Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1961

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1961

BALBIR SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS V 451 OF 2000 NORTH J 11 DECEMBER 2000 MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 451 OF 2000

BETWEEN: BALBIR SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE OF ORDER: 11 DECEMBER 2000

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant is to pay the respondent's costs of and incidental to the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 451 OF 2000

BETWEEN: BALBIR SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: NORTH J

DATE: 11 DECEMBER 2000

PLACE: MELBOURNE

REASONS FOR JUDGMENT

introduction 1 This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) made on 18 May 2000. In that decision, the Tribunal affirmed the decision of a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse the applicant, Balbir Singh, a protection visa.

background and claims 2 The applicant is a citizen of India of Sikh ethnicity, who arrived in Australia on 30 July 1994. He was travelling on an Indian passport issued on 5 May 1989, containing an Australian visitor visa issued in New Delhi on 21 July 1994. 3 The application for a protection visa by the applicant has a long history. The applicant first applied for the visa on 21 October 1994, and that application was rejected by a delegate of the respondent on 31 October 1995. On 22 August 1996, the Tribunal affirmed the primary decision. This was the first decision of the Tribunal in relation to the applicant. The applicant sought judicial review of this decision and it was set aside by consent on 28 July 1997. 4 The Tribunal then held a second hearing and on 12 October 1998, again affirmed the delegate's decision. The applicant sought judicial review of the second Tribunal decision. On 25 October 1999 the second decision was also set aside by consent. 5 The hearing which led to the third decision of the Tribunal, being the decision currently under review, was held on 7 March 1999. This lengthy history explains why the present decision contains a long recitation of the claims and evidence before it. The applicant's claims were set out in written submissions to the Department of Immigration and Multicultural Affairs (the Department), and given orally at an interview with an officer of the Department. The applicant also gave oral evidence at the first Tribunal hearing on 11 June 1996, and at the second Tribunal hearing on 29 April 1998. Further written submissions and oral evidence were given to the Tribunal at the third hearing on 7 March 1999. 6 The grounds of review relied upon by the applicant are narrowly drawn. It is not necessary for me to set out the claims and the evidence upon which they were based, except to give sufficient background to understand the limited grounds of review. For that purpose, I intend to summarise very briefly the evidence which was before the third Tribunal hearing. 7 In the section of the decision under review entitled "Claims and Evidence", the Tribunal outlined the claims of the applicant in the following way: The applicant joined the Khalistan Liberation Force (KLF) in 1986. He worked as an auto electrician and said that members of the KLF came to his workplace to have their cars fixed, and they there asked him to become a member. He said that by reason of his association with the KLF, he was kept under surveillance by plain-clothes policemen between 1986 and 1988. During this period, he was not taken into custody or questioned, until the event concerning the taking of his scooter. 8 On 29 June 1988 the applicant was on his way home from work when he was approached by two KLF members. They borrowed his scooter and told him to lodge a report with the police that it had been stolen. The applicant said that the KLF members took his scooter for party purposes to distribute papers "or something". The Tribunal asked why the applicant needed to report the scooter as stolen. He answered that the KLF members told him to do this so that if something happened, he would not be liable. 9 When the applicant went to the police to report the theft, they interrogated him and accused him of having known the people who took the scooter, and of having given it to them willingly. 10 The applicant was then released. Two or three days later, the police recovered the scooter. The applicant said that the police told him that they were going to kill someone in a false encounter and use the scooter in that encounter, and then it would be returned. 11 The police then killed a man, Ajarib Singh Barwa, and said that they recovered the scooter at the incident. 12 The applicant said that the police warned him not to tell anyone about their involvement in the killing, or he would be killed himself. The police returned the scooter on the understanding that the applicant would produce it in court if he was required to do so. 13 The applicant subsequently received a summons to attend court on 16 March 1994. The summons indicated that the scooter had been recovered and that two persons had been accused of its theft. He was required as a witness to identify the two people. He said that the hearing was adjourned until May 1994 because the police officer who prepared the case did not appear. 14 On 19 May 1994, when the matter returned to court, the applicant was asked if he recognised the accused. He said he did not. The applicant claimed that members of the KLF had warned him that if he identified the accused, he would be killed. The applicant said the police had also insisted that he identify the accused. He claimed therefore that he was under threat from both sides. 15 He said that the police officers responsible for the case again failed to appear in court on 19 May, and consequently the matter was adjourned once more, this time until 27 July 1994. 16 On 27 July 1994 the applicant attended court and was again asked to identify the accused. He did not do so and the police were dissatisfied with him because he had spoiled their case and their promotions would be affected. As the police did not attend on either 19 May 1994 or 27 July 1994, the Tribunal asked how he knew that the police wanted to arrest him. He responded that KLF members who accompanied him to court had told him that the police wanted to arrest him. What happened thereafter was a matter addressed in one of the arguments on review. Consequently, I set out that passage of the Tribunal's reasons in full: "The applicant went to Delhi straight from court and left India on 29 July 1994. The applicant had held a passport for some time and his visa to visit Australia was issued on 21 July 1994. The applicant was asked why he did not leave as soon as his visa was issued. He replied that he had to go to court to give evidence or else a warrant would be issued for his arrest and he would be arrested at the airport when he tried to leave. The applicant was asked why he did not leave before 27 July as then they would not have known that he had not turned up and he could leave before the warrants were issued. He replied that he was not immigration cleared until 27 July. That it took some time to travel between Delhi and Jalanhar[sic], where his passport was issued and that he had to be immigration cleared in the town where his passport was issued. It was put to the applicant he could have got immigration cleared on 22 July. He responded that he gave the passport to the agents and they said that he would get it back on 27 July. The applicant renewed his passport in Australia without any difficulties." 17 The applicant also claimed that there were warrants issued for his arrest. This was supported, he said, by the fact that after he came to Australia, his wife who had remained in India was beaten up by the police. 18 In relation to the period between 1988, when the scooter was returned, and 1994, when the court case was heard, the applicant said that he had not been beaten by the police but that they had kept an eye on him. He was never taken in for questioning. He was only beaten once, when he first went to report the loss of his scooter. The Tribunal put to the applicant that the country information indicated that the situation in the Punjab had returned to normal. The applicant responded by saying that the police were still looking for him, that they were asking about him and that he was at risk from them. 19 Similarly, in relation to the proposition that he could relocate to another area of India, the applicant said that wherever he went, he would have problems with the police. It was put to him that the country information showed that Punjab police would not pursue someone outside the Punjab unless they were militants, perceived militants or had a history of arrest and detention. The applicant responded that he was in this last category because his wife had been beaten and because the police had warrants for his arrest. The applicant's wife gave evidence about beatings by the police which she said she had experienced after the applicant left India.