FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1704 MIGRATION - application for review - applicant claimed that he was a refugee on the basis he would face persecution if he was returned to India because he is homosexual - alleged failure to apply "the real chance" test. MIGRATION - relevance of state of law in India - Indian Penal Code criminalises homosexual behaviour, namely sodomy or aiding and abetting sodomy, by "draconian provisions" - applicant submitted that it must follow from the state of the law in India that he has a well-founded fear of persecution throughout India for reasons of his homosexuality. MIGRATION - relocation - claim that the Tribunal failed to consider whether the applicant could relocate within India in accordance with the principles explained in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. Migration Act 1958 (Cth) s 36(2) and s 65(1) Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496 distinguished "Applicant LSLS" v Minister for Immigration and Multicultural Affairs [2000] FCA 211 referred to Minister for Immigration and Multicultural Affairs v "B" [2000] FCA 930 distinguished Minister for Immigration and Multicultural Affairs v Guan [2000] FCA 1033 distinguished MMM v Minister for Immigration and Multicultural Affairs [1998] 90 FCR 324 followed Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 considered Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 referred to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 referred to Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 referred to Minister for Immigration and Multicultural Affairs v Jang [2000] FCA 1075 followed SATINDER PAL SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 55 OF 2000 MANSFIELD J 27 NOVEMBER 2000 ADELAIDE IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 55 OF 2000 BETWEEN: SATINDER PAL SINGH APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE OF ORDER: 27 NOVEMBER 2000 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay to the respondent costs of the application to be taxed. 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 55 OF 2000 BETWEEN: SATINDER PAL SINGH APPLICANT AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: MANSFIELD J DATE: 27 NOVEMBER 2000 PLACE: ADELAIDE REASONS FOR JUDGMENT background 1 This is an application to review a decision of the Refugee Review Tribunal ("the Tribunal") given on 14 April 2000. The Tribunal affirmed a decision of a delegate of the respondent, made on 15 June 1999, not to grant to the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 It is a criterion for the grant of a protection visa that the applicant for the visa is a person to whom Australia has 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. Consequently, it was necessary for the delegate of the respondent, and upon review the Tribunal, to be satisfied that the applicant was a person to whom Australia has protection obligations under the Convention if he was to be granted the visa: s 65(1) of the Act. In practical terms, for present purposes, that meant that it was necessary for the delegate of the respondent , and on review the Tribunal, to be satisfied that he was a refugee as defined by Article 1A(2) of the Convention, namely that he is 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; 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 17 April 1976 in the Punjab area of India. He is a Sikh. He undertook primary and secondary schooling to 1994, and then tertiary education to 1997. He arrived in Australia on 24 April 1998 on a student visa, travelling on a passport procured in his name in 1995. He applied for the protection visa on 8 June 1999. the claims and findings 4 The applicant's claim to be a refugee was based upon two separate claims. 5 Firstly, the applicant claimed that he was a refugee by reason of his actual or imputed political opinion. His father was said to be an extremist, still allied with Babbar Khalsa in Pakistan, and because of that association, the applicant is believed by the police to be a Sikh activist or a supporter of Sikh activism. He claimed to have been imprisoned in 1997 and on other occasions, and to have been mistreated seriously whilst in prison. He claimed to have left India only by the payment of bribes through his fear of continued persecution by the authorities by reason of that political association. 6 The Tribunal rejected that claim. It accepted that the applicant's father had been an activist with Babbar Khalsa, and that the applicant occasionally assisted the pro-Khalistan cause as he had claimed. It found that he held no office in Babbar Khalsa, and that the duties he undertook for it were limited, both in nature and in duration. It also had regard to the applicant's capacity to depart India lawfully, on a lawfully issued passport. Independent country information indicated that a person of interest to the authorities would not have been able to leave India in that way. It did not accept that the applicant had been detained or mistreated by the authorities in 1997 or on other occasions, or that he had been harassed or beaten by the authorities due to any actual perceived continuing connection between his father and Babbar Khalsa. It found that he was not a person who remained at risk of persecution for any Convention reason related to his political beliefs or his imputed political beliefs. It also had regard to the substantial change in the political climate and in the treatment of Sikhs in India over the last several years. It noted, and obviously accepted, the independent country information that the indiscriminate violence of both the authorities and some Sikhs pursuing their aims had dissipated and been replaced by a situation where the authorities target only those persons it suspects of being militant or who have some established history of terrorist associations. It found that the applicant did not fall into those categories, and was not at any risk of attracting the interest of the authorities. It concluded: "any chance that he would now or in the foreseeable future be an official interest by reason of his race or political opinion is utterly remote in light of available country information and his own circumstances." 7 The determination by the Tribunal in relation to that claim is not a matter which the applicant seeks to revisit or to challenge on this review application. 8 The second ground upon which the applicant claimed to face persecution if he returns to India is because he is a homosexual. He said that he lived with a homosexual friend for a time, who was then beaten and killed by the police. He said that homosexuality is against religious values that prevail in the Punjab, and that even his mother had informed him that she would reject him because of his homosexuality. He could not relocate to another part of India, as Sikhs face severe difficulty if they have been born elsewhere. He feared that he would be reported to the police and returned to Punjab where he would be arrested and mistreated. 9 The Tribunal accepted that the applicant's homosexuality meant that he was a member of a particular social group within the meaning of Article 1A(2) of the Convention. That has been accepted by the Court on a number of occasions: Minister for Immigration and Multicultural Affairs v Gui [1999] FCA 1496 ("Gui"); "Applicant LSLS" v Minister for Immigration and Multicultural Affairs [2000] FCA 211 ("Applicant LSLS"); Minister for Immigration and Multicultural Affairs v "B" [2000] FCA 930 ("B"); Minister for Immigration and Multicultural Affairs v Guan [2000] FCA 1033 ("Guan"); and MMM v Minister for Immigration and Multicultural Affairs [1998] 90 FCR 324 ("MMM"). The High Court (McHugh and Kirby JJ) also indicated acceptance of that proposition in Guo Ping Gui v Minister for Immigration and Multicultural Affairs (2000) 21(11 LegRep SL3b, when refusing special leave to appeal from the Full Court of the Federal Court in Gui. 10 The Tribunal also accepted, although with considerable doubt, that the applicant is in fact homosexual. It rejected his claims that he had been sexually assaulted by the police, and the alleged death of his sexual partner in India. However, it accepted his claim that attitudes towards homosexuals are harsh in Punjab and that he was beaten by his former lover's father, by police to whom he and his lover were reported, and by some local villagers. He had never been charged with any offence either for his sexual activity with his partner or for any sex in which he engaged for financial reward. It did not accept his claim that he is still sought by police due to his homosexuality or his practice of homosexuality, particularly because (on his own evidence) he had been released without charge on the occasion that he had been arrested by police, and in view of his later capacity to leave the country legally. 11 The Tribunal concluded: "The Tribunal accepts that the applicant faces a real chance of persecution in his home area by reason of his homosexuality and that he lacks the effective protection of the State there. It turns then to the question of whether the applicant faces a real chance of persecution by reason of his homosexuality in the whole of India or, similarly, by reason of his race or political opinion throughout India." 12 It also considered whether, in line with the principles enunciated in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 ("Randhawa"), it would not be unreasonable to expect the applicant to relocate to another part of India if he has an actual fear of returning to his home area. 13 The Tribunal referred to independent country information concerning those questions. It noted that s 377 of the Indian Penal Code creates a criminal offence of sodomy, with a penalty of up to life imprisonment, even if the offence is committed by consenting adults. It also noted that some country information suggested that abetting the offence of sodomy, by participating in discussion to procure a homosexual relationship, may itself constitute an offence with a penalty of imprisonment for up to ten years, but that the maximum term of imprisonment imposed had been two years. However, despite that law of general application throughout India, the Tribunal noted that the evidence did not indicate that it was generally enforced. The Tribunal concluded: "The clear weight of available evidence is that, notwithstanding the existence of draconian provisions under the Indian Penal Code and widespread disapproval of homosexual behaviour, any chance of homosexuals actually facing persecution in the larger cities of India, such as New Delhi or Bombay, is remote and increasingly so; and the Tribunal finds accordingly." 14 The Tribunal also found that in view of the applicant's age and his level of education, it would not be unreasonable for him to relocate to another part of India, such as New Delhi or Mumbai, if he retains a fear of harm in relation to his own area. It concluded that he is not of any continuing interest for any Convention reason. There was extensive material before the Tribunal, which it accepted, that significant numbers of Sikhs from Punjab live in other areas of India including New Delhi or Mumbai. It considered that Sikhs, including those who support the establishment of a separate State, or homosexual persons who reside in areas such as New Delhi or Mumbai, do not face a real chance of persecution for any Convention reason. 15 The Tribunal also considered whether there would be restrictions upon the applicant practising his homosexuality in an area such as New Delhi or Mumbai. It regarded it as necessary to explore whether the applicant's "core rights" would be infringed if effectively he would be denied any expression of his sexuality at the risk of serious harm. The Tribunal considered whether the applicant, in areas such as New Delhi and Mumbai, would have the right to openly acknowledge his sexual identity and to behave in ways that do not amount in a practical sense to the renunciation of that fundamental characteristic. It regarded his core rights as including being able to cohabit with the same sex partner and being able to acknowledge honestly his sexuality, in the same way that others in the community may acknowledge their political or religious or sexual beliefs and allegiances without fear of persecution. 16 The Tribunal concluded, on the basis of the country information, in relation to major centres such as Mumbai and New Delhi, that the applicant is able to acknowledge his sexual identity and to engage in same sex consensual relationships in private without facing any real chance of persecution. 17 Accordingly, it found that the applicant does not have a well-founded fear of persecution for any Convention reason. consideration of grounds of review 18 There were two grounds of review argued on behalf of the applicant. 19 The first was that, in considering whether the applicant had a well-founded fear of persecution by reason of his membership of a particular social group, namely homosexuals, in areas of India away from the Punjab, the Tribunal erred in law because it did not apply "the real chance" test as explained in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 ("Chan") and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 ("Guo"). It was submitted that the Tribunal erred because, in respect of the balance of India, it asked the question whether it was not unreasonable for the applicant to relocate to such areas having regard to the risk of persecution in those areas, rather than to determine whether there was a well-founded fear of persecution by reason of his homosexuality in those areas. I found in Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 that such an error had been committed by the Tribunal. 20 In my judgment the Tribunal did not fall into that error in this instance. It explicitly addressed the question of whether the applicant faced a real chance of persecution by reason of his homosexuality in the whole of India. It identified the relocation issue referred to in Randhawa as a separate question. Whilst it is true that, in its review of the independent country information, it addressed the factors relating to both those matters together, it clearly isolated the question whether the applicant had a well-founded fear of persecution by reason of his homosexuality in India generally, and addressed it. Its conclusion, based upon the evidence, was that the chance of homosexuals actually facing persecution in the larger cities of India such as New Delhi or Mumbai is remote and increasingly so. That expression of remoteness was one used by Mason CJ, in agreeing with McHugh J in Chan at 389 and at 423-431. In Guo, in the majority judgment (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ) at 572, their Honour 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 thought 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 for persecution. A fear of persecution is not well-founded if it is merely assumed or if it is mere speculation." 21 In Chan, using the term "real chance" as an epexegetic of "well-founded", the Court contrasted existence of a well-founded fear with one which was remote (per Mason CJ at 564 and per Dawson J at 568), remote or insubstantial (per Toohey J at 572) or a far fetched possibility (per McHugh J at 582). In my judgment the Tribunal has properly addressed that question. 22 As a subsidiary of that argument, it was contended that the Tribunal's finding that the Indian Penal Code criminalised homosexual behaviour, namely sodomy or aiding and abetting sodomy, by "draconian provisions" necessarily amounted to a finding that there was or must have been a well-founded fear of persecution for reasons of his homosexuality throughout India. This was contended even though on the evidence the Tribunal found that there was no basis for a well-founded fear that that law would be enforced in the larger cities of India such as New Delhi or Mumbai. Thus it concluded that there was no well-founded fear of persecution for that reason if the applicant were living in those cities. 23 In MMM at 329-332 Madgwick J confronted just such an argument, namely that the criminalisation of homosexuality itself amounted to persecution. His Honour said (at 329): "With respect, such formalism ought not be imputed to the framers of the Convention. There is, in ordinary language and common sense, a clear and cogent distinction between a mere infringement of an internationally recognised human right and persecution. It is not, in my opinion, sensible to ignore matters of degree, now were the framers of the Convention likely to have done so. Many countries have some laws that are more honoured in the breach rather than the observance. Commonly these deal with matters seen by some as concerning only questions of private morality but by others as concerning important questions of standards legitimately the subject of public laws. As such they often raise questions of "human rights". Failure to enforce contentious laws is a common social lubricant. The matter of the criminal law and homosexual acts itself furnishes an example: in counties whose tradition is Western civilisation, private consensual homosexual acts were, until quite recently, generally penalised. That is no longer so, but liberalisation (even for heterosexual fornication – see Z v Minister for Immigration and Multicultural Affairs (unreported, Federal Court, Katz J, No NG 704 of 1998, 11 December 1998) has not been universal. The framers of the Convention were concerned with persecution of a kind which morally obliged civilised States to receive refugees, regardless of other restrictions those States might place on immigration. The fourth preamble to the Convention recognised that "the grant of asylum may place unduly heavy burdens on certain countries". Merely to be legally stigmatised because the expression of one's (legitimate) sexual desires is subjected to the theoretical possibility of heavy penalty, without proof of a real chance of more substantial harm, is hardly likely to have been of great concern to States dealing with the consequences of the murderous excesses of Nazi Germany or Stalinist Russia, and with being obliged to exclude from access to refugee status persons suffering from natural disasters and other sources of profound misery." 24 His Honour concluded that some real prospect of significant actual detriment or disadvantage is necessary to disclose a well-founded fear of persecution. I respectfully agree with his Honour and adopt his Honour's reasons for that view. 25 I have no doubt that if s 377 of the Indian Penal Code were routinely enforced, or if there were a more than theoretical prospect that it might be enforced (in particular in the areas of New Delhi and Mumbai), the potential gravity of the penalties would suffice to warrant the conclusion that the applicant had a well-founded fear of persecution for reasons of his homosexuality. The respondent did not contend to the contrary. But the Tribunal found that there was no real prospect of that law being enforced, and certainly no real prospect of it being enforced in the areas of New Delhi and Mumbai. It also found that, in those areas at least, there was no institutional failure on the part of the authorities to protect persons such as the applicant from acts of private violence perpetrated on them because they are homosexual. 26 In Minister for Immigration and Multicultural Affairs v Jang [2000] FCA 1075, Wilcox J upheld a decision of the Tribunal that that visa applicant had a well-founded fear of persecution for reasons of her religion if she were returned to China. She was practising an unauthorised religion. It was argued for the Minister that the Tribunal had failed to consider the relocation principle as explained in Randhawa, and had addressed only the question whether that visa applicant had a well-founded fear of persecution in her home region. That contention failed, as his Honour was satisfied that the Tribunal had addressed the existence of that fear in relation to China as a whole. 27 Wilcox J at [27-28] said: "However, where the feared persecution arises out of action taken by government officials to enforce the law of the country of nationality, or to implement a policy adopted by the government of that country, it will be much more difficult for an Australian decision maker to reach satisfaction that there is no real risk of the refugee applicant being persecuted if returned to that country. In such a case, if there is a safe area, this must be because the responsible officials have failed to discharge their duty to enforce the relevant law or policy. As Ms Henderson pointed out, that situation might change overnight; either because of the appointment of one or more new officials or insistence on enforcement by superior officers. There will often (perhaps usually) be a 'real risk' of that happening. I do not say it is impossible, as a matter of law, for an Australian decision maker to find that a person would be under no real risk of persecution under a national law, if returned to a particular part of a country. There may be cases where enforcement of a particular law would raise such practical, cultural and other obstacles that a decision maker might become satisfied it was highly unlikely the law would ever be enforced. MMM seems to be an example of that situation. … However such cases are likely to be rare". 28 The rarity of cases where the enforcement of a law of general application is confined to one region only of a country is, as a matter of fact, likely to be true. It is also correct, as his Honour said, that the enforcement of that law in one region will often or usually give rise to a real risk that it may be or will be enforced elsewhere within the country. In MMM, the finding of the Tribunal was apparently that the law criminalising homosexuality in Bangladesh was not enforced at all. A similar finding was made by the Tribunal in "Applicant LSLS". In that case, Ryan J described the question as "whether the applicant had a well founded fear of persecution if he were to pursue a homosexual lifestyle in Sri Lanka, disclosing his sexual orientation to the extent reasonably necessary to identify and attract sexual partners and maintain any relationship established as a result". The Tribunal's finding that that applicant could disclose his sexual orientation to that extent was not disturbed on review. His Honour also rejected the contention that the Tribunal had misapplied the test as prescribed in Chan in concluding that the Sri Lankan Criminal Code, which effectively criminalised homosexuality, did not for that reason alone give rise to a well-founded fear of persecution; the Tribunal properly had regard to the extent to which that law was enforced. In this matter, also, the Tribunal found that the law criminalising homosexuality in India was not enforced; it was adverse conduct and violence condoned, and in part participated in, by the local authorities in the Punjab which led the Tribunal to conclude that the applicant had a well-founded fear of persecution for reasons of his homosexuality if he were to return to the Punjab. 29 Each case will turn upon the particular findings of fact. That is amply demonstrated by the decisions in Gui and in Guan. In Gui, the evidence appears to have been that in Shanghai Province homosexuality is not a crime but on occasions overt homosexual behaviour attracted attention from the authorities so that homosexuals were arrested under the "catch-all" accusation of hooliganism. By way of contrast, Guan also concerned a homosexual in Beijing whose life was lived "at the level of furtiveness and fear brought about by the intolerance of the state". The Tribunal's decision was that visa applicant had a well-founded fear of being persecuted for reasons of his membership of a particular social group, namely homosexuals. The Minister failed to demonstrate reviewable error on the part of the Tribunal in reaching that conclusion. 30 In each of those cases, and in "B", the Court proceeded on the basis of a finding by the Tribunal as to how a law criminalising homosexuality was or may be enforced in practice, and the consequences or potential consequences to the visa applicant if its enforcement, in considering the application for review of the Tribunal's decision. It does not appear, however, that the particular argument now advanced (and advanced in MMM) that the existence of a law criminalising homosexuality per se would give rise to a well-founded fear of persecution if the prescribed consequences of its contravention were serious enough was advanced in those cases. 31 The second ground of review was that the Tribunal had failed to consider whether the applicant could relocate within India, in particular to the larger cities such as New Delhi or Mumbai, in accordance with the principles explained in Randhawa. 32 In Randhawa at 442 Black CJ said: "In the present case the delegate correctly asked whether the appellant's fear was well founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so. This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered." 33 His Honour then explained that the range of those practical realities on the issue of reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and extends to other circumstances. 34 The Tribunal first addressed whether the applicant could relocate to areas such as New Delhi or Mumbai. It concluded that the applicant does not face a real chance of persecution, and does not have a well-founded view of persecution for a Convention reason, in relation to those areas. It then separately identified the question of whether the applicant could reasonably be expected to relocate to those other parts of India. It noted that some 20 per cent of Sikhs in India live outside the Punjab, with the largest communities included in New Delhi, Calcutta and Mumbai. It also noted the applicant's age and his level of education. It concluded that, in those circumstances, it would not be unreasonable to expect the applicant to relocate to an area such as New Delhi or Mumbai. The country information to which it referred included information concerning the attitude of the community in those areas to homosexuals. Although there are other matters which, in other cases, the Tribunal has had regard to in determining whether it is not unreasonable to expect an applicant for a visa to relocate within the country of citizenship (for example, family circumstances, level of education, employment opportunities, personal resilience and flexibility, personal language skills and the like), it is clear that the Tribunal in this instance reached the view that the applicant had the necessary skills and resources to live successfully outside the Punjab and in an area such as New Delhi or Mumbai. It is also apparent that the Tribunal had regard to material to indicate that the attitude of the community in those areas towards homosexuals was not one which would make it unreasonable for him to do so. In my judgment, the reasons of the Tribunal on this aspect do not demonstrate error of law in the manner alleged. 35 Accordingly the application is dismissed. The applicant should pay the respondent's costs of the application to be taxed. I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield. Associate: Dated: 27 November 2000 Counsel for the Applicant: Mr M Clisby Solicitors for the Applicant: Mark Clisby Counsel for the Respondent: Ms S Maharaj with her Ms J Nunan Solicitors for the Respondent: Australian Government Solicitor Date of Hearing: 5 October 2000 Date of Judgment: 27 November 2000