//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1999] FCA 165
Federal Court of Australia
2000-07-17
Mansfield J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 23 December 1999 affirming a decision of a delegate of the respondent not to grant to the applicant a protection visa for which he had applied under the Migration Act 1958 (Cth) ("the Act"). It is common ground that, for the applicant to be eligible to be granted that visa, he needed to be a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) ("the Convention"). In practical terms that meant that he had to satisfy the delegate and, on review the Tribunal, that he was a refugee as defined in the Convention. Article 1A(2) of the Convention relevantly defines a refugee as any person who:
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …" 2 The Tribunal recorded the applicant's claims and evidence in some detail. He is an Indian national who was born in the Punjab on 13 April 1973. He belongs to the Sikh religion. Essentially his claim was that he had a well-founded fear of being persecuted for reasons of his political opinions, namely his support for the Congress Party in India. 3 The Tribunal referred at some length to the history he provided, and to the evolution of his claims both in his original application to the delegate of the respondent and to the Tribunal. 4 The applicant completed school after twelve years. Initially he said that he worked as a farmer with his father until he came to Australia on 19 January 1997. He also said that he left India legally on a passport issued in his own name and in the normal manner. In the course of the hearing before the Tribunal, he revised those claims to some extent. He said that after leaving school, and having worked for his father for a short time, he went to Uttar Pradesh where he worked for a time in a temple doing kitchen work, and later worked in a spasmodic fashion in a restaurant in Delhi which was operated by a friend. He said that he had moved to those areas because he had a fear of returning to the Punjab, and had remained there until his departure for Australia. He also told the Tribunal that he had procured his passport as a result of paying a bribe, rather than procuring it apparently in a normal manner. The Tribunal recorded that this claim was made for the first time before it. 5 The Tribunal rejected both of those matters, namely relating to his moving from Punjab before his departure to Australia, and the circumstances in which he obtained his passport, because of the belated nature of their assertion and, to some extent, because of inconsistent information which the applicant provided with respect to them. The Tribunal positively found that the applicant left India legally on a passport legally procured in his own name and going through the normal channels. On the basis of information about the circumstances in which persons could leave India in that manner, the Tribunal was satisfied that, when he left India, the applicant had no significant profile of interest to the authorities in India. It regarded both of those matters as having been asserted by the applicant to enhance his claim to refugee status in the face of the decision of the delegate of the respondent. 6 The applicant claimed that he and his family had been active supporters of the Congress Party in their village in the Punjab, and for that reason had been ostracised from mid-1984 following the attack on the Golden Temple. His father, he said, remained a village official up to the time of the 1997 election. The applicant's claim was that he, too, was a vocal supporter of the Congress Party in village groups and, that from time to time, he and his family had been threatened, ostracised and had been abused. 7 He further claimed that, after the election in 1996 or 1997 when the Akali Dal Party came to power and Badal was made Chief Minister, he had been beaten up, his family home had been burnt and stoned, and he had been detained by the police. He alleged that the police were still searching for him, and were anxious to arrest him if he were to return to India. He claimed that he would be persecuted, were he to return to India, by arrest, imprisonment, torture and perhaps death. 8 As noted, the Tribunal found that the applicant had stayed in Punjab until he left for Australia, and that his activities in his village involved merely speaking up for the Congress Party in village discussions and in such circumstances. He was found to be a mere supporter of the Congress Party without a high profile. The Tribunal also found that, when he left India, he was not a person who had an adverse profile of interest to the authorities. 9 The Tribunal further found that, given the circumstances in Punjab, in particular since 1993, and given what it had found as to the applicant's activities, the applicant would receive support from the regional police in the Punjab if he were victimised by any illegal conduct, and that there was no evidence of police in that area not supporting opposition party supporters - that is, supporters of Congress Party in opposition to Akali Dal Party. The evidence was that such targeting by the authorities in relation to persons in Punjab as occurred was in relation to Sikh militants. The applicant did not claim that status. 10 Consequently, the Tribunal found that the applicant did not possess a high profile as a Congress Party member. It found that his fear of death at the hands of the Akali Dal was not credible. It therefore concluded that there was no real chance that he would face persecution now or in the foreseeable future if he were to return to India. In support of that conclusion the Tribunal referred at some length to independent country information concerning the circumstances in the Punjab. It noted that problems still exist there in relation, inter alia, to prominent human rights activists or to militant Sikh activists, but the applicant did not fall into those categories. It concluded:
"The aforementioned evidence of the political climate having settled in the Punjab in recent years indicates that even persons with a political profile have not been subject to serious harm from the authorities for some years. The situation regarding Sikhs and their supporters elsewhere in India has been settled for many years. While it is clear from the US Department of State Reports (above) that serious abuses of human rights continue to occur in India, in particular in Jammu, Kashmir and the north-eastern states, there is no material to indicate that a person with the profile and background of the applicant faces a well-founded fear of persecution for a Convention reason." 11 The second ground upon which the Tribunal reached its decision affirming the decision of the delegate of the respondent was that it considered that the applicant could relocate to another part of India. It addressed his claims on that topic. It found that he did not have a high profile as a political activist, being at most a political supporter of the party of his choice. It is apparent that in considering the question of relocation the Tribunal properly identified the relevant test as that expressed by Black CJ in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442 ("Randhawa"):
"In the present case the delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so." 12 Counsel for the applicant has not submitted that the Tribunal misdirected itself in that regard. 13 The applicant's submission on this application attacks only the decision of the Tribunal on the topic of relocation. He contends that the decision in that regard involved an error of law, being an error involving an incorrect interpretation of the applicable law, or an incorrect application of the law to the facts as found by the person who made the decision, contrary to s 476(1)(e) of the Act. 14 The particular error of law which, it is contended, the Tribunal committed is to have applied to the applicant an inappropriate burden of proof in relation to issues concerning his relocation, and to have failed to give to him the benefit of the doubt on that topic. Beaumont J in Randhawa discussed issues concerning proof at 451-452. It may be accepted that the Tribunal should not place upon the applicant a burden of proof with which he could not possibly cope, and in some cases it may be necessary in the light of that observation to give an applicant the benefit of the doubt. However, I do not consider that in the present circumstances the Tribunal imposed upon the applicant an onus that he could not possibly cope with. My conclusion, therefore, is similar to that which Sundberg J reached in the case of Maqsood v Minister for Immigration and Multicultural Affairs (20 May 1997, unreported). 15 The applicant contended that the Tribunal had simply recorded a number of complaints that he made about circumstances relevant to his relocation without accepting those complaints, and had in some way thereby imposed an impossible or impractical burden of proof upon him. Those complaints were that he would have no hope of obtaining a job elsewhere in India because of his lack of training and because of the numbers of unemployed persons elsewhere in India. He also claimed that there were few places where he would be welcome and claimed that his family's social and cultural values made it difficult for him to relocate. He also claimed to the Tribunal that members of the Akali Dal Party had pursued him to Uttar Pradesh and that he feared that they would be able to trace him wherever he went in India and punish or kill him. There were a number of complaints in similar general terms. 16 To some extent, the Tribunal's reasons positively reject those matters. In other respects the Tribunal has taken into account other matters which have led it to the view that it would not be unreasonable to expect the applicant to relocate to another part of India if indeed he has a subjective fear of harm if he were to return to the Punjab, in the light of the applicant's personal circumstances. 17 Part of the Tribunal's reasoning leading to its conclusion that the applicant did not have a well-founded fear of persecution was to reject the applicant's claims that he had in fact moved to Uttar Pradesh and then to Delhi to escape persecution. The Tribunal also observed that, if the Akali Dal Party or persons associated with it, were desirous of causing harm to the applicant, they had had ample opportunity to do so, whether in the Punjab or elsewhere. The factors which weighed in the Tribunal's mind were expressed in the following passage:
"There are regions in India where this party still enjoys a majority in government if the applicant wishes to re-establish himself there. There are presently 6 Indian states where Congress I is in power and several where it has maintained a strong parliamentary representation (see The Far East and Australasia 1999 - India, 30th Edition). There are Sikh communities in other parts of India, were the applicant to re-establish himself somewhere else in India rather than the Punjab. Independent country information, referred to above, states that Sikhs are well represented in India outside the Punjab and that there is no evidence of discrimination against Sikhs in employment generally. Notwithstanding the applicant's limited command of English and that his native tongues are Punjabi and Hindi, the applicant has demonstrated that he is able to settle in a country where these are not the relevant languages. He has managed to obtain employment for the time he has been in Australia and claims to now possess a driving licence. The applicant has shown himself to be able to adapt to a new country and to new circumstances. Hindi is a language widely understood in India. On his own evidence his family still owns land in the Punjab. It appears to the Tribunal that the applicant has resources to draw on, including members of his family and the Sikh communities in other parts of India. In Hehar v MIMA (unreported Federal Court Australia, Wilcox J 16 October 1997), these types of matters were confirmed as being ones which the Tribunal may consider when determining whether relocation is an option."
18 In Perampalam v Minister for Immigration & Multicultural Affairs [1999] FCA 165, Moore J as a member of the Full Court expressed the view that the application of the Randhawa test:
"… involves consideration of whether the applicant might, elsewhere in the country of nationality, be exposed to risks of the type that give rise to a well-founded fear of persecution. However, it also involves consideration of the practical difficulties an applicant may face in relocating and obtaining internal refuge." 19 In Ismail v Minister for Immigration & Multicultural Affairs [2000] FCA 194 Emmett J, on the Randhawa test, said that:
"… the practical realities facing a person who claims to be a refugee must be carefully considered …" 20 In my judgment, the Tribunal, in the passage from its reasons to which I have referred, and in the light of the findings which the Tribunal made about the applicant's circumstances, properly applied the Randhawa test. It addressed the practical circumstances in which the applicant found himself or might find himself if he were to return to the Punjab in determining whether it was reasonable for him to relocate elsewhere within India. 21 In my judgment, it has not been shown that the Tribunal's reasoning applied to the applicant an inappropriate burden of proof on those matters, or an onus of proof with which he could not cope. I am therefore not satisfied that the ground of review which has been argued has been made out. 22 In any event, as I have observed, the Tribunal also rejected the applicant's claim because, even in the Punjab, it found that there was no real chance that he would face persecution, now or in the foreseeable future, if he were to return to India. On the basis of that conclusion alone, a conclusion which is not attacked by the applicant on this application, there is a sufficient reason to reject the application. 23 In my judgment, the application should be dismissed. The applicant should pay to the respondent costs of the application to be taxed.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Solicitors for the Respondent: Australian Government Solicitor
Singh
Minister for Immigration & Multicultural Affairs ]2000] FCA 1063
(1994) 52 FCR 437