Singh v Minister for Immigration & Multicultural Affairs

were in search of information concerning Mr Balbir Singh's activities, political affiliations and whereabouts. 6 Shortly after one such assault Mrs Kaur and Mr Singh were riding a motor scooter when it was struck by a jeep driven by a police officer who had been involved in one of the assaults. They say that the collision was deliberately caused by the police officer driving the jeep. Mr Singh suffered serious injury in the incident and was hospitalised. Mrs Kaur says that she also suffered injury and was hospitalised. Mrs Kaur says that she was warned not to mention the accident to authorities at the hospital. 7 In support of her claim Mrs Kaur tendered photocopies of certain hospital records purportedly from the Christian Medical College & Hospital in Ludhiana, Punjab. One document is an account rendered by the hospital that records that Mrs Kaur had been charged and had paid 513 rupees in respect of her admission to the hospital for two days, namely 30 October 1995 and 31 October 1995; the account states that she was discharged on 1 November 1995. There is an appointment card and an out patient's receipt that indicates that Mrs Kaur had also attended at the hospital on 15 or 25 October 1995 (the date is not altogether clear on the photocopied document and, in any event, the date appears to have been altered). There is a receipt dated 31 October 1995 which refers to the fact that Mrs Kaur had been prescribed certain medication. Finally, there are two documents each entitled "Request for CT Examination". One is dated 31 October 1995 and the other is undated. These documents record that a CT scan had been requested in relation to abdominal pain that was being experienced by Mrs Kaur. One request states that the "CT scan [is] to rule out ch [presumably an abbreviation for chronic] pancreatitis". 8 It is not altogether clear how these documents were to be used to support Mrs Kaur's claim because they do not make specific mention of an injury suffered in the motor scooter accident. It is common ground between the parties that no express explanation for their tender was given to the tribunal. I assume that they were put into evidence in order to show that Mrs Kaur had suffered a sufficiently serious injury in the motor scooter accident to require her admission to hospital. The following is an extract taken from the evidence of Mrs Kaur: " …one car stopped and he asked us … but he took us to the Teg Bahadur Hospital where they put medicine and there were some treatment. Then I told that there is another hospital, Dayanand Hospital which is close to our house. Dayanand Hospital is close to our relatives, … is close to the house. We asked that they take us to that hospital, the big one. The took some x-rays in that big hospital. I have eh. my wrist was broken and this is from the accident and they gave me some medicine, … arm and they have to insert some steel strapped in by the arm and there's some grafting also and took some fresh from the thigh and did some grafting on it. He was in the hospital for one month." 9 Later, the following exchange took place between the tribunal member and Mrs Kaur concerning some of the hospital records that had been produced: "Tribunal: You have submitted a medical certificate from CMC in Ludhiana. Is that where CMC Hospital was? Applicant: Yes. Tribunal: The date of the certificate is 31 October 1995 which according to Paramjit Singh's evidence is four days after the accident. The certificate refers to left lumbar pain, nausea for the past year and vomiting. It makes no mention of the wrist problem that you said you incur in the accident which in Paramjit Singh's evidence is only four days earlier. Applicant: The X-rays for my wrist was taken by Dayanand Hospital not by CMC Hospital and they were the ones who were giving me the medicine … Tribunal: Um. It would seem unusual … that a report apparently done four days after the accident that no mention at all appears to be made of that. Applicant: Because I use just take the medicine and come. Because I was scared of my life at the time … that they may not cure me. Tribunal: A fractured wrist is fairly obvious. Applicant: There were not only fracture of the bone involved but there were some muscle rapture or something like that. My wrist was not moving freely and it was bending downwards. Tribunal: … there were X-Rays taken of your broken wrist, Applicant: … X-Rays did not … but there were some other … in the X-Ray. Maybe the bone was not broken but you couldn't touch it as it was very painful. Tribunal: On one of the certificates that you have submitted from CMC there is a series of body parts listed under the heading "area of interest", Um. One of the areas ticked is prostate. Interpreter: Prostate etc … Tribunal: … dictionary? Let me put it this way. … Well one of the areas that is ticked is a bodily part for which women would not be examined because women do not have this particular gland. Applicant: because … Interpreter: I don't think she understood this question. Tribunal: What I am saying to you is that the medical certificate apparently signed by a doctor indicates that one of the areas of interest to the doctor is a body part which is not a female body part. It seems to me highly unlikely that a doctor would tick a body part as an area of interest if that body part does not belong to the is not a part of the female anatomy. Applicant: I don't understand that much but still I am finding that I have a lot of pain in my wrist. Applicant: Sometimes I have terrible pain that I can't agree with you. Tribunal: Is there anything else you want to say to me in relation to your application that you haven't already had a chance to outline?" 10 I have mentioned that Mrs Kaur also gave evidence to the tribunal in support of Mr Singh's application. In relation to that evidence, the following exchange took place between the tribunal member and Mr Singh: "Tribunal: Mr Paramjit Singh, you have heard Mr (sic) Kaur's evidence this morning bearing in mind your own application in particular, is there anything you want to say about it? Paramjit: I don't want to say much but I um I am finding whilst medical Singh that eh certificate that the doctor had ticked that body …, that could be the doctor's mistake. How would we know what he ticked on that medical certificate. Tribunal: OK." 11 Both Mrs Kaur and Mr Singh contended before the tribunal that if they were required to return to India they would continue to be pursued by the police and would be mistreated by them. As their past mistreatment and their apprehension of future mistreatment is said to be in consequence of their religion and perceived affiliations with the KLF, Mrs Kaur and Mr Singh claimed to be refugees within the meaning of the Convention. 12 In the case of Mrs Kaur the tribunal made the following finding: "In assessing all the available evidence the Tribunal finds that the applicant has concocted a story of being deliberately pursued by police in 1995. It finds that documentation submitted by her, purportedly of hospital records of her treatment after the alleged accident, is not genuine. It finds that her claim of having been beaten by police in 1995 and injured in an accident deliberately caused by police is a fabrication." 13 With regard to the position of Sikhs in the Punjab the tribunal, after referring to certain reports and accounts that described their treatment, said that: "[T]he applicant would be able to call on the protection of the State should she require it. There is no indication, in any event, from any country information available to the Tribunal that either Sikhs or former supporters of Sikh causes face a real prospect of serious harm in the prevailing political climate in India or that which is foreseeable." 14 The inevitable consequence of these findings was that the tribunal could not be satisfied that Mrs Kaur was a refugee and it affirmed the decision of the delegate not to grant her a protection visa. 15 In the case of Mr Singh the tribunal made the following findings: "In considering all the relevant material the Tribunal finds that the applicant in this case has provided false evidence concerning the alleged hospitalisation of his sister-in-law in October 1995. While accepting that the applicant in this case received treatment in hospital in October 1995 for an injury to his right arm and for diabetes, the Tribunal is not satisfied that his injuries arose out of a collision that was deliberately caused by the occupants of a police jeep who sought to harm him for any Convention reason. … In assessing all the available evidence the Tribunal finds that the applicant and his sister-in-law have concocted a story of being deliberately pursued by police in 1995. It finds the documentation submitted by the applicant's sister-in-law, purportedly of hospital records of a treatment after the alleged incident, is not genuine. In weighing all the evidence it finds that the claim by the applicant in this matter and his sister-in-law, of having been beaten by police in 1995 and injured in an accident deliberately caused by police due to their imputed political profile, is a fabrication." 16 Although it was not necessary for it to do so, the tribunal also went on the consider whether, in accordance with principles enunciated in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, it would be reasonable to expect Mr Singh to relocate to another part of India if he did in fact have a well founded fear of returning to his home area. In Randhawa the Full Court held that a person who claims to be a refugee will not be regarded as such if he is able to be protected from persecution or will not suffer persecution in some part of that person's country of nationality. As Black CJ explained in Randhawa (at 440-441): "Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country." See also J Hathaway "The Law of Refugee Status" (1991) at 133. 17 On the issue of relocation the tribunal made the following finding: "The applicant has a variety of work experience and has a long record of employment in India with a national service. In view of his age and employment record the Tribunal finds it would not be unreasonable for him to relocate to another part of India, such as New Delhi or Bombay, if he retains a fear of harm in relation to his own area. While the Tribunal agrees that the police in India have a national network there is no evidence in this case to indicate that the applicant is of interest to the authorities. Although persons who relocate may be the subject of keen interest by neighbours and others, as suggested by the applicant, there is no material to indicate that Sikhs who have relocated in India have, in doing so, been subjected to persecution." 18 In the result the tribunal found that Mr Singh was not a refugee and it affirmed the decision of the delegate not to grant him a protection visa. 19 The principal attack that is made on the findings of the tribunal in each case is that it erred in law in holding that the hospital records tendered by Mrs Kaur in her application and in the application made by Mr Singh were not genuine: that is, that they were forgeries. The finding was of essential importance to the outcome of Mrs Kaur's claim. It enabled the tribunal to reject her as a credible witness. It had a similar impact on the claim made by Mr Singh because the tribunal found that he had, in effect, conspired with his sister-in-law to provide false evidence to support his claim. 20 The basis upon which the finding of the tribunal is challenged is the contention that before making the finding it was incumbent upon the tribunal to make enquiries, for example of the hospital in India, to ascertain whether the documents were genuine or not. 21 In Minister for Immigration and Ethnic Affairs v Singh (1997) 74 FCR 553 the Full Court held that there may be circumstances in which the tribunal is obligated to make enquires before it reaches a decision on a question of fact. Singh was concerned with the authenticity of a document that purported to be an official document issued in a foreign country. The tribunal found that the document was a forgery, and this finding was challenged. In their joint judgment Black CJ, von Doussa, Sundberg and Mansfield JJ pointed to certain provisions of the Migration Act that bore upon the obligations of the tribunal, in particular, s 420(2)(b), which requires the tribunal to "act according to substantial justice and the merits of the case"; s 427(1)(d), which empowers the tribunal to require the secretary to arrange for the making of any investigation and to give to the tribunal a report of that investigation; s 425(1)(a) which imposes an obligation on the tribunal to give an applicant an opportunity to appear before it to give evidence; and s 425(1)(b) which permits the tribunal to obtain such other evidence as it considers necessary. The Court said (at 560-561) that "[t]hese provisions show that the Tribunal's role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular enquiry will no doubt be rare …" 22 In this case there is much to be said for the view that further enquiries should have been undertaken before the tribunal made its finding that the hospital records were forgeries. First, each document had been "certified" as a true copy by the applicants' solicitor. It is common ground that the tribunal did not ask to be provided with the original documents. It is by no means clear to me how a finding that the documents had been forged could be made in the absence of an examination of the original documents. Second, the tribunal relied upon certain features of the documents from which it drew the inference that the documents had been forged. It seems to me that none of those features, either alone or in combination, supported the inference. The particular matters that were relied upon were as follows. Mrs Kaur's name had been misspelt on one document and there were other "basic spelling errors". If this is a criterion for forgery, not many documents would be regarded as genuine. The tribunal pointed to the fact that Mrs Kaur claimed to have a fractured or injured wrist and the request for a CT scan only referred to her abdominal pain. As I have pointed out, the request for a CT scan was to ascertain the cause of Mrs Kaur's abdominal pain and was not directed to any other injury that she may have suffered. Accordingly, it was not appropriate for the request to detail any other injuries she may have suffered. More importantly, however, a CT scan is not a procedure that is used to investigate a fractured or potentially fractured wrist. X-rays are appropriate for that purpose. Thus, it should have been of no surprise that the request made no mention of an injury to Mrs Kaur's wrist. Then, the tribunal noted that in the request, in a section headed "area of interest", a number of body parts (fifteen in all) had been ticked. A box marked "prostate" was ticked as an "area of interest" despite the fact that Mrs Kaur is female. It is obvious that the tribunal regarded this as very suspicious. However, the reasons of the tribunal give quite a misleading picture of what is the true position with regard to this document. The heading "area of interest" is followed by a list of six specific parts of the body, namely head, neck, wall, abdomen, spine and limbs. The form requires particular areas of interest in relation to each body part to be ticked as an area to be scanned. For example in the case of the "head" there are fourteen specific areas. In the case of the abdomen there are fifteen areas. The person completing the request placed a tick for every area in the abdomen. Placing a tick alongside "prostate" (one of the areas of interest in the abdomen) in addition to placing a tick in the box for every other area of that part of the body suggests no more than that the person seeking the examination was requesting a scan of the whole of the abdominal area and was merely careless in placing a tick alongside "prostate". 23 As the contents of the documents provided no foundation whatsoever for the conclusion that they had been forged, it does appear that the tribunal should have made some enquiry before it decided that the documents had been forged. After all, a simple telephone call to the hospital (the telephone number appears in the documents) could have put the matter to rest one way or the other. 24 But it is not necessary for me to decide this case on the issue whether the tribunal was required, as a matter of law, to make some enquiries before it reached its conclusion. As I have pointed out, s 420(2)(b) of the Migration Act requires the tribunal to "act according to substantial justice and the merits of the case". To fulfil that duty, the tribunal was under an obligation to make known in plain terms to Mrs Kaur and to Mr Singh that the tribunal considered making a finding that the medical documents had been forged so as to enable them to deal with the matter. This was decided by the Full Court in Meadows v Minister for Immigration and Multicultural Affairs (unreported, 23 December 1998) a case where the tribunal held that certain letters that had been produced had been falsified without warning the applicants that such a finding might be made. 25 The tribunal gave no such warning in the present case. The only statements that were made by the tribunal member where there is a hint of concern about the validity of the documents appear in the extracts from the transcript that I have set out earlier in my reasons. However, those comments would not alert the applicants or their representatives to the possibility that any suspicion attached to the hospital records such that it might be found that they were forged. 26 It follows, in my opinion, that the tribunal has breached s 420(2)(b). Such a breach constitutes a ground of review under s 476(1)(a) which provides that one ground is "that procedures that were required by [the Migration] Act or the regulations to be observed in connection with the making of the decision were not observed". 27 It necessarily follows that Mrs Kaur is entitled to succeed in her application to review the decision of the tribunal. However, the same is not true of Mr Singh. In his case the tribunal also found that he is able to obtain protection from persecution (if he were to suffer any persecution in the Punjab) in a region of India where it is reasonable for him to go. No challenge was directed to this finding and, in any event, it seems to me to be unassailable. On that basis Mr Singh does not fit the definition of "refugee": see Syan v Refugee Review Tribunal (1995) 61 FCR 284; Aras v Minister for Immigration and Ethnic Affairs (unreported, Finkelstein J, 20 March 1998). 28 For the sake of completeness I should mention that each applicant also attacked the decisions of the tribunal on the basis that it had failed to properly apply the "real chance of persecution" test as explained by decisions of the High Court in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559. In view of the findings that I have made, strictly it is unnecessary for me to deal with this argument. However, I will indicate that my tentative view on this issue is that the ground has not been made out. The reasons given by the tribunal in each case discuss the applicable test and make reference to the leading authorities. I can discern no error in that discussion or in the application of the principles to the facts of each case. 29 It is true that the exposition of the "real chance of persecution" test by the tribunal is not original in the sense that it follows, almost precisely, a common form of reasons that has been adopted by the tribunal in many cases. That is not a necessary indication that the tribunal was unmindful of the applicable principles. But it does suggest that the tribunal's reasoning should be very carefully scrutinised to ensure that it does apply the correct test. 30 The orders that I will make are as follows. On Mrs Kaur's application the decision of the Refugee Review Tribunal will be set aside with costs and the matter remitted to it for reconsideration. Mr Singh's application will be dismissed with costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finkelstein.

Solicitor for the Respondent: Australian Government Solicitor