Singh v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-02-10|Before: Mansfield J

REASONS FOR JUDGMENT Introduction 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 24 May 1999 affirming a decision of a delegate of the respondent not to grant to the applicant a protection visa. 2 The applicant was born in India on 7 April 1963. He is an Indian citizen. He arrived in Australia on 13 October 1996 and on 18 October 1996 he lodged an application for a protection visa. That application was refused on 13 June 1997. 3 It is a criterion for the grant of a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act") that the respondent, and on review the Tribunal, be satisfied that the applicant is a person to whom Australia owes protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). For present purposes that means, in a practical sense, that if the applicant is to be entitled to the visa sought, he must qualify as a refugee under Article 1A(2) of the Convention. He must be a 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 …" Background and Claims 4 The Tribunal noted the applicant's claims in some detail. This description of his claims is taken from the Tribunal's reasons. The applicant was brought up in a religious Sikh family. He joined All India Sikh Student Federation ("AISSF") in 1984. He attended its meetings and rallies. 5 He worked on the family farm at Fatehbur from 1976 to 1984, and he worked at the Soharto pipe works for some years. 6 He claims that, through his involvement with the AISSF, he came to the attention of authorities, and was arrested on several occasions between the years 1992 and 1994, and his home was raided. The longest detention was for six months in 1992, when he was accused of assisting terrorists, during which time he was beaten and tortured. He was arrested after giving a speech at a rally regarding Khalistan. 7 The applicant told the Tribunal that from 1992 he had no permanent address. His wife has lived with her parents in another area since then. He said that the police, since 1992, had asked her about his whereabouts every fifteen days or so. He has been unable to return to his home since 1992 because the police were after him. Despite that, he said that he continued to address rallies and to take part in demonstrations up until the time he left India. 8 The applicant also claims that he was arrested and beaten in March 1993, when the police tried to extract information from him about activities relating to terrorists. He also said that he was again arrested and interrogated by the police in June 1994 and December 1994 after his cousin, who had links with the Khalistan Commando Force, had stayed in his home. He was again tortured and was accused of helping and harbouring terrorists. 9 He claims that if it were not for the intervention of party associates, he would have been killed whilst imprisoned. He said that he was released on each occasion after his first arrest only through the intervention of his younger brother, who was a member of the police force. 10 The applicant applied for a passport in 1993 but it was refused without explanation. He then applied in 1994, and obtained a passport, using a different name and a changed date of birth. Some ten months after getting that passport he travelled to Thailand and then to Taiwan. He was however deported from Taiwan, and returned through Thailand to India in April 1995. He did not return to Punjab, but remained in hiding for some eighteen months until he came to Australia some eighteen months later. He did not apply in Thailand to be recognised as a refugee. 11 The applicant, whilst in Australia, has continued his involvement with Sikh organisations. Amongst other things, he has attended a demonstration during which the Indian Flag has been burnt. 12 The applicant does not believe that conditions have improved in India. He believes that in Punjab police violence against Sikhs has increased and that outside of Punjab the police have carried out human rights abuses against Sikhs who have attempted to take protection in other areas. His claim to refugee status was based upon what had happened to him in 1992-1994, what he had done whilst in Australia, and because his application (if unsuccessful) would make him a rejected asylum seeker, a group which he claimed are subjected to persecution in India upon their return. Tribunal's Findings and Reasons 13 The Tribunal, having recorded the applicant's complaints and his evidence, then turned to its findings in the light of his complaints and his evidence and the evidence generally. It had difficulty accepting many of the applicant's claims. It stated that:

"The Tribunal does not accept that the applicant was arrested and detained in the manner described or that the police are currently looking for him." 14 It found those claims to have been fabricated, as he was not politically active in India, and was not harassed by the police. It found that the applicant had never been of interest to the Indian security authorities. 15 It noted inconsistencies in the applicant's application and oral testimony. With respect to his employment with Sohata cement works, in his application he stated that he left his employment with the pipe works in 1994, but when giving oral evidence he stated that he left in 1990, and at another point in the hearing that he left in 1992 and went into hiding. The Tribunal was unable to accept that the applicant was in hiding from 1992, yet appeared and addressed public meetings which were monitored by police. The applicant's explanation, namely that he only appeared publicly outside his own area where he would not be recognised by the police, was rejected as its consequence was that outside his area the applicant did not need to be in hiding. The Tribunal was also unable to accept that the police wanted to kill the applicant, as it reasoned that (on the applicant's story) the applicant had been detained by them on several occasions so there was ample opportunity for them to have done so. 16 The Tribunal also held that the applicant had fabricated the claims relating to his passport. He applied initially in his own name, although he knew the authorities were looking for him. He did not leave India for some eleven months, and during that period was arrested twice. That conduct did not show the fear which the applicant claimed. 17 The Tribunal also observed that the applicant's failure to apply for refugee status in Taiwan or in Thailand, and that he remained in India for some eighteen months from April 1995 without incident (albeit, he said he was in hiding) were not consistent with his claimed fear. It rejected his explanation for that further delay in leaving India, namely that he was waiting for the right people to be on duty at the airport, on the basis that he had a false passport in any event. Given his earlier evidence, it rejected his claim that he was fearful that his face would be recognised. 18 Having regard to information concerning the state of affairs in India and in particular Punjab, the Tribunal also rejected the applicant's claim that the police had continued regularly to visit the applicant's wife looking for him. It referred to extensive country information that difficulties in Punjab had significantly resolved from about 1994, and to the fact that the applicant has never been charged with any offence, and on his own story had done nothing to come to the attention of the authorities since then. 19 The Tribunal, for those reasons, found that the applicant was not in hiding from the police from 1992 and was not arrested and detained, as he claimed between 1992 and 1994. It did accept that the applicant was a low level supporter of the AISSF and the Sikh separatist movement. However, it found that someone in that position would not face a real chance of persecution if returned to Punjab, based on the country information about the changed conditions there. It showed that only Sikh activists are still at risk, and the applicant did not fall into that category. 20 The Tribunal also rejected the applicant's claim that he would be persecuted if he returns to India for burning the Indian flag in Australia and for his other involvement in the International Sikh Youth Federation in Australia. It is an offence in India to burn the Indian flag, but there was no evidence to show that that law would or might be applied to the applicant in a discriminatory way. It concluded that punishment for that offence does not amount to persecution within the Convention. 21 Finally, the Tribunal found that there was no evidence to support the applicant's claim that he would be persecuted by virtue of him being a rejected asylum seeker. In addition, it found that no one in India would know that his claim was rejected unless he chose to disclose that information. 22 The Tribunal also found that it would be reasonable for the applicant to relocate to another part of India away from Punjab: cf. Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 esp per Black CJ at 440-443, and per Beaumont J at 450 - 451. It is the well founded fear of persecution in India, and not just in Punjab, which gives rise to the status of refugees. The Tribunal referred to the large numbers of Sikhs living outside Punjab, and that they have settled elsewhere in India with safety, and without difficulties in language, practice of their religion, or employment discrimination. Ground of Review 23 The applicant relied upon s 476(1)(a) of the Act to make out the only ground of review which was argued. It was submitted that the procedures required by the Act to be observed in connection with the making of the decision were not observed, namely those contained in s 430(1) of the Act. Section 430(1) provides:

"Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based."

24 There have been a number of decisions of the Full Court of the Court that the failure to comply with s 430(1) of the Act does amount to a failure to observe procedures required by the Act to be observed in connection with the making of a decision under s 476(1)(a): Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24; Logenthiran v Minister for Immigration and Multicultural Affairs [1998] FCA 1691; Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182; Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811; Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 ("Addo"); Sivaram v Minister for Immigration and Multicultural Affairs [1999] FCA 1740. The respondent did not seek to argue the contrary on this application, save to point out that the respondent has sought special leave to appeal to the High Court against the decision in Minister for Immigration and Multicultural Affairs v Israelian [1999] FCA 649 on that issue. I note also that the majority judgment of Whitlam and Gyles JJ in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 reached an opposite view; R D Nicholson J in that case reached a similar result but for more confined reasons. 25 The respondent did, however, argue that in the particular circumstances the obligation imposed upon the Tribunal by s 430(1) of the Act had been complied with. 26 The applicant's claim, as ultimately expressed, was confined to the proposition that the Tribunal, in rejecting the applicant's claim that he had been arrested and tortured and beaten in 1992 and 1993, did not refer in its reasons for decision to a medical report from Dr Ian Gartley dated 11 March 1999 following an examination carried out on that day. It was submitted in evidence. That medical report was not referred to by the Tribunal in its reasons. It contains the following (after referring briefly to the applicant's history of events): "He described the incident in question and displayed to me certain scars on his body. These include: 1. Thickening and scarring of the skin over the second and third left metartarsal heads. 2. A keloid scar on the dorsum of his left foot. 3. Scarring on the right hallux with associated deformity of the nail and a fixed flexion deformity of the interphalangeal joint of the toe, consistent with an old crush injury and damage to the nail plate. 4. A laceration to the site of the left knee approximately 3 times 0.5 centimetres in size. 5. A burn on his right forearm. His explanations for injuries 1 to 3 were due to being stomped on with shoes that have nails projecting from their soles. Injury number 4 was stated to be due to being stabbed with a long wooden stake. Injury 5 was said to be caused by having been made with a burn inflicted by a cigarette lighter. All of these injuries were consistent with the mechanisms described. This man states that he is concerned that he may be subjected to further incidents of this kind should he be sent back to the Punjab. I have no reason to disbelieve his statements."

27 That medical report is evidence that the applicant has residual signs of injuries which are consistent with those injuries having been suffered, as the applicant claimed, by mistreatment and torture in 1992 and 1993. It therefore has some weight in tending to prove that the applicant was tortured or beaten as he claimed. 28 The applicant contended that the circumstances in this matter were very similar to those which existed in Kandiah v Minister for Immigration and Multicultural Affairs, Finn J, 3 September 1998, unreported ("Kandiah"). That case concerned a Sri Lankan national seeking asylum in Australia. That applicant claimed to have been mistreated by the authorities, as a result of which he was hospitalised. Letters from two doctors who, he said, treated him at the time of his hospitalisation, and which described his injuries, and said that the injuries were consistent with having been beaten as he alleged, were part of the evidence before the Tribunal. It rejected the applicant's claim that he had been beaten as he alleged. It did not refer to those medical reports. Finn J set aside the Tribunal's decision in that matter by reason of the failure to comply with s 430(1)(c) of the Act. His Honour regarded it as material questions of fact in the circumstances whether the Tribunal regarded those letters as authentic and credible, and further if it regarded those letters as authentic and credible then whether he was hospitalised as he claimed. That latter question was, on his case, a "key element" in his case: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 415. 29 I do not consider that that decision really advances the applicant's claim on this application. Unlike the facts in Kandiah, the medical report under consideration is not a contemporaneous document. It does not assert that the applicant's residual signs of injuries were caused in a particular year, or in a particular way. Dr Gartley wrote that the signs of injuries are consistent with having occurred as the applicant reported. He does not indicate that they are consistent only with incidents of the type the applicant reported, or whether they are inconsistent with more commonplace means of suffering scarring and burn marks as are now observable. The report of Dr Gartley does not carry the weight which the letters considered by Finn J in Kandiah might have been expected to carry if they were accepted as genuine and credible evidence. 30 In Re Minister for Immigration and Multicultural Affairs, ex parte Durairajasingham [2000] HCA 1 ("Durairajasingham") McHugh J refused to make orders nisi for prerogative relief against the Minister because no arguable case of jurisdictional error was made out. One ground upon which the prerogative relief was sought was that the Tribunal had erred in law in failing, contrary to s 430(1)(c) of the Act, to set out its findings on material questions of fact. On that contention, his Honour referred with approval to the observations of the Full Court of this Court in Addo in the following terms:

"Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made."

31 His Honour said that that passage correctly sets out the effect of s 430(1)(c) and (d) of the Act. He then added at par 65: "However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal."

32 It was a material fact in the applicant's claim that he had been detained and tortured in 1992, and also that he had been detained and beaten in 1993. The Tribunal expressly rejected those claims. As noted above, it gave reasons for those findings. It concluded that his claims of arrest and torture and beating were fabricated. Its reasons are largely founded upon the rejection of the applicant as a reliable witness, because of inconsistencies and implausibilities in the evidence he presented. Unlike the circumstances which obtained in Kandiah, it was not necessary for the Tribunal to have rejected the evidence in Dr Gartley's medical report to have reached those conclusions. That medical report provides some evidence in support of the applicant's claims, but it is not in terms which exclude or which tend to exclude other causes for the injuries which Dr Gartley was able to see. In other words, the Tribunal could have accepted that the applicant had the residual signs of injuries as observed by Dr Gartley, but nevertheless have rejected his claims as to the circumstances in which those injuries were incurred. There was other evidence, which the Tribunal explained in detail, which led to the Tribunal rejecting the applicant's claims in that regard. I do not, therefore, consider that Dr Gartley's medical report constituted evidence of the character to which the Tribunal was obliged to refer in setting out its reasons for its decision in accordance with s 430(1)(b) of the Act. 33 McHugh J in Durairajasingham expressly approved the decision in Addo as to the extent of the obligation imposed by s 430(1)(c) and (d) of the Act. Hely J in Direse v Minister for Immigration and Multicultural Affairs [1999] FCA 1626, and Finkelstein J in Comcare Australia v Lees (1997) 151 ALR 647 referred to earlier cases concerning the rationale of sections such as s 430(1) of the Act and s 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth). Finn J in Kandiah undertook a similar task. 34 Having regard to those purposes, and to the reasons for decision of McHugh J to which I have referred, I do not consider that the Tribunal failed to comply with s 430(1)(c) or (d) in the present circumstances. The genuineness of Dr Hartley's views was not itself a material fact, nor apparently was the reliability of his opinion. As I have concluded earlier in these reasons, his opinion was but one piece of evidence which went to the material questions in issue, namely whether the applicant was detained, tortured and mistreated in 1992 and 1993. Adopting the words of Lee J in Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 ("Ahmed"), a decision to the same effect as Addo on this issue, it was evidence

"to be assessed and weighed with other material. … but if the Tribunal did not conclude that it gave cause for some other finding, it was not required by s 430 to make specific reference to it in its written statement prepared under that section." 35 There was, as the Tribunal indicated, much other material giving rise to the Tribunal rejecting the applicant's claims. Dr Gartley's opinion was, as I have pointed out, also consistent with that conclusion. It was not in terms which made it a "key element" (a term used by Finn J in Kandiah) in the applicant's case, so as to make a finding as to its significance itself a material question of fact in the proceeding. In that circumstance, the observations of McHugh J in Durairajasingham and the decisions of the Full Court of this Court in Addo and Ahmed become applicable. In accordance with those decisions, the Tribunal did not fail to comply with s 430(1) by failing to refer in its reasons to the medical report of Dr Gartley. 36 The applicant's counsel, in the course of submissions, referred also to certain other material provided to the Tribunal touching upon the attitude of the police in Punjab to Sikhs and in particular to Sikh nationalists which was not referred to in the Tribunal's reasons. Counsel acknowledged during argument that that material did not present a significantly different picture to the country information about India to which the Tribunal referred in its reasons, so that it was no more than additional evidence consistent with the Tribunal's findings on that topic. No submission was made, ultimately, that the Tribunal had not complied with s 430(1) of the Act in not referring to that other material. 37 In my judgment, therefore, this application must be dismissed. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 10 February 2000 Counsel for the Applicant: Mr M Clisby

Solicitors for the Respondent: Australian Government Solicitor

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