FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1014 MIGRATION - application for review of decision of Refugee Review Tribunal - whether Tribunal failed to apply the term "well-founded fear" in the Convention in reaching its decision - Tribunal considered whether it would be reasonable for the applicant to relocate in deciding whether the applicant had well-founded fear - whether Tribunal's ultimate conclusion in relation to the applicant's claim to have a well-founded fear should be upheld even if it erred in its consideration of relocation principle. MIGRATION - discussion of correct approach to real chance test and relocation principle in context of Article 1A(2) of Refugees Convention. Migration Act 1958 (Cth) ss 36(2), 65, 476(1)(e) Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 applied Minister for Immigration and Ethnic Affairs v Guo (1996) 191 CLR 559 applied Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 followed BHUPINDER SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 96 OF 1999 MANSFIELD J 31 JULY 2000 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 96 OF 1999 BETWEEN: BHUPINDER SINGH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 31 JULY 2000 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be granted. 2. The Tribunal's decision be set aside. 3. The applicant's application for review by the Tribunal be remitted to the Tribunal for reconsideration in accordance with these reasons. 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 96 OF 1999 BETWEEN: BHUPINDER SINGH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 31 JULY 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 3 November 1999. The Tribunal affirmed a decision of a delegate of the respondent not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 To establish an entitlement to that visa, the applicant had to satisfy the delegate of the respondent, and on review the Tribunal, that he was a person to whom Australia owed protection obligations under the Refugees Convention as amended by the Refugees protocol (using those terms as defined in the Act) ("the Convention"): s 36(2) of the Act. In effect, the applicant had to satisfy the delegate of the respondent, and on review the Tribunal, that he was a refugee as defined in Article 1A(2) of the Convention. It provides that a person is a refugee if that person: "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 Tribunal largely accepted the applicant's claims. He is a Sikh. He was brought up in a village in Uttar Pradesh. He and his family were suspected of supporting Sikh separatists, and in 1985 his father died as a result of ill-treatment suffered at the hands of the authorities when the applicant and his father were arrested for helping Sikh terrorists. He was also pressured by Sikh militants to provide support to them, and was kidnapped and held by them for some time. However, as he told the Tribunal, by the early 1990s the applicant held no ongoing fear of persecution by Sikh militants and those responsible for that ill-treatment towards him had moved on. 4 It was the ongoing fear of persecution by the authorities which, the applicant claimed, gave rise to him having a well-founded fear of persecution. He claimed that the authorities would persecute him because it was thought that he held political beliefs in support of Sikh militants. The police had, he said, continued to visit his home whilst he was in India and even since had had come to Australia, in search of him. For a number of years he had moved between his home town and Delhi, and whilst at home and in Delhi he had kept a low profile and had taken steps to avoid being identified by the police. He managed to leave India by travelling on a false passport. 5 The Tribunal found: "The applicant gave a clear and credible account of his experiences in Uttar Pradesh. It is not implausible that Sikh separatists took refuge in that state in the 1980s, as it shared a border with the Punjab. That they may have is borne out by the evidence in 1995 that the Indian authorities had underestimated the extent to which militants from Punjab had operated from Uttar Pradesh. I accept that the applicant's family members were forced to provide food to Sikh separatists up to as many households did in neighbouring Punjab. I accept that he was detained by police, that he was seriously ill-treated by them on many occasions and that his father died, most likely as a result of ill-treatment during police detention. Human rights violations by security forces were reportedly at their most intense during this period, and his evidence about this harsh treatment is entirely consistent with the evidence before me." 6 It also accepted that the local police in Uttar Pradesh continued to make visits to the applicant's wife and other relatives looking for the applicant. That indicated to the Tribunal that, at least in that area, the authorities continue to have some suspicions that the applicant supports Sikh militants. 7 The Tribunal gave lengthy consideration to independent country information about India. It accepted that further lengthy or repeated arbitrary detention or serious ill-treatment by the authorities by reason of the suspicion that the applicant supports Sikh militants would constitute persecution for a Convention reason. It also accepted that the applicant had a strong subjective fear of persecution for a Convention reason. However, it was ultimately not satisfied that the applicant's fear was well-founded. 8 In Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan") and in Minister for Immigration and Ethnic Affairs v Guo (1996) 191 CLR 559 ("Guo"), the High Court has considered the expression "well-founded fear of being persecuted" in Article 1A(2) of the Convention. It is clear that the phrase contains both a subjective and an objective requirement, namely a state of mind - fear of being persecuted - and a basis - well-founded - for that fear (eg. per Dawson J in Chan at 396). 9 Mason CJ, in agreeing with McHugh J (see at 423-431), said at 389 that: "… a fear of persecution is 'well-founded' if there is a real chance that the refugee will be persecuted if he returns to his country of nationality. … … I prefer the expression 'a real chance' because it clearly conveys the notion of a substantial, as distinct from a remote chance, of persecution … If an applicant establishes that there is a real chance of persecution, then his fear, assuming he has such a fear, is well-founded, notwithstanding that there is less than a 50 per cent chance of persecution occurring." 10 McHugh J at 429 said that a far fetched possibility of persecution must be excluded, but if there is a real chance that the putative refugee will be persecuted then that person's fear of persecution should be characterised as "well-founded". See also Dawson J at 398 and Toohey J at 407. 11 In Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 572 pointed out that the use of the real chance test as a substitute for the term in the Convention 'well-founded fear' is to invite error. Their Honours said: "A fear is "well-founded" when there is a real substantial basis for it. As Chan shows, a substantial basis for a fear may exist even though there is far less than a 50 per cent chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation." 12 The applicant submitted that the Tribunal had failed to apply the term "well-founded fear" in the Convention in reaching its decision. He acknowledged that, in the section of its reasons dealing generally with the Convention, it correctly identified the relevant test. But, he contends, it erred in failing to apply that test to the circumstances applicable to the applicant so as to give rise to the ground of review available under s 476(1)(e) of the Act. The respondent contends that the Tribunal correctly applied that test. 13 The contentions concern only the way the Tribunal addressed the claim that the applicant had a well-founded fear of persecution by the Indian authorities by reason of his perceived political opinion that he is a supporter of Sikh militants. It found that the applicant had a strong subjective fear of persecution for that reason. 14 The Tribunal then addressed the question whether that fear was well-founded. It identified three factors to which it had regard, in the following terms: ". The applicant was last detained by police in Uttar Pradesh. He has not had any further contact with police, despite travelling repeatedly between New Delhi and his home and the homes of relatives in and near his village in Uttar Pradesh. He resided in India for approximately ten years without being detained by police. However, he claims that he did not work in New Delhi, and took steps to avoid contact with the police by living at a gurdwara (Sikh temple) . He has claimed that the police who visit his wife and father-in-law in Uttar Pradesh have continued to ask them where he is. I accept that this has occurred from time to time, and thus that the local police remain suspicious about his support for militants. . He was unable to explain why the Indian authorities would have had a sustained adverse interest in him up until now." 15 The Tribunal then said: "As the only difficulties the applicant has had with police have been confined to a village in Uttar Pradesh, and as he lived some distance away from there for ten years without further difficulties, the Tribunal must consider whether he could reasonably be expected to live somewhere within India other than Uttar Pradesh." 16 It is from that point that the Tribunal, the applicant contends, fell into error. 17 That passage does not explicitly record the Tribunal's finding as to whether the applicant's subjective fear of persecution was well-founded at all, whether in relation to the area around his local village in Uttar Pradesh or in Uttar Pradesh generally or in respect of some other area. It is, however, clearly implicit from the Tribunal's reference to the relocation question that it has accepted that, at least in respect of some part of India, the applicant's fear of persecution was well-founded. Otherwise, reference to the relocation question would have been irrelevant. It is not expressed as an alternative basis for the Tribunal's decision. (It may be observed, however, that the Tribunal has not expressly indicated what view it took of the applicant's explanation for him not having been detained by police since the mid 1980s. Having accepted that the local police remain suspicious about the applicant's support for Sikh militants, it is not clear what significance the Tribunal gave either to the applicant's inability to explain why that suspicion persists or, in context, why he had not been detained by police for a number of years.) 18 The Tribunal then, correctly, identified the relocation question as involving not simply whether the applicant could relocate to another area of India but also whether he could reasonably be expected to do so: Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442 per Black CJ ("Randhawa"). It concluded that relocation was a reasonable option. It gave four reasons, as follows: "Firstly, as I have noted, he managed to avoid any contact with the Indian police during his final ten years in India. Agrwaal (1998) has noted that the police (in that case the Punjab police, who appear to be more aggressive in their inquiries than police in other states) will "go after" a person outside their own state if they "really wanted" him or her. The fact that the police did not manage to locate the applicant in New Delhi for so long is significant given that he obtained a number of official documents after leaving his village, including a passport in his own name, a bank savings book, an electoral identity card, and a record of a loan arrangement with the government authority showing transactions. As there is evidence that passports may be denied to persons who may engage in "activities prejudicial to the sovereignty and integrity of India" (IND 1999), the fact that the applicant was issued with a passport in his own name after his time with the separatist group, indicates to me that he was not perceived as falling into this category even by the UP authorities. There is also the evidence of Paul Wallace that Indian intelligence is quite good and if Central police wanted to find a person it was possible for them to do so (1998). If the applicant had fallen into the risk category of "habitual offender" the evidence from Mahmood (1998) is that his name would have been distributed across India via the police computer system. The failure of the police to locate and detain the applicant in New Delhi, particularly given that police were visiting and checking the gurdwara where he resided, indicates that they were not motivated to do so. Secondly, the applicant's personal capacity to relocate is illustrated both by the fact that he has already done so by living in New Delhi for ten years, and by his ability to move to Australia. He has also had ten years of education, and speaks Hindi and Punjabi. Further, there are Sikh communities throughout India into which he could settle (Spellman, 1998). In my view the applicant is an intelligent and resourceful man with the ability to relocate successfully. Thirdly, there is the independent evidence that people who are not high-profile militants, or are not regarded as "possible recidivists" are not at risk in Punjab today (DIRB, 1997; Jane's Intelligence Review, 1995). If that is the case, the risk to the applicant, who falls into neither risk category and has never resided in Punjab where tensions have been greatest, is small if he does not return to his village in Uttar Pradesh. I have noted that Mahmood (IND 1999) warns that people with a local history of abuse by police may be subject to a "personal vendetta" - the applicant may fall into this category, but this evidence again indicates that the risk to him is highly localised. Fourthly, there are reported to be no checks "of any kind" by local police on a newcomer arriving in any part of India. There is no system of registration of citizens. (IND 1999). If the applicant's name is not on the nationwide police computer system, and I am satisfied that it is not, this evidence indicates that he could settle where he wished without risk of being identified as a person of interest to local police in UP." 19 It is clear that the first, third and fourth reasons of the Tribunal are directed to the question whether the applicant might be at risk of persecution for a Convention reason if he were to relocate to some other part of India. It is only the second of the Tribunal's reasons which addresses matters personal to him and remote from his perceived political beliefs. 20 However, the Tribunal concluded: "For the above reasons I am satisfied that it would be reasonable for the applicant to relocate with his family within India to avoid harm which he may face in his village in [Uttar Pradesh]." 21 The applicant contends that, by treating the question of any risk of persecution outside of his village or of Uttar Pradesh in that way, the Tribunal has erred in failing to determine whether he has a well-founded fear of persecution, as explained in Chan and Guo. Instead, it is submitted, the Tribunal has determined that question by asking whether it would be reasonable for him to relocate outside those areas. 22 The Tribunal also addressed another feature of the applicant's claim in a way which involves, so the applicant submits, a similar erroneous approach. As the applicant would have to return to India under a passport in his own name, the Tribunal considered whether he might then be detained and subjected to persecution for a Convention reason. It concluded: "I accept that the applicant may re-enter India in his own name, and that there may be a check on the centralised computer network by authorities at the airport at which he tries to re-enter the country. However for the reasons discussed above I am not satisfied that his name would be on that network as a person of interest to the Indian authorities. In brief, if it was not on that network when his own passport was issued, there is no apparent reason why it would since have been added since. All of the applicant's contacts with the separatists occurred before then. I also place some weight on the evidence of the DIRB (1997) that recent checks of individual Sikhs deported to India revealed that the only one who had been pursued for political reasons after being identified at the airport was a "senior official of the Khalistan Commando Force". This indicates that the policy of the authorities is to focus on leading militants, rather than pursuing Sikhs suspected of more limited links to the separatist movement." (My emphasis) 23 The "reasons discussed" are the same four reasons quoted above. The applicant points to the Tribunal's expression that it is not satisfied that the applicant's name would be on the computer network as further indicating its failure to determine whether he has a well-founded fear of persecution as explained in Chan and Guo. 24 The respondent submits that the Tribunal did not fall into the error alleged by the applicant for two reasons. The first is that the Tribunal concluded its reasons by saying that it found that the applicant's fear of Convention-based persecution in India is not well-founded, and so can be seen to have correctly addressed that question. The second is that the Tribunal has positively found that the applicant's name is not on the centralised computer network of the Indian authorities as a person of interest to the Indian authorities, and that such a finding carries with it the clear conclusion that there is no real chance that he may be subjected to persecution in other parts of India. 25 As Black CJ pointed out in Randhawa at 441, the focus of the Convention definition is upon the protection in the country of nationality as a whole, rather than in some particular region. The Chief Justice said at 443: "If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded." 26 In my view, the Tribunal's conclusion that the applicant's fear of persecution in relation to India is not well-founded was reached and at least in part based on its earlier finding in relation to relocation. It cannot be said, nor do the reasons in any way suggest, that the conclusion was based entirely on considerations outside those pertaining to relocation. It reflects the result of its finding that it would be reasonable for the applicant to relocate outside his village area in Uttar Pradesh, or outside Uttar Pradesh. In my judgment, it is a finding based upon the approach which Black CJ directed in the passage in Randhawa quoted above. I am not therefore of the view that the Tribunal's ultimate conclusion, even if it erred in its consideration of the relocation principle as the applicant contends, demonstrates that it addressed in a correct manner the question whether the applicant's fear of persecution in India was well-founded. Nor do I consider that that concluding passage in its reasons should be taken as qualifying the way in which the Tribunal expressly addressed the relocation principle. 27 I have also carefully considered the wording of the Tribunal's findings. I accept that the Tribunal has positively found that the applicant's name was not on the centralised computer network of the Indian authorities. It said that in explaining its fourth reason. However, I do not think that the Tribunal regarded that matter as decisive of the existence or otherwise of a well-founded fear of persecution. The matters regarded as relevant in relation to its first, third and to some extent its fourth reason go beyond that factor. For example, in explaining its first reason, the Tribunal said that the fact that the applicant was issued a passport in his own name "indicates to me" that he was not perceived as falling into the category of persons whose activities may be prejudicial to the sovereignty and integrity of India. Its other observations in its first reason also do not suggest that that finding was regarded as decisive. Later, when the Tribunal was considering the applicant's return to India, it also referred to material other than the presence or otherwise of the applicant's name on the centralised computer network when assessing the risk of him being apprehended if he were obliged to return to India. Those parts of its reasons, in my view, do not indicate that the Tribunal's finding that the applicant's name was not on the centralised computer network necessarily meant that it concluded that there was no chance of him suffering persecution outside Uttar Pradesh for a Convention reason. 28 The practical realities relevant to whether it is reasonable for a person who claims to be a refugee to relocate in the country of nationality extend beyond physical or financial circumstances. It is necessary for the putative refugee to be able genuinely to access domestic protection, and that that protection be meaningful (Randhawa, at 442). However, I do not consider that the Tribunal, in addressing the question whether the applicant could reasonably be expected to relocate to another part of India, was confining its attention to those practical realities. It is correct that Black CJ in Randhawa quoted with approval a passage from Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) at p 134 in the following terms: "The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized." [Original emphasis.] 29 That passage includes reference to circumstances where internal protection may be inadequate or is illusory or unpredictable. But the Tribunal's reasons for its conclusion on the relocation question indicate that it was not really addressing the quality of the protection which may be available to the applicant elsewhere within India, on the basis that he has no well-founded fear of persecution outside of his local area. Its reasons (apart from the second reason) are directed to the extent of any risk of ill-treatment or victimisation by the Indian authorities in areas of India away from his local area because of his perceived political beliefs. 30 In my judgment, the Tribunal erred in approaching the matter in that way. 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. 31 I do not consider that the Tribunal did address the applicant's claim to have a well-founded fear of persecution in respect of India generally in accordance with those decisions. It appears to have been diverted from that task by turning its focus to the application of the relocation principle, once it had apparently been satisfied that he had a well-founded fear of persecution in relation to his local area in Uttar Pradesh or in Uttar Pradesh itself. The first, third and fourth of its reasons (as set out above) all are concerned with the risk of him being the subject of adverse attention from the Indian authorities outside his local area or Uttar Pradesh. In assessing that risk, the Tribunal has asked the question whether it is a "reasonable option" for the applicant to live in India away from those areas. It is difficult to discern precisely how the Tribunal assessed those factors. Its discussion of those reasons indicates to me that it has treated the question of the existence or non-existence of that risk as falling to be determined as a matter of probability. That view is confirmed, in my opinion, by the Tribunal's consideration of what might face the applicant upon his re-entry to India. It said that it was not satisfied that his name would be on the centralised computer network used by airport authorities. The expression "would be", having regard to the need to express its conclusions in terms of its satisfaction (s 65 of the Act) indicates a method of assessment of that risk other than in accordance with the explanation of the High Court in Chan and Guo. 32 Accordingly, I consider that the application should be granted. The decision of the Tribunal should be set aside, and the applicant's application for review by the Tribunal should be remitted to the Tribunal for reconsideration. I certify that the preceding thirty-two (32) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 31 July 2000 Counsel for the Applicant: Mr M Clisby Solicitor for the Applicant: Mark Clisby Counsel for the Respondent: Ms S Maharaj Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 19 July 2000 Date of Judgment: 31 July 2000