3]

6 The Tribunal did not expressly consider whether the victimisation which it accepted that Mr Singh did experience in the decade following 3 June 1984 at the hands of the police was sufficient to amount to persecution or whether any such persecution was for a Convention-related reason. But it appears implicit in the approach the Tribunal took to evaluating the evidence before it and the comments it did make that it did deal with the case by accepting that such was the situation: implicit in the Tribunal's findings is the conclusion that, although he did not attract detrimental police attention to himself by reason of any pro-Sikh activities of his own, Mr Singh was, like "large numbers of young Sikh men", mistreated by the police because other Sikhs were causing violence in the Punjab and he was a Sikh. That he had the misfortune to belong to that particular religious group, some members of which engaged in active confrontation with the Indian authorities, is the only reason capable of explaining his victimisation at the hands of the police which the Tribunal found that he suffered. 7 The Tribunal rejected Mr Singh's claims to refugee status essentially for two reasons. Firstly, a review of material available to the Tribunal on conditions in the Punjab since 1993 showed that attempts by the central government to control the Punjab police, ie, by suppressing the unlawful behaviour they engaged in towards Sikhs generally in the decade following the incident at the Golden Temple, has had a substantial measure of success. Secondly, Mr Singh was not a person with such a profile as a Sikh activist as to attract police attention to him in recent, more stable times. Accordingly, the Tribunal found that, at the date of its determination, the applicant had nothing to fear from the Punjab police and could not show a well-founded fear of persecution. 8 Mrs Singh claimed that, once her husband had been identified as involved in the episode at the Golden Temple, both were frequently harassed by the police, being, on a number of occasions, called into the police station, abused and beaten. She says that, on 14 August 1993, she and her husband were taken again to the police station at Batala where, after interrogation, a police officer beat her husband with a stick and then raped her in front of him. They left India and came to Australia soon after. Although it did not accept all of what she said, the Tribunal accepted that the rape occurred, adding:

[38]

31 Her Honour supported her conclusion with a reference to Paramananthan. 32 Apart from the majority's reasons in Ahmed, the line of authority commencing with Paramananthan to which I have referred speaks, in my opinion, with one voice in requiring the Tribunal to explain why it has rejected apparently probative material relevant to a material issue even though there may be sufficient or indeed even an abundance of material the other way to support the conclusion on that issue that the Tribunal, in fact, reached. Even if, by reason of the majority decision in Ahmed, it may, in theory, be open to me to decline to follow the other Full Court decisions explaining s 430, I think that I should follow such a clear approach, repeatedly stated by a number of Full Courts. Further, they, and Branson J's dissent in Ahmed, in my respectful opinion, correctly identify the role s 430 plays in the particular scheme contained in the Migration Act 1958 (Cth). 33 These authorities show that s 430, in requiring the Tribunal to set out its findings on material matters, is not directed to matters which the Tribunal considers material: it is directed instead, to matters that are objectively material to whether a person is in truth a refugee. They also show that s 430 imposes a more stringent fetter on the Tribunal's freedom of decision-making than does the existence of error of law constituted by a want of evidence to support the decision, as a ground for review. This only exposes an administrative decision to review if there is no evidence to support a critical finding: see Collins v Minister for Immigration (1981) 58 FLR 407 at 410 - 411. These authorities also show that, while it is not permissible to subject the Tribunal's reasons to over meticulous scrutiny for possible error, once an issue favouring an applicant for refugee status is identified as a material one, the Tribunal must explain why it finds against the applicant on that issue, if it is not to breach s 430. In such a case, the Tribunal's decision cannot be supported on appeal because there is material, even an abundance of material, which the Tribunal was entitled to accept and which is sufficient to justify the decision against the applicant. 34 As is apparent from the length of that section of the Tribunal's reasons headed "Claims and Evidence", the Tribunal had much information before it touching on the events of June 1984 and on conditions in the Punjab from then until the time it gave its decision. The material reviewed by the Tribunal at pp 23 to 32 of its reasons strongly indicates that from the second half of 1992 there was a rapid decline in Sikh militancy in the Punjab and a virtual return to normalcy. The material here surveyed by the Tribunal does contain occasional references to violent episodes, eg, the assassination of the Punjab Chief Minister in late August 1995 (although that is mentioned in the context of it being described as "the last major terrorist incident to have occurred in Punjab" in a paper produced in February 1997). The Tribunal noted a later bombing incident in July 1997, but observed "there is no indication that this is indicative of an upsurge in militant activity in Punjab, but rather isolated instances of terrorism". The Tribunal also referred to a statement in the February 1997 paper to the effect that, while the militants' ability to assert themselves may have been temporarily suspended, "future manifestations of Sikh militancy could not be discounted". However, the overwhelming impression of the considerable volume of material surveyed by the Tribunal in this section of its reasons is one of a return, certainly by the beginning of 1997, to a very large measure of normalcy in the Punjab, with police excesses there of the kind directed against Sikhs in the decade following the Golden Temple incident being a thing of the past. 35 In sharp contrast, a reading of the Country Research Service report of September 1998 procured by the applicants creates an impression that the perception held in recent times by people in authority in India is of a real risk of a further outbreak of Sikh militancy. It reports the official who was Director-General of Police in the Punjab through the first half of the 1990s saying, in mid 1997: "At one point … I imagined that terrorism in Punjab was over. Now I believe that there is no way we can stop terrorism from returning to Punjab". The current Director-General of Police in the Punjab is reported as stating in August 1997 that "There is definitely a concerted effort by the Punjab militants to revive terrorism in the state". The report states that: "Since 1997 there have been reports of a revival of Sikh militant planning and activity" and that information possessed by the police, albeit only in outline, identifies "the structure of a rejuvenated terrorist set up". It refers to the assassination of the Punjab Chief Minister in August 1995, only recently publicly acknowledged as the work of Sikh militants; to bomb attacks, causing many deaths, in different parts of the Punjab in April and June 1997 and on 8 and 9 July 1997, that provoked comments by the Punjab Congress President that the last blast was "concrete evidence that terrorism was once again raising its head in the State" and a reference by the leader of the Communist Party of India to "what is definitely a comeback effort by Punjab militants". The report also refers to the arrest in February 1998 of two Sikh activists implicated in planning attacks on the Prime Minister and Sonia Gandhia on their visits to the Punjab. It refers to a number of reports of militant activities through 1997/1998 reflecting "not only a rejuvenation of activity but also a new strategy", characterised by stealth, including a move towards the use of explosives rather than rifles. A statement to that effect by the Director-General of the Punjab police in early 1996 is noted. The report also refers to evidence of recently formed links between the Sikh militants and other separatist movements, including the Kashmiri Muslims and the tribal peoples in the north east of India, who are currently engaged in seriously disruptive activities, and also the emergence of links between Muslim fundamentalists and Sikh terrorists. 36 At p 32 of its reasons in the section headed "Claims and Evidence", the Tribunal referred to this report, saying:

[40]

37 The Tribunal then went on to refer to comments in the report about setbacks suffered by the Sikh militant movement since 1993 and comments about the way in which the police in the Punjab have been brought under greater control. The Tribunal, at p 37 in the section headed "Findings and Reasons", repeated what it had to say here about the Country Research Service report. 38 The report, with its theme of the risk of resurgent Sikh militancy, raises issues material to the applicants' claims to refugee status. That Mr Singh may personally be of no interest to the police and that the police may, since the early 1990s, have been brought under greater control than was the case in the years following June 1984 is no answer to the issue raised by this report of the risk of a resurgence of Sikh militancy in the Punjab. If the risk of a significant further outbreak in Sikh militancy is realised, there is the associated risk that the police will revert to their former brutal treatment of Sikhs generally in which the Tribunal found Mr Singh was caught up. 39 In view of the material concerning the risk of renewed Sikh militancy, the risk of renewed police persecution of Sikhs is one which the Tribunal needed to consider. The information in the Country Research Service report and the submission made on behalf of the applicants in reliance on that material requires that consideration. Moreover, the information before the Tribunal cannot be said to show that the risk of the police reverting to their old ways in response to a renewal of Sikh activism is only a remote or fanciful one: in this situation, the materiality of the issues raised by the report for the purposes of s 430 is clear. Even though the Tribunal found that more control had been imposed on the Punjab police in recent years by higher authorities, there is much material before the Tribunal suggesting that it is still far from a tightly disciplined force, a matter relevant to how the force is likely to respond to any further Sikh activism. Apart from the Country Research Service report of September 1998, the two most recent reports referred to by the Tribunal were, India: Information from four specialists on the Punjab, the Documentation, Information and Research Branch, Immigration and Refugee Board, Canada, 17 February 1997 and India Report on Human Rights Practices for 1997, US Department of State, 30 January 1998. The Canadian report, in the section headed "Punjab Police", contains the following:

[48]

41 Given that the Tribunal did deal, in some detail, with the Country Research Service report, can it be said that it breached its duty under s 430 to explain why it did not regard this report as showing that there exists a real risk of future police persecution of Sikhs in the Punjab? 42 It cannot be said that the Tribunal missed the point that emerges from the Country Research Service report, viz, that there is good ground for fearing a further outbreak of Sikh militancy in the Punjab: the Tribunal noted that the paper "focuses on the current state of the Sikh separatist movement and recent actions by militants" and it also recorded (without comment) the submission made on behalf of the applicants that the material before the Tribunal showed that the root causes of the problems in the Punjab remain largely unaltered and experts are concerned that peace will not last. 43 The Tribunal does not, however, explain whether it accepted the reliability of the statements made in the report about that issue, including statements the report attributes to highly-placed Punjab officials; if it did accept those statements as reliable, it gives no explanation for declining to hold that those statements raise, as a real risk, that the police may respond with renewed persecution of Sikhs. To dismiss the report, as the Tribunal did, because it does not deal in any significant way with the excesses of the Punjab police is, in my opinion, no explanation for why the Tribunal rejected the quite extensive material in the report that raises the spectre of resurgent Sikh activism there, in the reasonably foreseeable future. It is this which, if it becomes a reality, is likely to bring with it a renewal of that persecution of Sikhs engaged in by the police which the Tribunal accepted occurred in the decade following the incident at the Golden Temple and which Mr and Mrs Singh then experienced. 44 I therefore consider the Tribunal failed to comply with s 430 in this respect. Its decision rejecting the claims by the applicant, his wife and the children must therefore be set aside. 45 The Tribunal's decision is also challenged on the basis that it failed to explain, to the extent required by s 430(1), why it rejected Mrs Singh's claim that she would be persecuted by her community as a result of having been raped by the police. 46 The Tribunal rejected what it took to be the claim by both applicants on this ground. The case was argued before me, however, on the basis that the evidence only went to show that Mrs Singh was at risk of persecution in her community because of her rape by the Punjab police: this ground was put forward as one upon which only Mrs Singh could rely to challenge the Tribunal's decision rejecting her claim to refugee status. 47 I have already set out the relevant passages from the Tribunal's reasons in which it deals with the claim here made and explains why it rejects it as a ground for accepting that Mrs Singh is a refugee. Essentially, the Tribunal characterised the consequences for Mrs Singh of the rape as no more than a quite low level of disdain by her community towards her: it concluded that this "occasional gossip or unkindness from the community" which will not "affect the applicant's ability to live a normal and safe life in her community", was not sufficiently serious a disadvantage to amount to persecution. It could not therefore constitute persecution within the meaning of that term in the Convention. 48 While Mrs Singh herself was reticent in the oral evidence she gave to the Tribunal about this incident, there was a body of material before the Tribunal suggesting that the consequences for Mrs Singh, in terms of the likely community reaction to her having been raped, are likely to be much more harmful than the Tribunal found to be the position. This material comprises the following:

[61]

49 All this material suggests that the consequences of the rape, in terms of community reaction, were likely to be significantly more serious for Mrs Singh than the Tribunal found to be the case. Yet the Tribunal did not even refer to some of this evidence, eg, that of the psychologist, and did not, in any event, explain why, in the face of that evidence, it came to the quite different conclusion it did. The Tribunal therefore failed to do that which s 430(1) required it to do. 50 However, that the Tribunal's decision contains this reviewable error in relation to this claim by Mrs Singh to refugee status, does not mean that the decision must be set aside. Relief, where reviewable error has been found in a Tribunal decision under s 481 the Migration Act, is discretionary. Cf the authorities on s 16 the Administrative Decisions (Judicial Review) Act 1977 (Cth), the provision from which s 481 is copied, collected in Vol 2 of the CCH Federal Court Practice at para 23-227. 51 A deliberate decision by an applicant not to put material before an administrative tribunal on a particular relevant issue and delay in pursuing a claim for review are examples of conduct by applicants capable of providing good reason for denying administrative review, notwithstanding the fact that the applicant has been able to demonstrate reviewable error on the part of the Tribunal. Cf Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 59 ALR 51 at 59, 79 and 87 and Styles v Department of Foreign Affairs (1988) 84 ALR 408 at 433. 52 Before the Tribunal could find in her favour, it would have to be satisfied that Mrs Singh had a "well founded fear of being persecuted for reasons of … membership of a particular social group" within the meaning of that composite expression in Art 1A(2) of the Convention: per McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 256 - 257. Conduct, whether by private persons or officials, and even though it may inflict serious harm on the target, will still only amount to persecution for the purposes of this Article of the Convention if it is conduct which the State in question either encourages or is, or appears to be, powerless to prevent: Applicant A at 257 - 258 and Islam v Secretary of State for the Home Department [1999] 2 WLR 1015 at 1018, 1030. The conduct said to amount to persecution must also have been engaged in (so far as is presently relevant) for reasons of the refugee-claimant's membership of a particular social group. 53 No attempt was made, in argument before me, to demonstrate that there was material before the Tribunal sufficient to enable it to come to a finding in favour of Mrs Singh on each of these two issues. There is little evidence touching on the second, viz, whether Mrs Singh could show that, as the victim of rape, she was a member of a particular social group for the purposes of the Convention. It may be possible to establish the existence in some, even if not in all countries, of such a social group: see Applicant A at 265 - 266 and Islam, an important recent decision of the House of Lords on this aspect of the Convention. However, counsel did not attempt to make out such a case before me and I doubt very much whether there was material in the voluminous evidence before the Tribunal to support a finding by it on this particular issue in Mrs Singh's favour. 54 As I read the material before the Tribunal, there is nothing in it sufficient to support a finding that any ostracism that Mrs Singh could expect to experience within her community, otherwise capable by reason of its severity of amounting to persecution for the purposes of the Convention, is conduct in respect of which Mrs Singh would have no effective protection from the Indian State. Nor did counsel suggest any error on the part of the Tribunal in failing to make a finding in favour of Mrs Singh on this particular issue. 55 The argument that Mrs Singh was entitled to refugee status by reason of the social consequences of her rape was put unsuccessfully to each of the two Tribunals that have now dealt with the matter. Both specifically dealt with the question whether the conduct Mrs Singh fears is capable of amounting to persecution within the Convention. In neither does it appear that any attempt was made to establish, by appropriate evidence, that the community response she can expect to be confronted with amounts to such persecution by reason particularly of it being a response in respect of which the applicant cannot expect protection by the Indian State. 56 While there is no reason to conclude that Mrs Singh's case here has been deliberately run on a limited basis to buy time, an applicant in proceedings before the RRT is expected, like litigants in ordinary litigation, to raise for the Tribunal's consideration all matters relevant to their being granted the relief they seek. There should be no encouragement to applicants to string out cases before the RRT by running them on a limited basis, in the expectation that, if they can show reviewable error in a decision adverse to them, the Court will give them further opportunity to pursue their claims in another further hearing before the Tribunal. 57 The issues of whether Mrs Singh can show that the ostracism she fears is by reason of her membership of a particular social group and whether it is detrimental conduct in respect of which she cannot claim effective protection from the Indian State are essential ones to her claim to protection as a refugee. She has had opportunity in two Tribunal hearings, in both of which she was legally represented, to raise those issues. Given this and given the way she has conducted her case in this regard before both Tribunals and in this Court, I consider she is disentitled to a third Tribunal hearing, even though she has shown reviewable error on the part of the second Tribunal in the way it dealt with her claim to refugee status on the basis of the community response to the rape. 58 It is doubtful, in view of the restriction on the scope of review for error of law imposed by s 476(1)(e), that the Tribunal can be said to have made any reviewable error of law, of the kind contended, in its decision adverse to Mrs Singh. But if it did make a reviewable error by failing to deal in its reasons with the information I have referred to above as to the magnitude of the consequences for her of the rape, if she returns to her community, I would refuse to set aside the Tribunal's decision here, for the reasons I have given for refusing to set aside this part of the decision even though it is infected with error constituted by non-compliance with s 430. 59 I would therefore affirm the decision of the Tribunal dismissing Mrs Singh's claim to refugee status based upon what she fears to be her community's response to her having been raped by the Punjabi police. But I will otherwise set aside the decision of the Tribunal rejecting the applicants' claims to recognition of their being refugees. I certify that the preceding fifty nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Drummond.

Singh v Minister for Immigration & Multicultural Affairs

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