FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 406 HAKAM SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS NO S 82 OF 2000 O'LOUGHLIN J ADELAIDE 11 APRIL 2001 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY S 82 OF 2000 BETWEEN: HAKAM SINGH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE OF ORDER: 11 APRIL 2001 WHERE MADE: ADELAIDE 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 SOUTH AUSTRALIA DISTRICT REGISTRY S 82 OF 2000 BETWEEN: HAKAM SINGH APPLICANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: O'LOUGHLIN J DATE: 11 APRIL 2001 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicants in these proceedings are Hakam Singh, his wife, Gagandeep Kaur and their fourteen-year-old daughter, Amarjeet Kaur. They are from the Punjab in India. The parents, who are in their late forties, arrived in Australia with their daughter on 30 November 1997 and within a month Hakam Singh applied for protection visas for himself, his wife and his daughter. On 6 May 1998, a delegate of the Minister for Immigration and Multicultural Affairs refused their application. On 26 May 1998, the family applied to the Refugee Review Tribunal ("the Tribunal") for a review of that decision; once again, they were unsuccessful. On 6 June 2000, the Tribunal rejected their application. Hakam Singh, on 26 July 2000, lodged an application in this Court, seeking, on behalf of himself and his family, a review of the Tribunal's decision. 2 In answer to the question "why did you leave that country", Hakam Singh, when completing his application for a protection visa, wrote: "The National leaders made promised (sic) to the Sikhs that they would grant special status and an autonomous region in Punjab. The Sikhs decided to live in India. After the Freedom was granted to India, National leaders ignored their promises to the Sikhs. When Sikh's demand for greater autonomous has taken the momentum, then operation Bluestar and Wood Rose were carried on Sikhs sense of honour. Particularly the attacks on Amritdhari's (baptised) Sikhs, daughters and sisters. We are baptised Sikhs. We were tortured many many times by the police. I have lost my patience to tolerate more suffering. I escaped from the country." 3 Although his use of the English language has been strained, it is, in my opinion, quite clear that the male applicant was intending to raise a question of persecution. His counsel, Mr Clisby, submitted that it was persecution that arose as a result of the applicant's political opinion. He did not claim persecution by reason of his membership of a particular social group – a ground that had been raised before the Tribunal but rejected by it. Furthermore, in answer to other questions, the male applicant recounted details of his political activities in support of the independent state of Khalistan and his "illegal detention, tortured and released on unaccounted times" (sic). He then addressed the activities of the police, saying of them: "The police frequently visit our house and searched everything and put the things upside down. This way invading our liberty and privacy. During this search they beat us, and abused us. They often come without any search warrants. We reported matter to higher authorities but no body listen." 4 Hakam Singh further claimed that he has been hospitalised on several occasions as a result of police brutality. He wrote in his application: "Once police took me police station, they first abused me then gave me URINE to DRINK. They asked me about my brother. I did not tell where he was. They put me down and danced on my belly, there after I was hospitalized and operation was done. After this incident, three times, they have taken me for interrogation and hit me on the same place where I had the operation. Consequently I was operated on each occasions. I could not tolerate any more atrocities of the police. I left the country. If I go back I would be same position." 5 The Tribunal made an error, which in my opinion was inconsequential, when discussing the male applicant's brother. The Tribunal said: "The applicant said he thinks his brother is involved in anti government criminal activity and he is prepared to die for Khalsa. The letter from his Sarpanch seems to imply his brother was not involved in the militant activities … The letter from the Sarpanch is contained on page 105 of the copy documents and states as follows: 'TO WHOM IT CONCERNS I know HAKAM SINGH s/o HARJIT SINGH V.P.O. Matta Tehsil J ai Tu Distt. Faridkot He was picked by police on 18-2-93. As police was looking for his brother, who was un-volived (sic) in militant activities for the Achievement of Inolipendent (sic) Sikh State. During His Arrest he was beaton up so badly in the stamach (sic) that he was unable to urinate, consequently he was taken to Hospital in Patiala, where he received Medical Treatment. I also confirm that during several occasions police did come to our village and family members of HAKAM SINGH were subjected to very insultine (sic) behaviour of police who are law on to themselves. Yours sincerely, SARPANCH of Matta' The word "un-volived", in my opinion, is poor spelling for the word "involved". However, the Tribunal appears to have read the word "un-volived" as meaning "uninvolved". The letter from the Sarpanch clearly states that the police were looking for the applicant's brother and that the applicant's brother was involved in militant activities for the achievement of an independent Sikh state. Counsel for the applicant submitted that the quoted passage from the Tribunal's reasons constituted a decision; he then argued that there was no evidence to justify the making of this decision by the Tribunal and that the Tribunal in making the decision based the decision on the existence of a particular fact, which fact did not exist. I do not consider that there is any substance in this submission. 6 In the first place, contrary to counsel's submissions, I do not consider that this section of the Tribunal's reasons constitutes "a decision". In the second place, even if it did constitute a decision, it would merely be a decision with respect to the past activities of the applicant's brother and, as such, it would have been a matter of only peripheral consequence to the applicant and his application for a protection visa. I agree with Mr Clisby that the Sarpanch's letter was intended to state that the male applicant's brother was involved in militant activities. However, I cannot see how that mistake could have, in any way, affected the Tribunal's ultimate decision about the application for protection visas that were made by Hakam Singh, his wife and his daughter. 7 The Tribunal specifically recorded the male applicant's evidence about his brother in these terms: "The applicant said at hearing that he has two children living in a hostel in India. He said he has sent money back three times to support them. He said his parents still encounter difficulty and his brother is in hiding. The applicant said his brother is with a group called the AISSF Bittu group. He said his brother does not tell them what he does but he thinks he is a criminal involved in anti government activity who is prepared to die for Khalsa. He said his brother would not harm people who are innocent. The applicant said he did not know much about the AISSF Bittu group as he is not educated. He said the Bittu group follows the Khalsa all the way. I put to the applicant that Bittu Singh was in jail and charged with at least three counts of murder. He said it was a false case. I put to him that it was a matter for the Indian courts before which Bittu Singh seemed to appear regularly. The applicant said he fed some of those involved with the militants and passed on letters. The applicant said police never arrested his brother. The applicant said police came to his home 4-5 times and he was arrested once and detained for one day. He said he always hid on other occasions so was not again arrested. I put to him that the fact that he was not detained between 1993 and his departure for Australia was consistent with country information that there was a gradual but clear reduction in the difficulties faced by ordinary people in and around Punjab." Khalsa, meaning "the pure", is the dominant order Sikhism; most children undergo initiation, (or baptism), into Khalsa upon reaching puberty. 8 During the course of the hearing in the Tribunal, Hakam Singh was questioned in further detail about the nature of the brutality that he had suffered. The Tribunal, in its reasons, noted that he said that the last time that he "had trouble" was in February 1993. The Tribunal also put to him that he and his family could have relocated to some other part of India such as Bombay. The Tribunal wrote that he claimed, in answering that proposition, that he was illiterate and "so he could not go anywhere in India"; he felt however, that his family "could be looked after in Australia". The female applicant gave a similar answer; she also said that they could not relocate because they were not educated and they did not have any language skills. 9 The applicants, who were assisted by an adviser before the Tribunal, made the following claims: · the male applicant and his brother had been part of a political opposition in India and, as a result Hakam Singh and his family were in danger; · the male applicant's claim for a protection visa was based on a political opinion that was attributed to him as a supporter of a militant group; · he has been imprisoned and tortured in the past and that constituted persecution for a Convention reason; · he is known to the authorities because of his past activities; · although there have been changes for the better in the Punjab in recent times, and for the Sikhs in India generally, these changes are not sufficient to make the applicants feel secure. 10 The Tribunal in its reasons referred to and relied on "Country Information", recounting the bloody events of "Operation Blue Star", the storming by Indian forces of the Golden Temple at Amritsar and the assassination of Mrs Indira Gandhi a few months later at the hands of her Sikh bodyguards. The Tribunal also noted that there were numerous reports of extensive human rights abuses that took place in the Punjab at the height of the Sikh separatist movement; it devoted several pages of its reasons to a catalogue of the horrific sufferings that were inflicted on all sides during that most turbulent period. 11 It can readily be accepted that members of the Sikh community in the Punjab have, in the past, suffered severely as a result of internal conflicts and their desire for autonomy. The Tribunal, in its reasons, discussed the history of those conflicts and the sufferings that they caused in some detail. It noted, for example, that the Human Rights Watch had claimed that: "… the Indian authorities engaged in a pattern of gross violations of human rights and humanitarian laws in [the] Punjab." The Tribunal then added: "Abuses included arbitrary arrests, torture, detention without trial, disappearances and killings of Sikh civilians and suspected militants." 12 On the other hand, the Tribunal also recognised that the situated has changed, materially for the better, in recent years. It noted this important fact in its reasons quoting, inter alia, from the Research Directorate, Immigration and Refugee Board, Ottawa (IND3075 dated 12 January 1999): "The professor believes that Bengal and Tamil Nadu would be the easiest places for a Sikh to relocate to, since both have sizeable Sikh communities. He added that a Punjabi Sikh would have no more problem enrolling his children in school or obtaining employment than any other Indian relocating to a new area." At a later stage of its reasons the Tribunal further stated that: "Another report (IND30759.EX 12 January 1999) from Research Directorate, Immigration and Refugee Board, Ottawa indicates almost all reports on the human rights situation in Punjab consulted by the Research Directorate have stated that, in recent years, "normalcy" has returned to the state. Many of the sources contacted while researching this response also indicate that the political and human rights situations in Punjab have improved markedly since the end of the militancy." 13 Similar sentiments appear to be held by the British Authorities. The Tribunal quoted from The India Assessment that had been released by the British Home Office Country Information and Policy Unit in September 1999. It stated that: "The Sikh militant movement is no longer active in Punjab. The hard core militants have either been physically wiped out or are no longer in India. There are no reports in 1997 or 1998 of Sikh militants forcing the local population to provide them with assistance. There is no obvious support for the militants and the people of Punjab want peace. A few remaining Sikh militant leaders are now based in Pakistan and their activities appear to be ineffectual. Two militant organisations retain a capacity for activism, namely the Babbar Khalsa under the leadership of Wadawa Singh and the Khalistan Commando Force led by Paramjit Singh Panjwar. They are believed to retain bases in Pakistan and to have an international circle of support. According to the available information, none of the Sikh groups or militant organisations in Punjab are banned although the Indian Government regards the wing of the AISSF led by Daljit Singh Bittu as a terrorist organisation, and Bittu himself is in Tihar jail in Delhi." 14 In his amended application for an order of review, Mr Hakam Singh advanced two grounds. He claimed that the Tribunal's decision involved an error of law: par 476(1)(e); and he also claimed that there was no evidence or other material to justify the making of the decision: par 476(1)(g) of the Migration Act 1958 (Cth) ("the Act"). Before turning to a consideration of those two grounds it is first necessary to recount the claims of the applicant and the findings of the Tribunal. 15 Hakam Singh claimed that he and his family are dedicated to the Sikh cause. He said that he had distributed pamphlets in support of Khalistan and that his work for the cause resulted in his arrest, his illegal detention and torture at the hands of the police. He also said that his brother is now a member of the All India Sikh Student Federation and that his brother is working "underground". The Tribunal recorded his further claim that his brother had joined the militants because the police had raped his sister. 16 Based, in part, on the fact that Hakam Singh had not run foul of the authorities since 1993, and based in part on the fact that the Country Information, which the Tribunal quoted in its reasons, showed that there had been an improvement in conditions in the Punjab the Tribunal concluded: "I am satisfied on the basis of his evidence that the applicant has not encountered treatment amounting to persecution since 1993. Given his lack of involvement in political activity it is not unexpected that he encountered no serious difficulty after 1993 as country information indicates that it is high profile activists or human rights defenders who may now be targeted by authorities. The applicants fit neither of these categories. The country information also indicates that persons like the applicants who are not 'politically inconvenient', habitual offenders, 'rounded up whenever something untoward happens' and arrested in 1993 because police were interested in a relative rather than for anything the applicants have done are not targets of persecution. It is evident from the country information referred to above that this has been the thrust of country information reports for some time." 17 The Tribunal acknowledged that Hakam Singh's arrest, imprisonment and torture in 1993 would have amounted to persecution for Convention related reasons. However, the Tribunal did not accept that the events of 1993 "now give rise to a fear of persecution for this applicant or his family". In support of that conclusion the Tribunal noted that the applicants' son and another daughter, who are still in India, have not encountered any difficulties; they are being educated without trouble. The Tribunal also noted that the applicants left India, using their passports which had been obtained without any interference from the authorities. the first ground – error of law 18 As I understand Mr Clisby's argument, the Tribunal misconstrued the nature of the application that was before it and that in so doing, it committed an error of law. According to the argument, protection had been sought on the ground that there was a well founded fear of persecution that was based on Hakam Singh's political opinion – not because of him being a member of a particular social group. The argument concluded with the proposition that the Tribunal fell into reviewable error when it made reference to a claim of persecution because of membership of a social group. In my opinion this submission does not do justice to the Tribunal's reasons. 19 The task that the Tribunal faced required it to consider whether the information that was before it might justify it coming to a conclusion that the applicants were entitled to protection visas. The Tribunal could have achieved that goal if it were satisfied, for any one of the five convention reasons, that the applicants had a well-founded fear of being persecuted. The fact that the Tribunal discussed and rejected persecution because of membership of a particular social group, did not mean that the Tribunal overlooked persecution because of political opinion. That this is so is quite easily gleaned from a reading of the whole of the Tribunal's reasons. It was, in my opinion, proper for the Tribunal to address the question of a social group because of the strong reference to Hakam Singh's brother and the incidental reference to his parents. There was no error of law; the first ground must fail. the second ground – no evidence 20 The second ground in support of the application for an order for review also relies on the Tribunal's reference to membership of a particular social group. The argument was advanced that the Tribunal only looked at the matter from the membership of a social group. This, in turn, was put forward as a particular fact which did not exist. I cannot agree. In the first place, the Tribunal did not only look at the matter from the membership of a social group; it also considered the additional question of religion as well as spending much time on the issue of political opinion. In the second place, as I have already indicated, it was proper for the Tribunal to address the question of a social group for the reasons I have already given. 21 In my opinion there is no substance in either of the grounds of review. The application is dismissed with costs. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Loughlin. Associate: Dated: 11 April 2001 Counsel for the Applicant: Mark Clisby Solicitor for the Applicant: Mr Mark Clisby Counsel for the Respondent: Ms Sashi Maharaj Solicitor for the Respondent: Sparke Helmore Date of Hearing: 4 December 2000 Date of Judgment: 11 April 2001