Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1051

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1051

AVTAR SINGH v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 288 of 1999

HILL J 27 JULY 1999 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 288 OF 1999

BETWEEN: AVTAR SINGH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: HILL J

DATE OF ORDER: 27 JULY 1999

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application be dismissed with costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 288 OF 1999

BETWEEN: AVTAR SINGH

Applicant

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

Respondent

JUDGE: HILL J

DATE: 27 JULY 1999

PLACE: SYDNEY

EX TEMPORE REASONS FOR JUDGMENT

1 The applicant, Avtar Singh, applies to the Court for a review of a decision of the Immigration Review Tribunal affirming a decision made by a delegate of the Minister that a protection visa not be granted to him.

2 It is a criterion for the grant of a protection visa that the Minister or, on review, the Tribunal in place of the Minister, is satisfied that the applicant for the visa is a person to whom Australia has protection obligations under the 1951 United Nations Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (both compendiously referred to in these reasons as "the Convention").

3 Article 1(A)(2) of the Convention defines a refugee to be a person who: "owing to well-founded fear of being persecuted by 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." 4 The applicant is a citizen of India, emanating from the Punjab where his brothers and parents live and work. His claim to be a refugee within the meaning of the Convention was that he had a well-founded fear of being persecuted by reason of his membership of a particular social group, namely the Sikh Student Federation. In support of that claim he gave evidence, both in writing and orally, to the Tribunal. He said that he attended a college in Suntanpur, where he studied English, Punjabi education and sport. It was there, he said, that he became a member of the Sikh Student Federation. 5 In support of both the subjective and objective elements of fear of persecution, which the Convention definition requires, he relied especially on an event which he said occurred at the beginning of 1994, when he was delivering a lecture, presumably at the college at which he was studying. He said that he had been picked up with a number of other people by the police, had had his hair cut off and had been beaten up but been released after two days because of influence that his father had with the Akali Dal, a political party now in power in the Punjab. 6 He did not complain that he had been detained by the police thereafter, however he referred in his evidence to a time when he had been arrested by the police in Delhi at the end of 1994, after neighbours had complained that he and associates of his were terrorists, and he referred also to an occasion in Rajistan when he said the Punjabi police had raided his father's property, looking for the applicant and his friends. He seems not to have had any direct knowledge of this last matter, but to have been told that the police were coming to raid the property by some friends. 7 The Tribunal in its reasons expressed itself as being sceptical both that the applicant had studied at a university or had been a member of the Sikh Student Federation. The Tribunal's scepticism on the latter matter arose because it had been unable to find any reference to an organisation called the Sikh Student Federation, although an organisation called the All India Sikh Student Federation existed. The Tribunal said that it found it difficult to accept that the applicant would not know the full name of an organisation of which he said he had been a member. 8 The Tribunal then said that even if it accepted that he was a member of the All India Sikh Student Federation or similar organisation, the applicant was not an organiser, party official or high profile member. The Tribunal continued in the following passage which is relied upon by counsel for the applicant as establishing an error of law on the part of the Tribunal, justifying the setting aside of the Tribunal's decision having regard to Section 476(e) of the Migration Act 1958: "He claimed that he was arrested for two days and released after his father and the Akali Dal intervened. At the time that the applicant claims that this event occurred, the country information is that the situation had very much changed from the violent confrontations between militants and police of the late 1980s and early 1990s and that the human rights situation had dramatically improved. Even if I accept, that the applicant may have been detained and abused in some way by local police at that time, for some reason, I do not accept that an isolated incident such as this would amount to persecution. There is no sign that this was a policy at this time which was condoned by the national government. There is no sign that the applicant sought any redress against local officials, despite the fact that his father and the Akali Dal clearly had some influence in the area." 9 Without a great deal of further discussion, although the Tribunal does allude to country information, in the page or so which follows the passage complained of the Tribunal concluded: "I have considered the applicant's claims individually and in their totality, but I do not accept that the applicant faces a real chance of persecution for a Convention reason if he were to return to India now or in the foreseeable future. I therefore do not accept that the applicant has a well founded fear of persecution for a Convention reason if he were to return to India now or in the foreseeable future." 10 Counsel for the applicant submitted that in the passage earlier cited the Tribunal erred in law in applying as a test a requirement that persecution must consist of more than one incident. Alternatively, it was submitted that the Tribunal erred in failing to make factual findings concerning both the arrest of the applicant on grounds of suspected terrorism and the raid in Rajistan, to which reference has already been made. In considering these submissions I take into account the caution given in the decision of the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Lian (1996) 185 CLR 259, that the reasons of the Tribunal not be the subject of minute observation but rather that they should be given a fair reading, a beneficial construction and not "construed minutely and finely with an eye keenly attuned to the perception of error" see Wu at 271–272 quoting the Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (FC) at 287. 11 The passage complained of cannot be read in isolation. At the commencement of the Tribunal's reasons the Tribunal referred to a number of leading cases which have discussed the definition of refugee in that Convention. In the course of that discussion the Tribunal says: "Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment, amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures 'in disregard' of human dignity. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality."