Toor v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2000-08-22|Before: Mansfield J

REASONS FOR JUDGMENT 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 28 January 2000. The Tribunal affirmed a decision of a delegate of the respondent refusing to grant to the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). To be eligible for that visa the applicant had to satisfy the delegate of the respondent, and on review the Tribunal, that he met the criteria for the grant of that visa as expressed in the Act and in the Migration Regulations: s 65(1) of the Act. 2 One criterion for the grant of the visa is that the applicant be 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"): s 36(2) of the Act. In practical terms, that meant that the applicant had to fall within the definition of refugee in Article 1A(2) of the Convention, which 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it." 3 The applicant was born on 15 March 1971. He is an Indian citizen. He is a Sikh from the Punjab region. He was educated for twelve years and then undertook employment or training as a tractor mechanic, although he said he was working as a farmer between 1993 and 1997. He left India to come to Australia in January 1997, on the basis of a visa then procured and under a passport in his own name issued on 9 November 1990. 4 The applicant claimed to be a refugee because he feared persecution on the basis of imputed political opinion, or his own political opinion. Such political opinion had been imputed to him because, he claimed, his family had been associated with and supporters of the Sikh Independence Movement in the Punjab, especially from 1984 when the Golden Temple had been attacked. He claimed that he was imputed with the political opinion of being a supporter of Sikh independence, and a prominent one, because of the political activities of his older brother Baljit. He said that his brother was a prominent and active member of a Sikh militant group, probably the Babbar Khalsa. His brother had been living away from home for long periods in the years 1984 - 1989, and had then fled India and lived in Germany. He had been held and tortured by the police several times during those years. A friend of his brother had been killed by the police. He claimed that the police suspected him of knowing of the whereabouts of his brother and having been involved in helping his brother. 5 One aspect of those claims was that in October 1996 and in January 1997 he had been taken to the police station and questioned about the activities and whereabouts of his brother and other Sikh militants. He did not provide them with any information. He said that he and his father had been told that if the police could not find his brother they would kill him. That allegation was made only belatedly in the course of his evidence in support of his application. 6 The other aspect of the applicant's claim to be a refugee by reason of imputed political belief was that he and his family had from time to time been visited by other Sikh militants who were friends of his brother. In June 1996 they had had such a visit and shortly thereafter those two Sikh militants had been captured. He and his father were questioned by the police about their association with Sikh militants. He claimed that, although he had fled India in 1997, the police were still visiting his house looking for him. That was information he had obtained from his father. He had a fear that if he returned to India he would be beaten or killed by the authorities because of his perceived political beliefs. 7 The applicant also claimed to be a refugee by reason of his own political beliefs. He joined the AISSF (the Sikh Student Federation) between 1987 and 1989. He worked raising funds for the federation and assisted in the distribution of pamphlets and the like. Other friends of his who were more active in the federation had been arrested, and one was still in prison. Certain of them had been killed. He claimed to have been arrested on a number of occasions and beaten and released because of those activities. Initially he had said that that had occurred about four times up to 1989, but to the Tribunal he said it had occurred in 1989, 1995, in late 1996 and January 1997. 8 The Tribunal did not accept any of the applicant's claims. It described much of his evidence as vague or speculative, and in some cases inconsistent. It concluded that, if he had been held by the police, the fact that he was released within a short time after being questioned and that no further action was then taken by the authorities indicated that the police had no actual adverse interest in him. The Tribunal noted that the claimed arrest and release was in the context of then significant terrorist activities, and of then strong measures being taken by the security forces to counter those activities. The Tribunal found that the fact that the applicant was released, as he himself acknowledged, therefore illustrated that he was then of little interest to the authorities. 9 It regarded his evidence about his membership of the AISSF as being inconsistent, partly because of his own evidence and partly because of his inability to provide detail of that organisation. It concluded that he had never been an activist on behalf of the AISSF. It said that conclusion was supported by the fact that the applicant did not claim to have suffered adverse treatment because of his membership of that group. 10 It was only at the hearing before the Tribunal that the applicant claimed that the police threatened him that, if they could not find his brother, they would kill the applicant. The Tribunal regarded that claim as too significant to have been overlooked earlier, and to have been provoked by the delegate's rejection of the applicant's claims. It referred to other factors which also led the Tribunal not to accept that the police threatened to kill the applicant because they could not find his brother, and not to accept that he was captured by the police in January 1997. It was also of the view that it was not plausible that the police would still be looking for the applicant's brother in 1997 in the Punjab as he had fled to Germany in 1989. It regarded the applicant's evidence as to his brother's activities as "merely speculating about his brother's possible activities in Germany". If, as the applicant claimed, the authorities maintained surveillance on overseas groups then they would have known of his brother's location in Germany. It concluded:

"For the above reasons, the Tribunal concludes that the applicant has no knowledge of his brother's activities or otherwise in Germany and that the police likewise have no such knowledge. The Tribunal therefore concludes for all the above reasons that there is not a real chance that the applicant will be persecuted on the ground of imputed political opinion based on his brother's alleged activities in Germany if the applicant were to return to India now or in the foreseeable future." 11 Indeed, having regard to its views as to reliability of the applicant's evidence, the Tribunal went further to point out that there was no evidence before it which would enable it to find that the applicant's brother was a member of Babbar Khalsa or of any other separatist militant Sikh group. The evidence given by the applicant as to his brother's activities, and his arrests and mistreatment, was so vague that the Tribunal concluded that, if such incidents occurred, the brother was of no continuing adverse interest to the police at the time of his release. It pointed out that, at the time of such alleged incidents, the authorities were taking very forceful measures to eradicate militant separatism. It therefore concluded that the applicant's brother himself was of no adverse interest to the Indian authorities on the basis of his political opinion or political activities. It followed that the applicant did not face a real chance of persecution for his imputed political opinion because of any alleged political opinion or activities of his brother. 12 The Tribunal also found that the applicant did not face a real chance of persecution on the basis of imputed political opinion for helping militants with food and shelter. That was because, if the claim were valid, there was no reason why only the applicant and not his father or other members of his family would have attracted the adverse interest of the police as they too had been involved in that activity. In addition, on the one occasion when militants had been captured after staying with the family, the police apparently accepted the explanation of the applicant and his father that the two militants had forced themselves upon them. That was consistent with independent country information as to the attitude of the police in such circumstances. 13 The Tribunal also concluded that the numerous inconsistencies in the applicant's evidence, and his attempts to progressively embellish his claims, meant that he was not a credible witness. It rejected his claim, based upon information from his father, that his name was now on the register of persons to be arrested in India which had been given to the police in all states. That was an implausible claim, given his ability to procure a passport lawfully and to leave India lawfully in 1997. It was inconsistent with the Tribunal's positive finding that the applicant did not have an actual or imputed political profile. 14 The Tribunal also found that the applicant could reasonably be expected to relocate to another part of India even if he retains a subjective fear of harm in the Punjab: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442. It reached that conclusion on the basis that he did not have a profile as a Sikh activist and was of no interest to the police. There was no real obstacle in a legal sense to him relocating. It had regard to additional factors. There are Sikh communities in other parts of India where he could re-establish himself. He had demonstrated an ability to settle in a country where Punjabi is not the main language, he is fluent in Hindi spoken in significant parts of India. He had managed to obtain employment since he has been in Australia, and has shown himself to be able to adapt to a new country and to new circumstances. He also has qualifications as a tractor mechanic and resources available through his family and Sikh communities in other parts of India. No misdirection in that regard is now asserted. 15 There were two grounds upon which the applicant submitted that the Tribunal had fallen into reviewable error. The first was that the Tribunal had made its decision in circumstances where there was no evidence or other material to justify the making of the decision, in particular that the decision was based on the existence of a particular fact or facts, and those facts did not exist: s 476(1)(g) and (4)(b) of the Act. The second submission was that the Tribunal had erred in law in its consideration of the relocation principle by failing to consider properly whether, in respect of other parts of India than the Punjab, the applicant had a well-founded fear of persecution for a Convention reason. That was because, it was submitted, the Tribunal had addressed the question whether the applicant had such a well-founded fear of persecution by asking whether it was reasonable for the applicant to relocate to other parts of India. 16 In my judgment the Tribunal did not fall into the second error which is alleged. In Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1014 at [30] I said:

"The relocation principle becomes relevant where a putative refugee is found to have a well-founded fear of persecution for a Convention reason in respect of a region only of the country of nationality. It then becomes relevant to determine whether, in respect of the country of nationality as a whole, the putative refugee could and would reasonably be expected to relocate to another area of that country. If the putative refugee claims to have a well-founded fear of persecution for a Convention reason in respect of the country of nationality generally, the delegate of the respondent, and on review the Tribunal, must address that claim (unless some other relevant provision of the Act or the Migration Regulations, or of the Convention operates so as to make that inquiry unnecessary). It is only if the decision maker rejects that claim, except in respect of some particular region of the country, that the relocation principle arises. The putative refugee is entitled to have the claim to have a well-founded fear of persecution in relation to the country of nationality determined in accordance with the decisions of the High Court in Chan and Guo." 17 However, in this case, the Tribunal has addressed each of the claims of the applicant as to why he had a well-founded fear of being persecuted for a Convention reason. It concluded in respect of each of those claims that neither the applicant's brother nor the applicant had a well-founded fear of being persecuted for a Convention reason within India. It positively found that both the applicant's brother and the applicant did not have the profile or imputed political profile of a Sikh militant so as to be a person who would or might attract the attention of the authorities. That finding was not limited to the applicant's position in the Punjab, but generally within India. In my judgment, therefore, the Tribunal did not fall into the error asserted. It correctly identified the relocation principle, and for reasons which I have set out above, correctly applied it. 18 There were two findings of the Tribunal which, it was argued, gave rise to the ground of review provided by s 476(1)(g). The first "finding" was contained in the following passage:

"The Tribunal asked the applicant what he thought would happen to him if he returned to India now. The applicant responded that 'they' will catch him, beat him and might kill him because they have been looking for his brother and have not been able to find him. It was put to the applicant that there was nothing in his documents where he claimed that they would kill him. The applicants said that he had told his agent this would happen." 19 The applicant sought to contrast that description of events by the Tribunal with the information which the applicant had provided to the Tribunal and to the delegate in his letter of 15 March 1997 to the Department to the following effect:

"It is impossible to know when and where something will happen, but the mere fact that one is under suspicion may be enough for Police to take drastic action. There were many incidents in the 1980s where young men would disappear. With such a fear coming from this period you will understand why my father feels, as I do also, that it is best for me to try and find a life outside of India." 20 It was argued that the Tribunal's "finding" that there was nothing in the applicant's documents where he claimed that the authorities might kill him was a finding of a fact which did not exist, because the above passage in the applicant's letter of 15 March 1997 to the Department indicated otherwise. 21 I do not consider that that passage in the Tribunal's reasons amounts to a particular fact upon which the decision was based. It appears in that section dealing with the applicant's claims and evidence. It is simply the Tribunal recording the course of the hearing. However, later in its reasons, in that section dealing with its findings and reasons, the Tribunal said:

"The applicant claimed at the hearing that in 1996 the Police threatened that if they could not find his brother they would kill the applicant. It was put to the applicant that he had not made this claim previously. It was also put to the applicant that he had not claimed previously that he had been captured in January 1997 and questioned by the police on the whereabouts of his brother. The Tribunal finds that these claims were not made in a timely way. The Tribunal believes the claim of the alleged police threat in 1996 and the alleged capture and questioning by the police in 1997 are too significant to have been overlooked earlier and were provoked by the rejection of the applicant's claims, and the Tribunal so finds." 22 It can be seen, therefore, that the fact of those two claims (the threat that he might be killed if his brother could not be found, and the capture in January 1997) having been made other than in a timely fashion was of some significance to the Tribunal. No complaint is made about the finding that the claim of having been captured and questioned on the whereabouts of his brother in January 1997 was made belatedly. It is, however, submitted that the claim that in 1996 the police threatened that if they could not find his brother they would kill the applicant was made only belatedly was not a fact which existed. The focus was on the finding as to the time when that claim was made. The basis of the submission is that the passage set out in the letter of 15 March 1997 referred to above shows that the claim was made at that time. Consequently, it is argued, the fact that it was made belatedly does not exist. 23 I do not accept that submission. It may well be that the applicant feared that he would be mistreated and perhaps killed by police at the time he wrote his letter on 15 March 1997. It is possible to infer that from the contents of that letter. Whether that would be sufficient to establish that he said he had that fear at that time, rather than belatedly, it is not necessary to decide. That is because the gravamen of the Tribunal's finding is the incident itself in 1996 at which the applicant claimed that he had been threatened specifically by the police that if they could not find his brother they would kill him. It is the specific threat which the Tribunal found was reported belatedly, not simply the applicant's general fear of death. The Tribunal recorded the time at which that incident was first identified, namely at the time of the hearing before the Tribunal. If that is correct, the Tribunal's finding that the claim was not made in a timely way is also correct. It is certainly not a finding which is shown to be based on a fact which did not exist. I do not think that the letter of 15 March 1997 amounts to the applicant having made the claim of a specific threat to the police that they would kill him if they could not find his brother. The words of the letter do not say that. It is not the fact of fear which was significant to the Tribunal, but the fact of the threat having been made in the circumstances which the applicant described. 24 Accordingly, I am not persuaded that, in that respect, the decision of the Tribunal was based upon a particular fact which is shown not to exist. 25 The other ground identified by the applicant is based upon the following passage in the Tribunal's reasons:

"The Tribunal notes that much of the information in his statement concerning his brother's alleged activities was couched in vague or speculative terms, such as which extremist group he allegedly belonged to, his activities for the group, his movements in Pakistan (sic) such as when and how often he returned home, his activities in Germany, and whether he was in written contact with Sikh extremists in the Punjab in 1995." 26 The "statement" there referred to is the letter of 15 March 1997. The point is made that the Tribunal is attributing to the statement of the applicant matters concerning his brother's activities which the statement simply did not deal with. It is not contended that the Tribunal might have made those observations about the applicant's overall evidence, including the statement, but the focus of the Tribunal's comment is upon the statement itself (that is the written document of 15 March 1997) rather than upon other material. The applicant points to the fact that elsewhere in the Tribunal's reasons, in paragraphs immediately adjacent to the passage referred to, the Tribunal has referred separately to the original application, the statement, and the application for review, and to his oral evidence at the hearing. It appears to have treated "the statement" or "his statement" as but a part of the overall evidence and to have regarded its contents discretely. I accept that it appears to have done that. 27 The respondent submits that the gravamen of the Tribunal's finding is that the statement itself is couched in vague or speculative terms, and that the Tribunal's examples of those aspects are simply to make the point. He contends that, in that sense, the statement is correct. Alternatively, the respondent submits, that the Tribunal's observations should be read as observations about the whole of the evidence rather than the statement itself, because the reasons for the Tribunal should not be read with an eye keenly attuned to the perception of error: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 ("Wu"). Thirdly, it is submitted, if the Tribunal misidentified the source of certain of the pieces of information which it categorised as vague or speculative about the applicant's brother's activities, its focus was really to determine whether the applicant was a credible witness and the fact that the source of certain information may have been incorrectly attributed to the written statement rather than to other pieces of evidence is not a "critical" fact to that assessment of credit: see Curragh Queensland Mining Ltd v Daniels (1992) 34 FCR 212 at 220-221 ("Curragh"). 28 The letter of 15 March 1997 contained the following section: "My brother, Baljit, was five years older. … In later years, my brother was a much more active and committed supporter of the Movements associated with Sant Jarnail Singh Bhindranwale than myself. … As I noted earlier, my brother is very active in the Sikh political movements, although being some five years older than myself, there were a lot of things that he never talked to me about and I am still not certain of some of the activities that he was involved in; … All I do know is that he was a committed supporter of the Sikh Independence Movement. I think he was a member of the very militant and very committed Sikh militant force, the Babbar Khalsa, although I will ask him to confirm this when he writes from Germany. My understanding is that he is still active in the Sikh Independence Movement in Germany, and that the activities of he and his colleagues in Germany are monitored by the Indian authorities as best they can." 29 It is correct that that letter does not deal at all with the movements of the applicant's brother in India, such as when and how often he returned home and whether he was in written contact with Sikh extremists in the Punjab in 1995. It does to a degree touch upon which extremist group he allegedly belonged to, his activities for the group, and his activities in Germany. It has been shown that the fact that that letter dealt with all those topics, if that be the finding of the Tribunal, did not exist. 30 I am not persuaded that the Tribunal did attribute to the letter the examples which do not appear in its contents. In Wu, Brennan CJ, Toohey, McHugh and Gummow JJ said at 272:

"… the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed." 31 It is, in my judgment, not clear that the Tribunal was attributing to the letter the particular examples referred to in the passage relied upon by the applicant. It is also consistent with the proper recording of that passage that the Tribunal is remarking upon the absence of detailed information from the letter on the matters which it gives by way of example to show, in part, why the letter is vague and speculative about the brother's activities. Bearing in mind the way in which the reasons of an administrative decision-maker are to be approached, I am not of the view that the Tribunal should have attributed to it the reading of the passage under review for which the applicant contends. 32 In addition, in my judgment, the passage in the reasons of the Tribunal which is criticised does not demonstrate that the Tribunal based its decision on the letter having contained that content. The significance of the picture presented by the applicant to the Tribunal was (in the Tribunal's mind) the vague or speculative content of that information. It is not for the Court on a review such as the present to determine whether it was reasonable or unreasonable for the Tribunal to have regard to the vagueness or lack of knowledge of the applicant about his brother's activities as a matter relevant to his credit, although the respondent submitted that that was a relevant matter in the particular circumstances where the applicant had indicated that he would (as his letter indicates) seek further information or confirmation from his brother and he had not done so. However, in my judgment it is not shown that the letter, at least so far as it conveys information concerning the brother's alleged activities, was not couched in vague or speculative terms. In my view, it was. The examples which the Tribunal gave as to why that finding was made do include examples not drawn from the letter, although attributed to it. It is not argued that those examples may well have been drawn from the oral evidence. However, they are but examples. The fact that one or two of those examples may not have been drawn from the letter, in my judgment, does not give rise to the ground of review contended for. I do not think that the fact that those particular examples could not be drawn from the letter, as distinct from elsewhere in the evidence, is a fact which, in terms of s 476(4)(b), is a particular fact upon which the decision was based. It is not a critical fact in the way in which that term is explained in Curragh and in the comments of Mason CJ (with whom Deane J agreed) in Australian Broadcasting Tribunal v Bond (1990) 179 CLR 321 at 357-358. 33 In my judgment, the matter which was of moment to the Tribunal was that the applicant was vague or speculative about his brother's alleged activities. It is not shown that that fact did not exist. Nor is it shown that, on that topic, the letter itself is not couched in vague or speculative terms. The presence in, or absence from, the letter of information about the brother's movements in India or when and how often he returned home are not links in a chain of reasoning with no parallel links. It has not been shown that there was no foundation for the fact that the applicant was vague or speculative about his brother's activities. That fact was itself a link in the chain of reasoning leading to the rejection of the applicant's claim. But the fact that the letter did not contain all of the information attributed to it was not critical to that link in the chain of reasoning. The letter itself, in its terms, may be said to be vague and speculative on the topic of the brother's movements. That was, apparently, the tenor of the applicant's evidence as it is recorded by the Tribunal. I am not therefore persuaded that the wrongful attribution of those examples to the letter lead the Tribunal to make one decision rather than the other, or was a fact critical to its decision. 34 For those reasons, in my judgment this application should be dismissed. I certify that the preceding thirty-four (34) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Solicitors for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 65(1), 476(1)(g), 476(4)(b)

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