Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 482

FEDERAL COURT OF AUSTRALIA

Hartej Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 482

HARTEJ SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

V 37 of 2000

RYAN J MELBOURNE 27 APRIL 2001

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 37 of 2000

BETWEEN: HARTEJ SINGH

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE OF ORDER: 27 APRIL 2001

WHERE MADE: MELBOURNE

THE COURT ORDERS: 1. THAT the application be dismissed. 2. THAT the applicant pay the respondent's costs of the application, such costs to be taxed in default of agreement. 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 37 of 2000

BETWEEN: HARTEJ SINGH

Applicant

AND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: RYAN J

DATE: 27 APRIL 2001

PLACE: MELBOURNE

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") affirming a decision of a delegate of the respondent Minister to refuse to grant the applicant a protection visa. The applicant is an Indian citizen of Sikh ethnicity. He arrived in Australia on 27 August 1997 and, on 26 September 1997, lodged his application for a protection visa. As summarised by the Tribunal, his application contained the following assertions of fact; · "While working as a taxi-driver in Phillaur two Sikh men asked him to take them to a Sikh temple in New Delhi where they exchanged bags and then went to Amritsar where three men were waiting for the bags. · One month later, he was again asked by the same two men to go to Srinagar where, at an hotel, they received two bags and then went to Amritsar where they were delivered to the same three men. He was tipped well but was concerned and only went on the last trip when offered twice the normal fare. On that last trip, they were stopped by an Indian Army officer who found rifles and pistols in these men's bags. The men resisted arrest and escaped, leaving the Applicant to be arrested. The Applicant was suspected of being involved in arms smuggling. · He was detained by the Army for six months and then handed over to the Punjab police, but was able to escape after a traffic accident during his transportation to the Punjab. · He fled to New Dehli and his father told him not to come to the Punjab as the police were looking for him. With money his father was able to borrow, travelled to Australia." 2 Those assertions were amplified in the applicant's oral evidence before the Tribunal on 30 November 1999. The Tribunal in its reasons recounted that evidence in point form as follows; · "He was a taxi driver for three years 9 months and 19 days and commenced that job at the beginning of 1992. · Two Sikh men asked him to drive the 400 kilometres to New Delhi. When in New Delhi they picked up two bags from a Sikh Temple and then went to a hotel for the night. The next day he drove them about 500 kilometres to Amritsar and then back to Phillaur. He was paid 5000 rupees for the trip. · In all he made three trips with these two Sikh men, twice to Srinagar and once to New Dehli. · When they asked him to make the last trip he said that he would make more money working in the city and they said they would match his daily earnings for the trip. · When they were returning, a three-man army patrol stopped them at the Jussker Tunnel. · When the officers started to search the bags the two passengers started firing in the air and ran away. He was arrested and taken to the Srinagar police Station. · At the police station he was asked whether he was one of the terrorists, he said no but he was merely the driver. The Army officers did nothing to him on the first day, but on the second day they hung him by his wrists and again questioned him. They detained him for six months. · A case was registered against him, accusing him of being a terrorist and he was handed over to the Punjabi police. · When he was being transported by the police to the Punjab with another prisoner, the police car hit a truck, one of police officers died and the other officer was trapped under the vehicle. The other prisoner got the keys and they released each other from their handcuffs and fled. · He initially fled to Ludhiana and rang his neighbour's house, as his parents didn't have a phone. The neighbour said the police were in his house and he should not attempt to contact his family. He then went to New Delhi and contacted his father from there. · His father borrowed money from relatives and gave it to him. He had already had his passport for a number of years and was able to leave India from Bombay. He had an agent, who had been arranged by friends, acting for him to assist him at the airport. · He said that he feared that he would be killed if he returned to India because they have a case against him. · (When it was put to him that he was a suspected terrorist and wanted for escaping from lawful custody and asked why the authorities would kill him, rather than arrest him) He said that the police are the government there (and that he would be killed). · He said he wanted to remain in Australia. · (When asked whether he had contacted his family recently) He said that he had not been able to make contact with them at all; his father appeared to be missing. He said that he had written to his parents and his sister, but there had been no reply." 3 After reviewing "country information" derived from the US Department of State, India Country Report on Human Rights Practice for 1998, the Tribunal noted; "This country information is inconsistent with the Applicant's claim that "the police are the government there" (When it was put to him that he was a suspected terrorist and wanted for escaping from lawful custody and asked why the authorities would kill him, rather than arrest him)." 4 The Tribunal then observed; "If the Tribunal accepted the Applicant's claims that he was arrested as a suspected terrorist and, on the claims made, for the possession and transportation of illegal weapons, the issue for the Tribunal would be whether that would constitute persecution within the meaning of the Convention." 5 Reference was then made to Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 as establishing that the non-discriminatory application of laws of general application does not constitute persecution. The Tribunal then concluded; "Assuming that the Applicant's claims regarding the transportation of firearms are true, there are a number of Laws under which the Applicant could be charged including the National Security Act. The maintaining of national security and the protection of public safety, and the arrest of terrorists and the seizure of illegal weapons are a "legitimate object of the country of refuge". As stated by McHugh in Applicant A[(1997) 190 CLR 255] at 258, "A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens". The Tribunal finds that laws under which the Applicant claims to have been arrested or charged are criminal laws which are aimed at protecting the community.