Anand, Surrender & Ors v The Minister for Immigration & Multicultural Affairs [1997] FCA 1104

CATCHWORDS MIGRATION - review of decision of Refugee Review Tribunal - former colonel in Indian Army - alleged fear of retribution by Muslim and Sikh terrorists - whether reference to evidence or any other material on which findings of fact were based - internal contradictions and inherent improbabilities in applicant's account - whether proper finding that fear of persecution not genuine - whether fear for a Convention reason Migration Act 1988 (Cth) s 420(2)(b) Administrative Appeals Tribunal Act 1975(Cth) s 43(1)(d) Chan Yee Kin v The Minister, (1989) 169 CLR 379 The Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 195 CLR 259 The Minister v Guo Wei Rong (1996) 40 ALD 445 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 Morato v Minister for Immigration (1992) 39 FCR 401 Surrender Anand & Ors v The Minister for Immigration and Multicultural Affairs No. TG 4 of 1997 Judge: Heerey J Date: 23 June 1997 Place: Hobart

IN THE FEDERAL COURT OF AUSTRALIA) TASMANIA DISTRICT REGISTRY ) No. TG 4 of 1997 GENERAL DIVISION ) B E T W E E N: SURENDER ANAND and OTHERS Applicant - and - THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: Heerey J DATE: 23 June 1997 PLACE: Hobart MINUTES OF ORDER 1. The application be dismissed. 2. The applicant pay the respondent's cost in the matter, including reserve costs.

IN THE FEDERAL COURT OF AUSTRALIA) TASMANIA DISTRICT REGISTRY ) No. TG 4 of 1997 GENERAL DIVISION ) B E T W E E N: SURENDER ANAND and OTHERS Applicant - and - THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: Heerey J DATE: 23 June 1997 PLACE: Hobart REASONS FOR JUDGMENT This is an application for a review of a decision of the Refugee Review Tribunal given on 5 February 1997. The applicants are citizens of India. The first applicant was born in that country on 2 August 1944, the second applicant is his wife, and the third applicant is one of their children. The applicant entered Australia on 16 April 1994 and applied for refugee status in the following month. The decision of the delegate refusing that application was made on 14 July 1996 and the applicants applied for a review of the decision by the Tribunal on 9 August 1996. There is no dispute as to the jurisdiction of the Tribunal nor of this Court. It is not necessary, therefore, to refer in any detail to the legislation. Equally, the principles to be applied are well established, particularly by the decision of the High Court in Chan Yee Kin v The Minister (1989) 169 CLR 379. The applicant is a Hindu and his claims are based on an alleged fear of retaliation by Sikh and Muslim terrorists on account of his military service in the Indian Army. He served in the Army from 1961 to November 1990. When he left he held the rank of lieutenant colonel. At the base of his claim was an asserted fear of retaliation arising out of his activities in the Army in 1984. Since much of the attack made on the Tribunal's decision turned on the form in which its reasons were expressed, it will be convenient and indeed necessary to quote a fairly substantial part of the Tribunal's reasons. The Tribunal said: The applicant fears Sikh terrorists will kill him and his family because of the actions he took during the course of his duty against Sikhs during a military operation in 1984. The applicant also fears Muslim terrorists will kill him and his family because of the actions he took during the course of his duty against Muslims in the riots in Ranchi in November 1984. In May 1984 the appellant's battalion was ordered to go from Ranchi to Jalandher in connection with "Operation Bluestar". During the initial stages of review he stated that he was ordered to flush out and apprehend Sikh terrorists. He remained in Jalandher city for about two months. At later stages of review he stated that his duties were to provide logistic support, he was not directly involved in fighting the terrorists. In November 1984, after the assassination of the Indian Prime Minister, there was mass rioting throughout India in which Sikhs were massacred by Muslims. At that time the applicant was responsible for an area in Ranchi, Bihar State, and was responsible for saving the lives and property of many Sikhs. Under orders the applicant caught and beat many Muslims and also imprisoned others. The Muslims issued threats at that time in that they "would sort him out later". The applicant did not kill or seriously injure anyone in the course of his duties in the Army. In October 1991 the applicant and his family were threatened by Muslim terrorists. These threats were issued on four or more occasions. He sent his son to Rajkot, some 1100 kilometres away, because he feared for his safety. In December 1991 the Muslim terrorists again threatened the applicant: they damaged his property and issued death threats. The applicant and his family fled to their home in Rajkot in January 1992. Although the Muslim terrorists on these occasions were armed with pistols, swords and knives, the applicant was able to push them out. In January 1993, whilst the applicant was away from his home, it was raided by Sikh terrorists as revenge for his action against them in Operation Bluestar. One of his sons was beaten and his life was threatened. The applicant sent his older son overseas to study because he feared for his safety. The applicant and his remaining family fled to Bombay and did not return to Rajkot until December 1993. On two occasions in January 1994 Sikhs again threatened the applicant. Some days later Muslim terrorists again threatened the applicant and his family: threats were again made against the applicant because of his action in Ranchi in 1984. Around the same time his father informed him that Muslims had been looking for him in Bombay at his father's home. The applicant made arrangements for his wife and younger son to go overseas to join his older son. The applicant departed India one month later. The applicant claims he and his family were unable to afford to leave India at an earlier stage because most of his money was invested. The Tribunal then made some comments on what were seen to be inconsistencies in the applicant's evidence. The Tribunal said: The applicant initially claimed that he retired from the Army. At a later stage of review, after being shown a copy of his Army records, he stated that he was dismissed from the Army albeit wrongly. The dismissal was the result of being unjustly blamed for not following correct procedures when auditing Army stores. He believes that the Army records regarding his duty in 1984 are incorrect and he was not court-martialled, and that the department should make efforts to obtain records from the divisional level. The applicant has not sought to do so himself because he knows that the Army would not make this information available to him. This record will be referred to in the findings. Letters and telephone calls from the applicant's relatives state that Muslim terrorists continue to seek out the applicant. These terrorists have destroyed some of his property and will not stop until they kill the applicant and his family. The applicant does not know if these Sikh or Muslim terrorists represent a particular organisation. The applicant did not recognise any of the Sikh or Muslim terrorists who threatened him or his family; they did not attack him at an earlier stage because he was protected whilst he was in the Army, and then it took some time to trace him after he entered civilian life. Each terrorist incident was reported by either the applicant or a member of his family to the local police. At the initial stages of review the applicant stated that the police ignored these reports. At a later stage of review the applicant stated that the police conducted investigations after each report but that these investigations were unsuccessful. He did not report these incidents beyond the local level of the police. He did not personally report the incident in 1993 which resulted in one of his sons being badly injured and issued with a death threat because he did not personally witness the accident. Terrorists acts are common in India and the police are corrupt. He did not report any of these incidents to the Army because they could not do anything to protect a civilian. Although the applicant has considerable assets in India, two poultry farms, a large house, car and jewellery, he cannot return to enjoy his former lifestyle because he fears for his life. His house is unoccupied and his farms are not being used. His sister owns a bearings business in Bombay. She now has a terminal illness. The applicant has both Sikh and Muslim friends. He was not involved in any political activities after he left the Army. The Tribunal then referred to some evidence given by the applicant's wife and son, and to written and verbal submissions he had made to the Tribunal. The Tribunal then went on to quote what was said by Kirby J in The Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 195 CLR 259 at 39, as follows: First, it is not erroneous for a decision-maker presented with a large amount of material to reach conclusions as to which of the facts, if any, had been established and which had not. An over-nice approach to the standard of proof to be applied here is not desirable, it betrays a misunderstanding of the way administrative decisions are usually made. It is more apt to a court conducting a trial than to the proper performance of the functions of an administrator, even if the delegate of the minister and even if conducting a secondary determination. It is not an error of law for a decision-maker to test the material provided by the criterion of what is objectively shown as long as in the end he or she performs the function of speculation about the "real chance" of persecution required by Chan. The Tribunal also referred to a decision of the Full Court of this Court in The Minister v Guo Wei Rong (1996) 40 ALD 445. The Tribunal then turned to an assessment of the applicant's case in these terms: The Tribunal finds the applicant's claims to be, for the most part, either implausible or lacking in credibility. The Tribunal accepts that the applicant was in the Indian Army for the period he claims and that he held the rank of lieutenant colonel. The Tribunal does not accept, however, that the applicant received death threats from Sikh or Muslim terrorists on account of his duties in the Army in 1984 or that he will in the future fear for his life because of this involvement. The evidence of the applicant has been inconsistent and seems to have been designed to embellish his overall claim for refugee status. The Tribunal need not make a finding on the circumstances of his discharge. The applicant's claim that he fears being killed by Sikh terrorists on account of his military duties in 1984 is simply implausible. Firstly, he was not directly involved with Operation Bluestar as he initially claims; secondly, it is unlikely that an officer with the rank of colonel and involved in logistic support and supply of stores to troops would also be involved in the task of apprehending and beating up suspected terrorists. The applicant was unable to identify who the Sikh terrorists were. Furthermore, it is reasonable to assume that if the applicant had been directly involved with the Sikh terrorists, they had ample time to target him successfully as they had prominent Indians with high political profiles. In any case, that the applicant or any of his family living in India were not threatened until nearly 10 years after the events of Operation Bluestar is not plausible. Similarly, that the Muslim terrorists waited until 1991 to target the applicant for revenge for his part in the Ranchi riots is not plausible; that the Muslim terrorists on those occasions, despite being armed, were fended off by the applicant is also not credible. The Tribunal also notes that the applicant was unable to identify who the Muslim terrorists were. The Tribunal went on to discuss what it described as a "further credibility problem". A Department of Foreign Affairs cable dated 7 June 1996 which was before the Tribunal provided personal information obtained from the Indian authorities about the applicant's Army record as follows: Anand stated that he retired in October 1991. The Army advised that the applicant was dismissed with effect from 15 November 1990. Further, we understand that his dismissal was as a result of a court-martial. The defence adviser's Army contact declined to reveal the circumstances of the court-martial. Further, Anand stated that as a result of his actions against Sikhs and Muslims he was placed on a hit list by some terrorist groups. However, the Army advised that it has no records regarding threats from any ethnic, political or religious groups to him. In relation to questions B and C concerning Anand personally, the Army advised that he served with 23 Infantry Division Ordnance Unit from 19 June 1983 to 15 October 1985. This period covered the time of Operation Bluestar. However, the Army said that Anand was not involved in Operation Bluestar though he may have provided indirect support. The Army advised that Anand's unit was in Ranchi during 1984 but that it was not involved in any riot control or other activity to do with civil unrest, as we had noted earlier, nor do we have other records of major riots involving Muslims in Ranchi during 1984. The Tribunal then goes on to note a record of the applicant's personal particulars provided by the Indian Army dated 23 May 1996 which state that he had: ...been dismissed from service with effect from 15 November 1990. It is also intimated that there is no record regarding threats from any ethnic, political or religious groups to the officer.The Tribunal accepts the above information as being a true record of his military duty. Despite the applicant maintaining that the wrong department of the Indian Army was contacted for verification of his records, he has not made any effort to obtain this information himself. The Tribunal is not satisfied on the evidence before it that the applicant has been truthful in his evidence as to why he left India and what he says may happen to him if he returns there. Having found that his claimed reason for departing India to be not credible, the Tribunal does not accept any of his claims which flowed from his activities there. The Tribunal does not accept that the applicant is included on a black list in India. The credibility of this claim is undermined by the length of time he took to depart after the attacks began. That the applicant was unable to raise the money is implausible given his considerable assets. Further acceptance of this evidence is largely dependent on acceptance about why he left India. The Tribunal therefore finds the applicant does not face a real chance of persecution from Sikh or Muslim terrorists. The Tribunal then went on to make a finding that, even if it were to accept his evidence as credible, his claims were not Convention related: The applicant had stated, essentially, that he carried out his orders as an Army officer and fears that harm may come to him because of his military service in particular operations that involved Sikhs and Muslims. The Tribunal found that: Any consequence that the applicant suffers because of what he has done in the past would be essentially for personal reasons and would not make him a refugee within the meaning of the Convention. The Tribunal noted that no specific Convention claims were made on behalf of the applicant's wife and son. On the review, counsel's argument was mainly directed in support of a proposition that the Tribunal had acted in contravention of section 43(1)(d) of the Administrative Appeals Tribunal Act 1975 (Cth) which requires that: Where the Tribunal makes its decision on review, the Tribunal must prepare a written statement that: ... (d) refers to the evidence or any other material on which the findings of fact were based. It was said that the Tribunal did not "identify with apparent specificity" the evidence of the applicant which it found inconsistent. The reasons of the Tribunal were said to be, on their face, not adequate. It was said that the applicant should know which of the "vast bulk of evidence" the Tribunal looked at. When asked to identify which parts of the Tribunal's reasons demonstrated this failing, counsel pointed to some six passages. I think it is fair to say that, with the assistance of counsel for the respondent, it took little time to find in the material the evidence which the Tribunal obviously had in mind. Indeed, the evidence either came from statements which the applicant himself had submitted to the Department or the Tribunal or to the transcript of the hearing before the Tribunal. There is no requirement either in law or as a matter of practice which requires the Tribunal to give page and paragraph reference to particular evidence on which it relies. Of course it is required to "refer to the evidence", but common sense must prevail Provided the Tribunal frames reasons which enable the reader of the reasons to find with reasonable facility the evidence referred to, that is sufficient. Once the passages identified by counsel were located it was clear to my mind that the most that could be said about them - and I am not, for obvious reasons, accepting that this is the case - was that they might disclose an error of fact. For example, in the passage already quoted the Tribunal contrasted what the applicant had set out at "initial stages of review" about being ordered to "flush out and apprehend Sikh terrorists" and the later stage when "he stated that his duties were to provide logistic support, he was not directly involved in fighting the terrorists." It is perfectly clear that the applicant did in fact make the first of those statements in a document that he had lodged with the Department, a signed type-written statement of some eight pages dated 20 May 1994 and headed "Brief History Colonel Surender Anand". As to the second passage of the evidence referred to, it is to be found in a statement provided on behalf of the applicant by Migrant Resource Centre Northern Tasmania (Inc) on 25 June 1996 where the applicant stated: Any operation is successful only with effective logistic support. During Op Bluestar effective logistic support at short notice was provided by me not only to 23 Inf Div but additional brigade (records of June 1984 would prove the same as do the letter forwarded vidé appendix J and J1 earlier). These stores were procured by me from as far as Delhi 500 kms through curfew-bound towns to insure that troops were fully equipped. Beside this responsibility I was also made responsible by the Div Commander for night patrolling with troops through terrorist-infested areas under curfew in Jalandher town. The Sikh terrorists were normally active at night but with our stern patrolling they could not indulge in subversive activities. Being the commander of the logistic support I had to often visit the units deployed in highly infested terrorist areas and liaise with adjoining commanders to inspect their state of equipment and ensure supply of the deficiencies. This was very effective which again was resented by the terrorists, and it can be verified from the logbook duty slips of No 1 Jonja of 1984. As to that second passage, there may be room for legitimate argument as to whether or not the applicant is saying there that he was "not directly involved in fighting the terrorists". But I do not think it could be said that the Tribunal was unreasonable in so characterising what he said. True it is, it relates to activities going beyond logistic support, but certainly the applicant is not referring to any direct combat contact with terrorists, still less killing or beating them. At most it might be some form of defensive patrolling. In any case, reading the reasons fairly and as a whole, it is quite impossible to say, as counsel contended, that the whole decision turned on a finding of inconsistency in the applicant's accounts of his involvement in Operation Bluestar, with a consequent disbelieving of everything he said. The Tribunal relied in a number of respects on what it considered the inherent implausibility of the applicant's account, for example, he and his family living in India and not being threatened until nearly 10 years after the events of Operation Bluestar. It is hardly necessary to state that any tribunal of fact is entitled to take into account the inherent probability or otherwise of evidence it is being asked to believe. This latter aspect also founded the second main ground of attack which relied on section 420(2)(b) of the Migration Act: The Tribunal in reviewing a decision must act according to substantial justice and the merits of the case. I see no failure of the Tribunal to comply with that requirement. It essentially found that it did not accept the applicant's reasons for leaving India. It gave reasons for that finding which on their face seem rational, and I do not think that the reasons given can be fairly characterised, as the applicant's counsel did, as "exceptionally cursory". Finally, in any event, the Tribunal was entitled to go on as it did and make the further finding that, even if accepted, the fear of persecution asserted by the applicant was not for a Convention reason, that is to say the applicant was not a "refugee" within the Convention definition which states: ... the term "refugee" shall apply to any person who (2) Owing to a 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. This aspect of the law has been recently considered by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331. It seems to me that the Tribunal was correct in finding that even if the applicant satisfied the "real chance" test in both its subjective and objective aspects, the persecution he feared was, in the words of the Black CJ in Morato v Minister for Immigration (1992) 39 FCR 401 at 404 persecution for what he had done rather than what he is. In other words, any harm that might come to him was by way of retribution for what he was supposed to have done in 1984 and not because of his membership of any particular social group or holding any political opinion. The application will be dismissed with costs, including reserved costs. I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of the Honourable Justice Heerey. Dated:23 June 1997 Associate Appearances Counsel for the applicant: E. Stewart Solicitor for the applicant:Raye and Partners Counsel for the respondents: C Gunst Solicitors for the respondents: Australian Government Solicitor Date of hearing: 23 June 1997