FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 78 KULDIP SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 64 OF 1999 MANSFIELD J 10 FEBRUARY 2000 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 64 OF 1999 BETWEEN: KULDIP SINGH Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MANSFIELD J DATE OF ORDER: 10 FEBRUARY 2000 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application is dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 64 OF 1999 BETWEEN: KULDIP SINGH Applicant AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent JUDGE: MANSFIELD J DATE: 10 FEBRUARY 2000 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 2 July 1999 affirming a decision of a delegate of the respondent given on 23 July 1997 not to grant to the applicant a protection visa. 2 The applicant is an Indian citizen. He is a Sikh. He was born on 21 August 1972. He was born and brought up in Punjab. He finished school in 1990, and then worked at farming and labouring work. His parents and his two brothers currently live in India. He arrived in Australia on 25 December 1996, travelling on a validly issued passport in his own name. On 22 January 1997 he applied for a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act"). 3 It is a criterion for the grant of a protection visa under s 36 of the Act that the respondent, or 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"). 4 If the applicant is to be entitled to the visa sought, he must qualify as a refugee under Article 1A(2) of the Refugees 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 ..." The Claims 5 The Tribunal noted the applicant's claims in some detail. This description of his claims is taken from the Tribunal's reasons. 6 The applicant claimed that he was a member of the All India Sikh Student's Federation ("AISSF"). He said that he held the position of a regional secretary of the AISSF in 1989, and actively promoted membership as well as its causes. He said that the aim of the AISSF was to demand justice for Khalistan and to fight for a separate state of Khalistan. He helped the Khalistan forces. He said he became a well known figure. Part of his work with the AISSF involved delivering food and messages to groups with similar aims. In his application for a visa he stated that he delivered firearms and ammunition. However, in his oral evidence he explained that, although he delivered boxes that could have contained such things he never knowingly delivered firearms and ammunition and did not know the content of the boxes. 7 The applicant also claimed to have been arrested and tortured on several occasions because of his association with the AISSF. In a submission to the respondent, he said that, in 1989, he was first arrested and tortured after being visited by Khalistan independence forces, but in his oral evidence he said that he was referring to members of the AISSF. He was bailed after one month, but was then frequently detained and tortured. The authorities were trying to get him to admit to other crimes. Despite that, he continued as a high profile member of the AISSF. Because the police were harassing members of his family, he went into hiding. 8 In July 1990, a prominent AISSF member was killed. The applicant said that person was killed by the police. The applicant and two others were, however, arrested and accused of his murder. He was released, after payment of a bribe. 9 In 1992, another supporter of the AISSF was killed. Again, the applicant claimed, he was a suspect in that murder. The police harassed his parents for his whereabouts. He left his local area, and went to live in Jalander, also in Punjab, where he gained employment. He left Punjab in 1993 or 1994. In 1995, whilst on the move, he asked his uncle to arrange for him to leave India as he was scared he would be tortured or killed. He endeavoured to change his appearance. 10 In 1994, he learnt that a warrant had been issued for his arrest. He did not refer to the warrant until the hearing before the Tribunal. He said that the warrant he had was an old one, and that new warrants for his arrest had been issued. 11 The applicant claimed that in the years leading up to his departure to Australia in late 1996, he lived in continual fear. He knew that the police were looking for him. He believed that, if he returned to India, he would be arrested and killed. The Tribunal's findings and reasons 12 The Tribunal, having recorded the applicant's claims and his evidence, turned to its findings in light of that material and the evidence generally. The Tribunal found the applicant to be an unreliable witness and found much of his evidence to be contradictory or implausible. It explained those contradictions and implausibilities. 13 The Tribunal found that the evidence as to his position and participation with the AISSF was unreliable. It found that he knew very little about typical AISSF activities and that contradictory evidence concerning KCF and whether he moved arms and ammunition, lessened the likelihood that he was an active member of the AISSF. The Tribunal found the applicant's evidence concerning his arrest in 1989 to be vague and it found that he appeared to know little about the procedures that led to his release. The Tribunal also rejected the applicant's claim that he had difficulties with the police and that a warrant was issued for his arrest because he was associated with the AISSF. The Tribunal found, relying on information concerning the state of affairs in India, that the applicant would not have been able to leave the country in the way he described if a warrant had been extant for his arrest. 14 The Tribunal found the applicant's evidence regarding the murder of two members of the AISSF in his village to be implausible. It found it illogical that the applicant would be accused of killing members of his own organisation. The applicant's account was also flawed in that he gave evidence on one occasion that one of those persons was killed by the police because he was a member of the AISSF, and on another occasion he gave evidence that the police did not know that that person was a member of the ASSIF. 15 The Tribunal also found it unlikely that the applicant would continue to make speeches and participate in demonstrations whilst he was in hiding, and whilst he held the belief that the police had a warrant issued for his arrest. 16 In conclusion the Tribunal referred to information concerning the state of affairs in India that suggested that some people remained at risk in Punjab. However, based on its findings that the applicant did not hold a high level position in the AISSF, it found that the applicant did not fall into any of those categories. It found that he was an ordinary Sikh who would not be targeted by the police. It found that: "[t]here is no real chance that he will be persecuted in the reasonably foreseeable future on his return to India and therefore his fear of persecution is not well-founded." 17 As the one ground of review argued on this application concerned the existence of arrest warrants for the applicant, it is convenient to record the Tribunal's findings on that topic. It said: "The Tribunal does not accept that the applicant was arrested and detained in the manner described, that there are warrants currently issued for his arrest or that the police are currently looking for him." And later in its reasons, it said: "The Tribunal does not accept that there were warrants out for the applicant's arrest." The ground of review 18 The applicant relied upon ss 476(1)(g) as explained and qualified by s 476(4)(b) of the Act to make out the ground of review. That is, he sought to establish that there was no evidence or other material to justify the making of the decision, on the basis that the Tribunal made its decision on the existence of a particular fact and that fact did not exist. 19 The particular fact upon which the decision was said to be based, and which did not exist, was that there were no arrest warrants issued for the arrest of the applicant. It was argued that the Tribunal, in the two passages quoted in par 17 above, had not found that the warrant for the arrest of the applicant which was in evidence was not genuine. The next step in the argument was that, because there was a warrant for the arrest of the applicant in evidence, the particular fact that the Tribunal did not accept (namely that there were no arrest warrants currently issued for the arrest of the applicant) did not exist. 20 The unspoken premise of the argument is that the arrest warrant which was in evidence was found by, or accepted by, the Tribunal as genuine. No other evidence was relied upon to establish that the particular fact identified did not exist. 21 The documentary evidence comprised only one arrest warrant. The Tribunal refers to warrants, but I was told in submissions that that was because the applicant had asserted fresh warrants had also been issued for his arrest. He told the Tribunal he would produce them to the Tribunal, but did not do so. 22 The warrant in evidence is dated 8 November 1995. It refers to an "F.I.R." of 3 September 1994. Counsel indicated, as the Tribunal clearly understood, that "F.I.R." is a reference to First Information Report, that is the first occasion of the laying of the charge. That occurred in Punjab in September 1994. 23 The Tribunal had raised the issue as to the genuineness of the warrant with the applicant in the course of his evidence. It had been sent to the Tribunal in October 1997. It had not been referred to by the applicant in his initial application for a visa, nor in his detailed statement to the respondent; nor had it been provided to the respondent before the delegate made his decision. The Tribunal noted the applicant's evidence as follows: "The applicant's family was aware that a warrant had been issued for his arrest in 1994. They sent it to him in 1994. The applicant was asked why he never mentioned the warrant in his initial application nor in his detailed statement to the department. The applicant said he received them in Feb-March 1997 and sent then [sic] in as soon as he received them. It was put that his statement was received by the department in June 1997. He said he would have sent it. The applicant was aware of the warrants before he left India but he did not know what documents he had to submit with his refugee application and he is not educated. He said the warrant the Tribunal has is an old one. He has new ones which were issued in 1998 that he will forward to the Tribunal. It was noted by the Tribunal that the warrant was based on an FIR in 1994 relating to an incident in the Punjab whereas the applicant said he was not in the Punjab in 1993-4. The applicant responded that he would sometimes secretly return to visit his family." 24 The Tribunal's reasons indicate that it did not accept that evidence. The finding as to the particular fact which the applicant challenges as being based on a fact which did not exist is part of the Tribunal's observations about his credit. It reads: "The Tribunal had difficulty accepting many of the applicant's claims. The Tribunal does not accept that the applicant was arrested and detained in the manner described, that there are warrants currently issued for his arrest or that the police are currently looking for him. There were some significant difficulties with the Applicant's evidence and the Tribunal did not find him to be a satisfactory or reliable witness. The Tribunal found much of his evidence to be contradictory or implausible." 25 Following that passage the Tribunal gives a number of reasons for that conclusion. They are briefly summarised earlier in these reasons. In the course of that discussion, the Tribunal specifically adverted to the alleged warrants, again in a passage which includes the finding of the particular fact which is said not to exist. The Tribunal said: "The Tribunal does not accept that there were warrants out for the applicant's arrest. The applicant claims to have known about the warrants since 1994. Yet he failed to mention them in his application or in his statement. He said he received copies of them in February-March 1997 yet his statement was made in June 1997 and he did not enclose them or mention them. Further the warrants on the face of them are based upon an FIR from 1994 involving an incident in the Punjab and the applicant claims he was not in the Punjab at this time. Finally the applicant was able to leave Delhi airport without incident or prearrangement as to which immigration officer he dealt with. The Tribunal notes the contents of DFAT cable ND84486 produced at page 6 and finds that the applicant would not have been able to leave Delhi airport in the manner he described if there were current warrants issued for his arrest." 26 The DFAT cable to which the Tribunal refers contains information from the Department of Foreign Affairs and Trade that indicates strongly that, provided a person is travelling on a valid passport in that person's name (as the applicant did to travel to Australia), he would have been unable to leave India undetected or by bribery. It records that airport checks are "exceedingly thorough". 27 Towards the conclusion of its reasons, the Tribunal found explicitly that the applicant had fabricated his claims for refugee status. It rejected his claims that he was arrested, tortured and detained. It rejected his claims that there are currently warrants for his arrest outstanding and that he is falsely accused of the murders of two AISSF members. It found that he may have been a member and low level supporter of the AISSF, but he was not a high level activist nor a human rights campaigner. Someone in that position, as noted earlier, was not at risk of persecution upon return to India. 28 In my judgment, that material shows that the Tribunal did address the question of whether the warrant of 8 November 1995, or other alleged warrants, were genuine. It rejected the claim that such warrants existed. It gave reasons for that finding. It is evident that the Tribunal did not regard the document of 8 November 1995 as genuine. 29 Consequently, the foundation for the applicant's contention must fail. It has not been shown that the particular fact – that there were no warrants outstanding for the arrest of the applicant – did not exist. The proposition is premised upon the fact that such a warrant or warrants did exist, but the Tribunal's reasons do not provide any basis for that assertion. The application based upon s 476(1)(g) and (4)(b) must fail. 30 No other matter was argued on this application. 31 Accordingly, the application is dismissed. I certify that the preceding thirty-one (31) 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 Applicant: Mark Clisby Counsel for the Respondent: Ms S Maharaj Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 27 January 2000 Date of Judgment: 10 February 2000