Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 826

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 826

MIGRATION – protection visa – application for review of decision of Refugee Review Tribunal – question of fact GURPAL KUMAR SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS W 224 OF 2000 HEEREY J 26 JUNE 2001 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W 224 OF 2000

BETWEEN: GURPAL KUMAR SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE OF ORDER: 26 JUNE 2001

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the respondent's costs, 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

WESTERN AUSTRALIA DISTRICT REGISTRY W 224 OF 2000

BETWEEN: GURPAL KUMAR SINGH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: HEEREY J

DATE: 26 JUNE 2001

PLACE: PERTH

REASONS FOR JUDGMENT 1 The applicant seeks review under Pt VIII of the Migration Act 1958 (Cth) of a decision of the Refugee Review Tribunal which affirmed a decision of the delegate of the Minister not to grant him a protection visa. The applicant was born in India on 21 October 1977 and he came to Australia by boat to Ashmore Reef, apparently without any passport or other travel documents. 2 The basis of his claim to be a refugee was based on political opinion; namely, support of the Bahujan Samaj Party (BSP) in Punjab. His involvement was said to have been mainly assisting his father. However, in the course of later documents filed in the course of his application, he claimed to be a supporter of the Khalistan Freedom Fighters, a terrorist organisation fighting for a separate Sikh state. 3 The Tribunal reviewed the evidence in a way which indicated considerable scepticism about the truthfulness of the applicant's claim. Under the heading "Findings and Reasons" the Tribunal said: "I am satisfied that the applicant is a citizen of India and that he is outside the country of his nationality. I accept that he comes from the Punjab and is a Sikh by religion. He claims in essence to have a well-founded fear of persecution by reason of his political opinion, be it his membership of the BSP or his more recent claim to be an active supporter of the Khalistan Freedom Fighters. I am satisfied that he and his father were members of the BSP and that at election time he assisted his father in campaigning for that party both within the Punjab and in the neighbouring state of Uttar Pradesh. This is a minor, but lawful party. However, I do not accept that either he or his father suffered any persecution by reason of those political activities. At the compliance interview he claimed to have very little knowledge about his father's political activities and the source of any threat to his father and himself. This is by itself of little significance since one cannot reasonably expect detailed claims to emerge at such an interview. In his statement made on 31 May 2000 after being interviewed by his advisers he referred vaguely to harassment by other parties. In his interview on 21 June 2000 he referred generally to threats made by members of other parties at election time. However, they had lessened after the 1997 elections. I accept that in Indian election campaigns a certain degree of intimidation may occur. However, there was no evidence of any actual harm suffered in consequence during the more than two years after the 1997 elections. It was not until the hearing on 16 November 2000 that he made a specific allegation, namely, that the source of the threats was a Jogindher Singh Mann MLA who represented the state seat of Phagwara for the Congress Party. This person was defeated in the state elections in 1997 and the seat is now held by Swanar Ramm of the BJP. The applicant seemed unaware of this and when confronted claimed that the information was false. The applicant then made the surprising allegation that not only had the Congress MLA accused him of being a supporter for Khalistan Freedom Fighters, but this was in fact true. This had not featured in any previous statement and his explanation that he was too frightened to tell earlier interviewers is unconvincing. What is more, the newspaper cutting which he tendered as referring to an incident in which he was accused in being involved does not appear to relate to him and his family at all. His claim that his father had been arrested since the applicant left India is equally unconvincing. He has failed to produce the letter in which he was informed although he claimed to have it at the detention centre. He has also failed to give me the address of the BSP official who advised him. As he acknowledged the BSP is essentially a party for the disadvantaged castes of the Hindu religion. It is not a Sikh based party although I accept that Sikhs can also belong to it. However, I cannot accept that such a party or a substantial group of its members are likely to be supporters of a Sikh separatist movement. Whatever may have been the reason for his journey to Australia I do not accept that there is any chance of persecution for a Convention reason should he return to India." 4 Although the applicant was not represented before me solicitors acting pro bono prepared an amended application for review dated 26 April 2001 and an outline of submissions dated 22 June 2001. The amended application for order review stated as a ground a failure to observe procedures and error of law: s 476(1)(a) and (e). It was said that the decision of the Tribunal was a constructive failure to exercise jurisdiction, a decision involving an incorrect application of the applicable law and a failure to act in accordance with the procedures required by law. 5 Particulars of those grounds were (1) the Tribunal did not properly, genuinely and realistically consider the merits of the applicant's claim for refugee status in that inter alia it made no decision or finding on the questions of whether (a) the applicant had been accused of being a supporter of the Khalistan Freedom Fighters; and (b) the applicant was a supporter of Khalistan Freedom Fighters when those questions were important to, if not decisive of the decision; (2) alternatively the reasons of the Tribunal did not set out any finding on material questions of fact on the issue of the Khalistan Freedom Fighters and did not refer to evidence or other material on which findings of fact were based. 6 In their outline of submissions the solicitors elaborated on those grounds. They conceded that the decision of the High Court in Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30 affected the grounds of the application to some extent. However, it was said that the decision of the Tribunal was still quite "legally flawed". It was said the failure to make a finding on the Khalistan Freedom Fighters issue was an error of law, citing Yusuf at [37], [83], [84] and [95] and there was a constructive failure to exercise jurisdiction. Alternatively, it was said to be implicit that a finding was made on that issue but that no finding was recorded: Yusuf at [77] and [89]. 7 It is clear in my opinion that the Tribunal did consider the issue of whether the applicant had been a member of the Khalistan Freedom Fighters and made a finding of fact in relation to that. There is no requirement for the Tribunal to use any particular form of words. Read in context there is no doubt that the Tribunal did not accept what the applicant said as to that, particularly in the light of the lateness of the allegation made. 8 Insofar as there was a failure to set out findings on material questions of fact, that ground is no longer available in the light of Yusuf. Nor is characterisation of a Tribunal decision as not giving "proper, genuine and realistic consideration", to an applicant's claim maintainable in the light of the decision of the Full Court in Minister for Immigration and Multicultural Affairs v Anthonypillai [2001] FCA 274. 9 The applicant, through an interpreter, raised a number of other complaints in the course of the hearing. One of these was that the interviewer, before the Tribunal, spoke Hindi rather than Punjabi. However, at a time when the applicant was represented, solicitors on his behalf in the form submitted to the Tribunal on 30 October 2000 in preparation for the hearing indicated that a Hindi interpreter was required. Further, the applicant did not suggest there was some particular respect in which inadequacy of translation resulted in the Tribunal making a finding adverse to him. He said that there were documents that he was not able to show the Tribunal, one of which he showed by the video-link. He said this was a map of Kalistan, and he said that a person who possessed this map will be killed if he is found with it in India. 10 As counsel for the Minister said, and I do not take this as being cynical or flippant at all, it would obviously follow that anybody returned to India would need to take care not to be in possession of such documents if the risk be as the applicant says it is. 11 The applicant also complained about not being able to put other documents to the Tribunal. There is no hint of this in the reasons of the Tribunal itself, or in the application for an order for review which is prepared by solicitors on the applicant's behalf. Nor was there any mention to the Tribunal of what he now asserts to be a conversion to the Christian religion. 12 I am not satisfied that the applicant has made out any grounds for review. The application will be dismissed. There will be an order that the applicant pay the respondent's costs.