FEDERAL COURT OF AUSTRALIA Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 768 BALBIR SINGH v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 127 OF 2001 HELY J 22 JUNE 2001 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 127 OF 2001 BETWEEN: BALBIR SINGH APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE OF ORDER: 22 JUNE 2001 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. 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 NEW SOUTH WALES DISTRICT REGISTRY N 127 OF 2001 BETWEEN: BALBIR SINGH APPLICANT AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS RESPONDENT JUDGE: HELY J DATE: 22 JUNE 2001 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The applicant is a citizen of India and is a Sikh from the Punjab region. He left India legally via New Delhi on 14 July 1998 and arrived in Australia on 16 July 1998 travelling on a visitor's visa. On 30 July 1998 the applicant lodged an application for a protection visa. On 18 December 2000 the Refugee Review Tribunal ("RRT") affirmed the decision of the Minister's delegate not to grant a protection visa to the applicant. 2 The applicant seeks a review of that decision. The grounds of the application, as stated in the application for an order of review, are: 1 procedures that were required by the Act or the Regulations to be observed in connection with the making of the decision were not observed: s 476(1)(a); 2 the decision involved an error of law, being an error involving an incorrect interpretation of the law or an incorrect application of the law to the facts as found by the Tribunal: s 476(1)(e); 3 there was no evidence or other material to justify the making of the decision: s 476(1)(g). No particulars were given of any of these grounds, nor did the applicant comply with an order made by the Registrar on 8 March 2001 that the applicant should file and serve an outline of submissions three working days prior to the hearing date. 3 The applicant was not represented at the hearing, and he addressed me through an interpreter. Nothing which he told me came anywhere near establishing the existence of any reviewable error on the part of RRT. The essential thrust of what he put to me was that he did not get justice before RRT, and that his life is at risk anywhere in India should he be forced to return. 4 In the applicant's protection visa application of 17 July 1998 he said that he left India because he was "under constant pressure by Indian authorities in relation to my political activities". Those activities arose from his membership of the Sikh community. He was "an active member" of Sikh groups and was watched all the time by "Indian security forces". He was beaten by the Indian authorities "in order I confess for something which I did not know". He fears to return to India because he will be "subjected to even worse tortures" by the Indian security forces. 5 In the Refugee Review Tribunal application for review of 13 November 1998 the applicant says that he applied for refugee status because he was a freedom fighter who had gone through "countless amount of pain and humiliation" at the hands of Indian authorities and others who were opposed to self-determination for Sikhs. He said that he was "an active member" of the Khalistan movement and that he was "arrested, beaten, harassed by Indian authorities for a long time". He fears persecution "because authorities knew I am an activist for Khalistan cause". 6 The applicant attended a hearing before RRT. The transcript of the hearing is not before me but RRT refers to claims made at the hearing in its reasons for decision. At the hearing the applicant stated that whilst he was not an elected leader of any Sikh organisation, his involvement with the movement commenced in about 1984 and consisted of his attending meetings and sometimes distributing posters and pamphlets. He had never become a member of any Sikh organisations, but was "supporting them". He stated that he was arrested in January 1998 after he made a speech at a festival, and that he was thereafter detained for twenty days. After he was released, his injuries were so bad that he was bedridden for two to three months. Prior to his arrest in January 1998, he had been arrested "two to three times". These matters were not referred to in his original application. 7 At the hearing, the applicant agreed that the human rights situation in the Punjab had improved, "but not for people like us, who had been arrested". 8 RRT had before it letters from Dr Rainer Dressler and Dr Jamie Crowe, apparently well-qualified medical practitioners. Dr Dressler examined Mr Singh on 28 August 2000 and found evidence of multiple burn marks/scars on his arms and legs which Mr Singh told the doctor were inflicted by Indian police during February 1998 whilst being tortured. The doctor was also of the opinion that "he may be suffering from depression" – a condition which Mr Singh stated was a consequence of the injuries which had been inflicted upon him. Dr Crowe examined Mr Singh on 1 September 2000. He reported that he was suffering from headaches and "possible depression". 9 It was put to the applicant at the hearing that he had failed to mention the burn scars and marks on his arms and legs in his protection visa application, hence his claims in that respect were "implausible" and "a recent invention". In response Mr Singh is alleged to have stated: "I didn't because they didn't ask me." 10 RRT had independent country information before it which it had previously forwarded to Mr Singh under cover of a letter which informed him that this material may be used to decide his case. It is not easy to summarise that material. The finding which RRT made on the basis of it is as follows: "The Tribunal accepts that the period of serious human rights abuses by the Punjab security forces ended in 1993-1994. The above-cited independent evidence demonstrates that the human rights situation in the Punjab has improved greatly since that time. It also indicates that Sikhs can safely relocate elsewhere in India. The Tribunal was unable to locate any references to any persecution of AISSF members in any Amnesty International or Human Rights Watch publications in the twelve months prior to the hearing before the Tribunal, and any reference of harassment of AISSF members in the Punjab or other parts of India in the world newspaper database of NEXIS. And no reference was found to AISSF or Sikh persecution in the Amnesty International or Human Rights Watch annual reports for 1996-1998. This would indicate that this leading militant Sikh organisation is no longer suffering persecution in Punjab or other parts of India, and that it did not suffer persecution in 1996, 1997 and 1998. This would suggest to the Tribunal that a substantial and durable change in conditions has occurred in the Punjab since 1994 which removes any reasonably foreseeable risk to the applicant." Tribunal's findings 11 The Tribunal accepted the following claims presented by the applicant: - the applicant was born in Gurdaspur, Punjab on 12 January 1959; - the applicant's ethnic group is Punjabi/Sikh and his religion is Sikh; - he speaks, reads and writes Punjabi and Hindi, and he reads and writes English; - he completed eleven years of education, and worked as a farmer and taxi driver from 1975 until 1998; - from 1985 until July 1998 he lived in New Delhi; - his wife, two daughters, son, three sisters and three brothers live in India; - the applicant left India legally via New Delhi on 14 July 1998; - he travelled on a valid Indian passport issued in his own name on 5 February 1998; - the applicant had a number of burns, scars and marks on his arms and legs; but the Tribunal did not accept any of the applicant's other claims. 12 Specifically, RRT found that the applicant was not a credible witness. According to the Tribunal, "key aspects" of his testimony and claims were "simply not plausible", "vague", or contradictory. As a result the Tribunal stated that it did not accept "most" of the claims. 13 In particular RRT found it "implausible" that the authorities would issue him with a passport if he was being monitored because he supported Sikh organisations, and if he had been arrested a number of times prior to his departure. The Tribunal noted independent information which indicated that checks at India's airports are "exceedingly thorough". The belated claim (made at the oral hearing) that an agent arranged his departure details was "a recent invention, fabricated by the applicant in order to create a refugee profile". The fact that the authorities allowed the applicant to leave India legally was consistent with the view that he was of no interest to them. 14 When questioned by the Tribunal about deficiencies in his claims, the applicant contended that he had been tortured so badly that he could not remember many details of those claims. The Tribunal did not accept this. It was not something that the applicant had previously put forward, even though he had ample opportunity to do so. RRT found that this claim was also a "recent invention, fabricated by the applicant in order to create a refugee profile". 15 RRT did not accept the applicant's claim that he was a supporter or member of the Sikh cause or of any Sikh organisation in India. The claim, originally advanced, that he was an active member of Sikh groups was not supported by any detail and was contradicted by his statements at the oral hearing that he was not a member, but a supporter of Sikh groups. 16 Although the applicant had made a general claim in his review application to the Tribunal that he had been arrested, it was only at the oral hearing that he claimed that he was arrested in January 1998 and detained for twenty days, having been arrested on two or three earlier occasions. The Tribunal found that he had ample opportunity to present this claim, and found that his failure to advance it earlier meant that it was a recent invention, which the Tribunal did not accept. Nor did the Tribunal accept that the applicant had been arrested several times, nor did it accept that he was beaten by the Indian authorities as he had claimed. If there was any truth in those claims the applicant would have left Delhi and he would not have waited from January 1998 until July 1998 before leaving India. At least inferentially, if not expressly, the Tribunal rejected the proposition that the applicant had a subjective fear of persecution. 17 As to the evidence of Dr Dressler, the Tribunal accepted his observations, but it did not accept that the burns and marks were caused by the Indian police as Dr Dressler only reported what the applicant told him. If in fact he suffered these injuries at the hands of the Indian authorities, why did he wait so long in making a claim in that respect? 18 RRT did not accept that the applicant is suffering from depression, or that it was caused by the Indian authorities. RRT noted that Dr Dressler said that the applicant may be suffering from depression and Dr Crowe referred to possible depression. 19 The Tribunal concluded on the basis of its adverse credibility findings that it was not satisfied that the applicant had a well-founded fear of persecution for any Convention reason. 20 The Tribunal then considered what the position would have been if "it were to accept the applicant's claims as credible and to accept his claims of past events". I have some difficulty in following the first portion of RRT's reasons in this respect inasmuch as it proceeds on the basis that "on his own evidence" the applicant was only a supporter of Sikh organisations, and was not a member of any militant or any Sikh organisation and he therefore only had a low level political profile at best. I appreciate that there may be internal inconsistencies within the applicant's evidence, but it is not a fair rendition of that evidence that he "only had a low-level political profile, at best". 21 Then, RRT said: "As for the claim that he had been tortured at the hands of the authorities, which resulted in scars and marks, the Tribunal finds that since he was only detained for short periods of time, when he suffered this torture, he was not of sufficient interest to the authorities." This observation was described by Ms Backman, counsel for the Minister, as an "unfortunate throw-away line". I am not sure what that means, or that it is an appropriate description of the Tribunal's process of reasoning. The matters to which I have referred leave me with a feeling of disquiet as to whether the Tribunal really assessed the applicant's claims on the alternative basis that his account of past events was accepted. A feeling of disquiet is, of course, far short of a finding of reviewable error. Having regard to the fact that there is no reviewable error in RRT's rejection of the applicant's claim based on its findings as to credibility, there is no need for me to determine whether there is reviewable error in the conclusion that the claim fails even on the alternative hypothesis that the applicant's claims as to past events are accepted. 22 The ultimate issue which the Tribunal had to determine is whether the applicant has a well-founded fear of persecution for a Convention reason should he be returned to India. In some circumstances, that question could and should be answered in the affirmative even though the applicant is not accepted as a credible witness. The Tribunal addressed this issue at RD 139-140, where it found that the applicant would not face a real chance of being subject to persecution at the hands of the authorities merely for being a Sikh, or a Sikh who had been questioned and detained by the authorities. 23 The applicant's submissions impermissibly invite me to undertake a merits review of RRT's decision. They disclose no reviewable error. Nor, for that matter, do they make out a case that RRT's decision was wrong on the facts, having regard to its conclusion that the applicant was not a credible witness – a conclusion which was open to it. Conclusion 24 The application should be dismissed with costs. I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely. Associate: Dated: 22 June 2001 The applicant appeared in person Counsel for the Respondent: Ms Backman Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 18 June 2001 Date of Judgment: 22 June 2001