Dhiman v Minister for Immigration & Multicultural Affairs [2000] FCA 221

FEDERAL COURT OF AUSTRALIA

Dhiman v Minister for Immigration & Multicultural Affairs [2000] FCA 221 MIGRATION – application for protection visa – claim of well-founded fear of being persecuted for reasons of political opinion – review of decision of Refugee Review Tribunal – whether Tribunal failed to make findings on material questions of fact – whether Tribunal erroneously required corroborating evidence and imposed an onus of proof on the applicant – whether Tribunal required to ask "what if I am wrong?". Migration Act 1958 (Cth) ss 430(1), 476

Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411, cited Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741, cited Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681, cited Luu v Renevier (1989) 91 ALR 39, cited Minister for Immigration and Multicultural Affairs v Singh [1997] FCA 355, cited Prasad v Minister for Immigration and Multicultural Affairs (1985) 6 FCR 155, cited Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559, applied Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, applied PARVINDER DHIMAN v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS N 1135 OF 1999 SUNDBERG, KATZ and HELY JJ 8 MARCH 2000 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1135 OF 1999

BETWEEN: PARVINDER DHIMAN

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SUNDBERG, KATZ and HELY JJ

DATE OF ORDER: 8 MARCH 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs of the appeal. 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 1135 OF 1999

BETWEEN: PARVINDER DHIMAN

APPELLANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES: SUNDBERG, KATZ and HELY JJ

DATE: 8 MARCH 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT OF THE COURT BACKGROUND 1 The appellant is a 26 year old Indian national of Sikh religion and ethnicity from the Punjab region who entered Australia on an Indian passport on 30 December 1996. On 22 January 1997 he applied for a protection visa on the basis that he feared persecution by reason of his actual or imputed political opinion. His application was refused by the respondent's delegate. The refusal was upheld by the Refugee Review Tribunal. An appeal to this Court was dismissed by Madgwick J, and the appeal is from that decision.

THE APPELLANT'S CLAIMS 2 Although the appellant said he was merely a "lower level" supporter of the Sikh self‑determination movement, he had become a target for various organs of government in India because he was friendly with activist leaders of the movement and gave them assistance. In March 1994 he was arrested while in Calcutta, handed over to the Punjab State Police and falsely charged with possessing weapons. He was badly tortured by the police. After two months' detention without being brought before a court, his father arranged his release on bail through bribery. One of the appellant's activist friends had been "liquidated" after being arrested. The appellant "escaped" from the Punjab region back to Calcutta. In August 1995 the Chief Minister of Punjab, Mr Beant Singh, was murdered. Sikh militants were blamed, and a repressive operation known as "Operation Cream" was mounted by the police and other official organs against "all youth activists" of the All‑India Sikh Student Federation of which the appellant had been a member. The Punjab police were "hunting" such people outside Punjab and "nothing was safe". Later the appellant's father paid people to help the appellant flee India. The appellant claimed there is a "climate of impunity" for Punjab police officers which has been "deeply ingrained over many years". It will take a long time before they become a disciplined force with respect for human rights. The appellant claimed he was at risk of being targeted by the police because of his involvement in the Student Federation and his links with high profile Sikhs suspected of terrorist activities. The combination of his past torture and the propensity of the Punjab police to seriously mistreat suspected Sikhs meant he had a well‑founded fear of persecution because of the political opinion they would impute to him. 3 After the appellant arrived in Australia and applied for a protection visa his father died of a sudden cardio-respiratory arrest after a period in hospital. He had been admitted to hospital following his having been brought, unconscious and bleeding from the ears, to a medical facility. On admission to that facility he had been diagnosed as having a head injury. The appellant produced letters from his mother and a friend suggesting that his father had died of police‑inflicted injuries. They said the police came to his parents' home to question them about the appellant and took his father away to a police station when his father denied having relevant knowledge about the appellant. Four days later the father was found unconscious at a playground. The letters asserted that the police had had a continuing interest in the appellant.

OTHER EVIDENCE BEFORE THE TRIBUNAL 4 From the early 1980s the Punjab region was unstable and violent, following the emergence of Sikh separatist groups and the assassination of the Prime Minister of India by Sikh bodyguards which triggered serious communal violence. In the early 1990s there were extensive human rights abuses in Punjab committed by and against Sikh activists, which also affected innocent bystanders. In 1992 Mr Beant Singh became Chief Minister of Punjab. His regime gradually brought about increased political stability and economic prosperity. After his assassination in 1995 renewed police excesses occurred during the investigation of his death. By late 1995 officers from Australia's embassy in New Delhi predicted that these excesses were unlikely to continue for long, and considered that the force of the militant Sikh movement had dissipated. The Documentation, Information and Research Branch of the Immigration and Refugee Board, Ottawa, in a 1997 paper on the Punjab, stated:

"… Sikh militancy in the Punjab has been virtually eliminated, and … all or almost all remaining militant leaders appear to have left the state and the country … groups like the All India Sikh Student Federation … have in recent years denounced the use of violence and committed themselves to only pursuing a peaceful political agenda ….

… people who are not high profile militant suspects are not at risk in the Punjab today. … the high‑profile suspects might include a perceived leader of a militant organization, or someone suspected of a terrorist attack. … Sikhs with some slight perceived connection to the militancy – through a family member, for example, would not now be targets of the Punjab police. … there were only a few high profile militant suspects left, with virtually none remaining in Punjab or India itself. … a high profile individual [is] someone suspected of anti‑state activities by the Indian authorities. … a family member of such a person or someone who was forced to provide shelter for militants during the height of the insurgency would not now be considered a high profile suspect. … those without a high profile have much less to fear from the Punjab police, and now have much better access to judicial recourse if they are treated improperly. … simply holding a pro‑Khalistani opinion, for example, would not make an individual a high profile suspect; one would have to engage in violent anti‑state acts."

THE TRIBUNAL'S DECISION 5 The Tribunal accepted that the appellant, like many thousands of Sikh youths at a time of severe repression of Sikh militancy, was detained and mistreated. However it did not accept that he could now be considered a high profile militant in danger of detention and persecution upon return to India. The Tribunal placed reliance on the independent evidence of improved conditions recorded in the preceding paragraph. The Tribunal noted that the appellant lived in Calcutta for some three years working for the same company, and was never detained or questioned. He was issued with a passport and left India legally. 6 As to death of his father the Tribunal said:

"While the medical certificates tendered by the applicant attest to the fact that his father died of a head injury and sudden cardio‑respiratory arrest, it is only the letter from his mother and a friend that provide corroboration to the applicant's oral evidence that his father had been detained by the police and assaulted due to their making enquiries about the whereabouts of the applicant. The Tribunal is not satisfied as to the veracity of the applicant's claims as to the cause of his father's death."

PRIMARY JUDGE'S DECISION 7 The grounds of review argued before the primary judge were that the Tribunal:

· failed to make material findings of fact concerning the manner of the father's death as required by par 430(1)(c) of the Migration Act 1958 (Cth);

· failed rationally to consider the evidence about the father's death;

· failed to cause further enquiries to be made as to the circumstances of the death before rejecting the appellant's evidence;

· erroneously required corroborating evidence as to the cause of death and imposed an onus of proof on the appellant;

· failed to ask "what if I am wrong?" about the father's death.

The primary judge was of the view that the second of these grounds was not an available ground of review: Minister for Immigration and Multicultural Affairs v Epeabaka (1999) 84 FCR 411 (Black CJ, von Doussa and Carr JJ), and that none of the other grounds was made out.

THE APPEAL 8 On the appeal, the appellant did not include as a ground of appeal the second of the grounds raised before the primary judge, although he did include the other four grounds. Further, on the hearing of the appeal, he abandoned the third of the grounds raised before the primary judge. It is therefore necessary for us to deal only with the first, fourth and fifth of the grounds raised before the primary judge.

FINDINGS ON MATERIAL FACTS 9 The primary judge appears to have assumed that a failure to comply with par 430(1)(c) is a ground of review under subs 476(1), presumably par (a) thereof. We will assume, without deciding, that it is. Compare Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741 (Whitlam, RD Nicholson and Gyles JJ; unreported; 17 December 1999) with Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681 (Heerey, Merkel and Goldberg JJ; unreported; 2 December 1999). In our view the Tribunal complied with the obligation imposed by par 430(1)(c) to set out its findings on material questions of fact. They were:

· the appellant had been detained and mistreated by the authorities;

· the appellant was not a high profile militant who would be in danger of detention and persecution upon return to India;

· the appellant did not hold office in the Sikh Student Federation but was a mere member who only helped transmit messages and sheltered militants in the past when Sikh activism was at its height;

· the police did not have a continuing interest in him;

· he had lived in Calcutta for three years without being detained or questioned;

· he was issued with a passport and left India legally;

· the police are now being disciplined for human rights abuses in the Punjab;

· the level of police harassment has declined significantly in the face of the decline in Sikh militancy and the election to government in the Punjab of the Sikh Akali Dal Party;

· the appellant's family no longer continued to be harassed by the police;

· the appellant's father died of a head injury and sudden cardio‑respiratory arrest;

· the father did not suffer injury at the hands of the police because of their interest in the appellant.

These findings amply satisfied par 430(1)(c). The appellant made particular complaint that the Tribunal had not set out its findings on the matters raised by the death certificate and the letters referred to in par 3. In our view the Tribunal did set out its findings on those matters. It accepted that the death certificate established that the father died of a head injury and sudden cardio‑respiratory arrest. The letters were the source of the suggestion that the father suffered injury at the hands of the police because of their interest in the appellant. The Tribunal accepted the letters as authentic, but did not accept the assertion in them that the father's injury was inflicted by the police because of their interest in the appellant. See the last two findings set out earlier in this paragraph, and the extract from the Tribunal's statement of findings and reasons set out in par 6. It was submitted for the appellant that it was not sufficient for the Tribunal to say it did not accept the assertions in the letters. It was necessary that it find positively that the assertions were untrue. The Tribunal was not obliged to take that extra step. As the Full Court said in Kopalapillai v Minister for Immigration and Multicultural Affairs (1998) 86 FCR 547 (O'Connor, Branson and Marshall JJ), the Tribunal is not required to hold a "positive state of disbelief" before making an adverse credibility assessment.

10 Although the appellant did not develop any case under par 430(1)(d), that paragraph is mentioned in his Notice of Appeal. All we need say about that is that in our opinion the Tribunal referred to the material on which the above findings were based.

CORROBORATION AND ONUS OF PROOF 11 The appellant contended before the primary judge that there is no requirement that any part of a claimant's evidence be corroborated, and that the Tribunal erred in requiring corroboration concerning the reason for the father's death. It was also submitted that the Tribunal had imposed an onus of proof on the appellant. These were said to be errors of law within par 476(1)(e). We have set out in par 6 what the Tribunal said on this point. In rejecting the corroboration complaint the primary judge said:

"[T]his was not a case of refusal to accept an applicant only because the applicant had not corroborated his account, but, rather an instance of a weighing of the applicant's own evidence and evidence corroborating it against other evidence. The Tribunal evidently found the latter preferable."

As is apparent from the passage from the Tribunal's statement of findings and reasons set out in par 6, it did not require corroboration of the appellant's account. It rejected that account even though it was corroborated. There is no substance in the complaint that the Tribunal imposed an onus on the appellant. An applicant must of course persuade the Tribunal that all the statutory elements for a protection visa are made out. See Minister for Immigration and Multicultural Affairs v Guo (1997) 191 CLR 559 at 597-8 (Kirby J).

WHAT IF I AM WRONG? 12 The complaint here was that the Tribunal had failed to consider whether it might be wrong as to its conclusion about the reason for the father's death. As the primary judge said, where the Tribunal has found facts on the basis that they are slightly more probable than not, it should ask itself whether it might be wrong. But where it has no real doubt as to a finding, there is no such obligation. See Guo and Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24 at 52‑53 (Merkel J). The appellant submitted that the Tribunal made no explicit findings rejecting the evidence of his mother and sister or as to the authenticity of the letters. The Tribunal said it was "not satisfied as to the veracity of the applicant's claims as to the cause of his father's death". That is an explicit finding that it did not accept that his evidence was true. The Tribunal's rejection of the appellant's claim as to the cause of his father's death was a positive and unqualified finding. Counsel for the appellant submitted that on the material before it the Tribunal could not have made such a distinct finding. But that is not the question that arises in the present connection. The question is whether the finding is in fact a positive and unhesitant one. We think it is. We agree with the primary judge that there was no occasion for the Tribunal to ask itself what the position would have been if the relevant finding was wrong. It is true that the Tribunal did not expressly find that the letters were authentic. It simply proceeded on the basis that they were. The Tribunal is not obliged explicitly to formulate all its findings. It can make implicit findings such as that in question here. See A v Minister for Immigration and Multicultural Affairs (1999) 53 ALD 545 at 557, [54] (French, Merkel and Finkelstein JJ). We need say no more on this point because the fact that the finding as to the authenticity of the letters was implicit rather than explicit does not bear on the "what if I am wrong?" issue.

CONCLUSION 13 None of the grounds of appeal has been made out, and the appeal must be dismissed. I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Associate: Dated: 8 March 2000

Counsel for the Appellant: A Cotter-Moroz

Solicitors for the Appellant: Ramrakha Jenkins

Counsel for the Respondent: G T Johnson and D Godwin

Solicitor for the Respondent: Australian Government Solicitor

Date of Hearing: 28 February 2000

Date of Judgment: 8 March 2000