Singh v Minister for Immigration & Multicultural Affairs

Hearing before the Tribunal 4 On 15 February 2000 the applicant's solicitors made a submission to the Tribunal restating the above claims. The submission also claimed that after the applicant left India to come to Australia members of his family were tortured by the Indian authorities who wished to know the applicant's whereabouts. The solicitors submitted a copy of a memorandum from the applicant's doctor describing the injury for which he treated the applicant in 1993 after his alleged arrest and torture. The solicitors also submitted a copy of a document dated 27 December 1998 which was said to be a warrant for the applicant's arrest. 5 The warrant appears to be a photocopy of a machine-duplicated form. It is as follows (handwritten inserts in Italics): "WARRANT OF ARREST Non bailable warrants IN THE COURT OF SM S P Singh CHIEF JUDICIAL MAGISTRATE LABOUR INSPECTOR GRADE Kurukshetra Sh. Daljit Singh S/O Mahar Singh R/O ?PO Siwan P.S. Siwan Tahil & Distt Kaithal (Maryong) U/S 307 460 34 120B IPC 25-54-59 [??] FIR NO 329 … 2 Feb 1996 P.S. Siwan TO S.H.O. *Name and designation of the person who is to execute. Police Station Siwan Whereas Daljit Singh son of Mehar Singh R/O V.P.O Siwan Distt. Kaithal stand charged with the offence of 307, 460, 34 IPG I.P.G. You are hereby directed to arrest the said Daljit Singh and produce him before me on or before 10-2-99 please fall [sic] not Dated the 27/12/1998 [sgd] [LS] 1st Class Judicial Magistrate Kurukshetra" 6 The Tribunal wrote to the applicant's solicitors on 22 February 2000 requesting them to forward the original memorandum from the doctor and the original arrest warrant. On 8 March 2000 the applicant's solicitors submitted the original memorandum from the doctor and a letter dated 4 May 1999 said to be from the applicant's family solicitor in India. 7 The letter is on the letterhead of Mohinder Singh Sra B.Sc. LL.B Advocate of the Punjab and Haryana High Court. It is as follows: "Private and Confidential Mr. Daljeet Singh S/0 Mehar Singh Village Siwan Tehsil Distt. Kaithal HARYANA INDIA Dear Mr. Singh, Being your family lawyer I wish to advise that the warrants by the Chief Judicial Magistrate Kurukshetra has been issued warrant for your arrest. I have received a copy of the warrants from the Police after giving some bribe. I am devastated to see the charges against you. The Police have been looking for you everywhere. I am sending these documents to you by facsimile. If you receive them please ring your friend to confirm, as I have not your address and telephone number. The conditions in India are very chaotic and tense. Every day there are news of bomb blasts and arson. The people cannot say anything against the atrocities of Police and they are putting innocent people into jails. The army has permanent Chowki's at the main crossings of roads of every city. You know very well that the police is corrupt in itself. The terrorists are targetting the Police and army as their subjects and the Police in return just targetting the innocent people and harassing them by labelling them as terrorist. Your name is on terrorists list and the police is after you for various charges. They have been harassing your parents to know your whereabouts. Your parents were not in a position to tell them because they did not know themselves about your whereabouts. I understand that under what conditions you left India by changing your total outlook and appearance. It would be in your best interest if you remain in hide because you are charged with fake charges. If the Police catch you once you will remain in the Police custody forever. Yours Faithfully, (sgd)" 8 The hearing took place on 24 March 2000. The applicant's solicitor (counsel in the hearing before this Court) appeared on his behalf. 9 On 25 May 2000 the applicant's solicitors wrote to the Tribunal making further submissions as to, inter alia, the authenticity of the warrant and the Indian lawyer's letter. Enclosed with the letter was a copy of the form of warrant contained in the Second Schedule to the Indian Code of Criminal Procedure 1973, a copy of sections of the Code relating to the issue of warrants and copies of ss 307, 460 and 34 of the Indian Penal Code 1860. Section 307 defines the crime of attempted murder and s 460 the crime of causing death or grievous bodily harm while housebreaking. Section 34 deals with criminal acts done by persons in furtherance of a common intention.

Tribunal's decision and reasons 10 The Tribunal accepted that the applicant may have been approached by a Sikh militant group in March 1993 and that he refused to join their cause. The Tribunal was also prepared to accept that as a consequence of this meeting he was arrested the following month, taken to a police station, interrogated and beaten. However the Tribunal did not accept that the applicant suffered the severe injuries claimed. The doctor's report submitted by the applicant mentions only a fractured finger, bleeding from the gums and nails and bruises on his feet. There is no mention of a broken wrist, a fractured leg, broken knee caps or wounds on his legs. 11 The Tribunal did not accept that the police harassed the applicant constantly for a month after his release from hospital. His employment details showed that he was continuously employed for the entire period he was supposed to be in hiding and in particular that he worked as a cook in a restaurant near his home village from January 1994 to October 1995. If the police had wanted to find the applicant they could have gone to his place of work. He obtained a passport in his own name and did not obtain a visa for a further 18 months. This indicated that not only was he not in hiding but the police were not interested in him after they released him in April 1993. The applicant had testified that he had no contact with the police after May 1993. As the Tribunal had found that he did not go into hiding and was accessible to the police, it did not accept that the police threatened the applicant's family and harassed them about his whereabouts for three years until his departure for Saudi Arabia. The Tribunal did not accept that when the applicant returned to India from Saudi Arabia in September 1998 the authorities were still interested in him because of an incident which had occurred over five years previously. The Tribunal did not accept the applicant's account of his arrest, interrogation and beatings in September/October 1998. If he was not of interest to the authorities for three years after his release in April 1993 up until his departure for Saudi Arabia it was not plausible the authorities would have suddenly developed an interest in him over five years after the incident with the terrorist group occurred. 12 The Tribunal was not persuaded the documents submitted on the applicant's behalf were genuine. 13 As to the solicitor's letter, it was written in very poor English and badly typed. The Tribunal did not believe that an individual claiming to be a B.Sc, LL.B and Advocate at the Punjab and Haryana High Court would write that he bribed the police to get a document, and that the police were corrupt and committed atrocities. The Tribunal found that the document had been fabricated to provide support for the applicant's claim for refugee status. The Tribunal had earlier noted that if the letter was genuine it pre-dated the application for review. It was strange that it had not been submitted with the other documents in February 2000 to support his application for review. 14 As to the warrant the Tribunal said: "The Tribunal appreciates the efforts made by the applicant's advisor to obtain information about warrants of arrest in India. However, the Tribunal is not persuaded that the copy of the warrant produced by the applicant is genuine. It should be noted that the original document is not available for professional testing. The applicant responded to the Tribunal's request for the original document by submitting the letter from the lawyer discussed above, which stated that he had bribed the police to get the copy and the original was with the police. In any case the contents of the document alone give the Tribunal cause to doubt that it is genuine. The Tribunal raised at the hearing its concern that the warrant appeared to be issued by the Chief Judicial Magistrate, which is in accordance with the Code of Criminal Procedure, but also by a Labour Inspector, which is not in accordance with the Code. Neither the applicant nor his adviser have been able to explain why a Labour Inspector should be mentioned on the warrant. The Tribunal does not accept the adviser's explanation for the spelling mistakes in the text of the document, namely that Indian Court documents are prepared on manual typewriters as the need arises, because this document is a typed proforma with the blank spaces completed in handwriting. It is meant to be a standard warrant of arrest form, which is why it has clearly been prepared in advance and bulk, and it should therefore be more accurate than a document prepared for an individual case. Nor is the Tribunal satisfied that the copy shows a genuine Seal of the Court. The adviser [sic] has stated that mark in the middle of the Seal is the national emblem of India. While there is no doubt that is what would be on a genuine Court document, it is impossible to distinguish what is in the middle of the Seal on this document, even though the writing around the edge of the Seal is quite clear and dark. Whatever the mark is in the middle of the Seal, it doesn't approximate the national emblem of India which has three lion faces, and this gives the Tribunal further cause to doubt that the document is genuine. The Tribunal is not satisfied that the warrant of arrest is a genuine document, and therefore does not accept that it provides support for the applicant's claims." 15 The Tribunal then referred to country information which indicated the Indian authorities no longer considered the Sikh separatist movement to be a threat. It found that his fear of persecution because he was a Sikh and followed the Sikh religion was not well-founded and there was not a real chance the he would be persecuted for his religion if he returned to India now or in the foreseeable future.

Arguments on the application for review 16 In her written contentions of fact and law counsel for the applicant submitted that the Tribunal, having found that the applicant had been arrested, interrogated and beaten by the police in March 1993, should have held that the applicant no longer enjoyed the protection of the Indian government. 17 However this was a question of fact and as such a matter entirely within the province of the Tribunal. The Tribunal had to consider whether, at the time of its decision, the applicant had a well-founded fear of persecution on a Convention ground, in this case religion (and perhaps also, although this was not advanced expressly, the imputed political opinion of support for Khalistan independence). In concluding that he did not the Tribunal was entitled to take into account circumstances which pointed the other way, for example the applicant's being in regular employment in the State of Haryana during the period he alleged he was in hiding, his obtaining of the passport in his own name and country information as to current Indian government perceptions of the threat of Sikh separatism. 18 On the hearing of the application for review counsel primarily relied on the Tribunal's rejection of the warrant. In particular, she referred to the passage in the Tribunal's reasons where the point was made that the involvement in the issue of a warrant by a Labour Inspector was not in accordance with the Indian Criminal Code. Counsel tendered to the Court an Indian textbook Sarkar on Criminal Major Acts, 6th ed 1998, which is an annotated collection of Indian statutes relating to criminal law and procedure. One of these is the Code of Criminal Procedure 1973. Section 11(1) provides that in every district there shall be established as many courts of judicial magistrates of the first class and of the second class and at such places as the State government may, after consultation with the High Court, by notification specify. Under s 11(2) the presiding officers of such courts are to be appointed by the High Court. Section 11(3) states: "The High Court may, whenever it appears to be expedient or necessary, confer the powers of a Judicial Magistrate of the first class or of the second class on any member of the Judicial Service of the State, functioning as a Judge in a Civil Court." 19 It was to be inferred, counsel said, that the powers of a first class Judicial Magistrate had been conferred on a Labour Inspector who was a member of the Judicial Service of the State of Haryana. 20 As already mentioned, the Tribunal had been given copies of the relevant schedule to the Indian statute containing the form of warrant. However the terms of s 11(3) were produced for the first time in the hearing before this Court. 21 Counsel relied on the error of law ground (s 476(1)(e)) and the no evidence ground (s 476(1)(g)) which relevantly provide: "476 (1) … application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds: (a) … (b) … (c) … (d) … (e) that the decision 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, whether or not the error appears on the record of the decision; (f) … (g) that there was no evidence or other material to justify the making of the decision. (2) … (3) … (4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." 22 As to s 476(1)(e), in my opinion "error of law" refers to an error of Australian law, and in particular the Act and the terms of the terms of the Refugees Convention which become applicable by virtue of s 36. Insofar as questions of foreign law might arise in the course of the Tribunal's assessment of evidence, those are simply questions of fact: Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 6) (1996) 64 FCR 79 at 82, Evidence Act 1995 (Cth) s 174. 23 Counsel also relied on the failure to investigate, but there is no legal obligation on the Tribunal to make enquiries either under s 427(1)(d) or otherwise: Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at par 86. 24 As to s 476(1)(g), counsel contended the case fell within s 476(4)(a). However the limitation imposed by subs 4(a) necessitates a finding that the law requires "a particular matter" to be established before the impugned decision is made. The "particular matter" here is presumably the non-genuineness of the warrant. Plainly there was no requirement by law that the decision in question, that is to say the Tribunal's decision to confirm refusal of the protection visa, could be made only if the non-genuineness of the warrant were established. 25 More importantly though, subs (4) is not a ground in itself but a limitation on the ground prescribed by s 476(1)(g). As the Full Court said in Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at par 28 "… it is only if it can be shown that there was no evidence or other material to justify a decision that it is necessary to consider s 476(4). If there is before the Tribunal any evidence or material capable of supporting the particular fact on the existence of which the decision is based, the ground cannot be made out." 26 The Full Court's observation was made in a context where subs (4)(b) was relied on. In the present case, counsel relied on subs (4)(a). But the principle is the same. Section 476(1)(g) is directed to the case where there is no evidence or other material at all to justify the decision. Even if that be the case, subs (4) imposes the further requirement that the law required "a particular matter" to be established (par (a)) or that the decision was "based on" the existence of a "particular fact" which did not exist (par (b)). If, apart from any "particular matter" or "particular fact" that is raised, there is other evidence or material to justify the making of the decision the Court does not get to subs (4). 27 As in Indatissa (see par 35), there were other factors in the present case quite unconnected with the warrant (or the Indian lawyer's letter) on which it was open to the Tribunal to rely in reaching its decision. They included · a finding that the applicant was not harassed or even contacted by police after the April 1993 arrest · the applicant obtaining a passport in his own name · the applicant's remaining in India for 18 months after obtaining a passport before leaving for Saudi Arabia · rejection of the applicant's account of arrest, interrogation and beating in September/October 1998 · country information as to Sikh separatism being seen as less of a threat by Indian authorities. 28 The application will be dismissed with costs, including reserved costs. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Solicitor for the Applicant: Glade-Wright & Mahindroo

Solicitor for the Respondent: Australian Government Solicitor