Aper Ali or Afer Ali: The Foreigners Tribunal and ‘Inconsistencies’

This is a guest post by Douglas McDonald-Norman. Douglas McDonald-Norman is a barrister in Sydney, Australia. He predominantly practices in migration and administrative law. He also writes for Law and Other Things.

In their report Designed to Exclude, Amnesty International have recorded the experiences of a man named Abu Bakkar Siddiqui. In 2016, he appeared before a Foreigners Tribunal in Jorhat, Assam.

In his deposition, Abu Bakkar said that his grandfather’s name was Aper Ali Sheikh. To prove that his ancestors had been in India before 1971, Abu Bakkar submitted 1966 and 1970 voter lists – in which the name of his grandfather was written as ‘Afer Ali Sheikh’.

The Tribunal found that Abu Bakkar could not prove that his grandfather Aper Ali Sheikh had ever existed. It rejected his explanation that Aper Ali Sheikh and Afer Ali Sheikh were the same person, saying that this explanation had been made ‘too late in the day’. His attempt to seek review in the Gauhati High Court was dismissed.

This is absurd. But it is not an isolated or uncommon incident. As Amnesty International have reported, in many cases Foreigners Tribunals have rejected applicants’ claims to be who they say they are, or have rejected their accounts of their lives and the lives of their families, based on minor or easily explicable inconsistencies – spelling, dates, typographical errors.

These practices have international parallels. Around the world, courts and tribunals engaged in ‘refugee status determination’ (that is, the process of working out if asylum seekers are entitled to protection as refugees) have frequently relied on ‘inconsistencies’ of these kinds to find that asylum seekers are not telling the truth about who they are or why they claim to fear harm if returned to their countries of origin. Some of these inconsistencies may be explained by fear, shame or inevitable loss of detailed recollection over time (or because of trauma). Other inconsistencies (particularly in documents) may be explained by the context from which an asylum seeker has fled; bureaucracies in their country of origin may have flawed record-keeping practices, or the asylum seeker may not be able to access any corroborative documents because those documents are held by precisely the people they fear will persecute them.

In Foreigners Tribunals, as in refugee status determination, we see decisions being made based upon dubious, harsh or even absurd reasoning, particularly in relation to inconsistencies or errors in applicants’ narratives or documents. How can we use legal frameworks, advocacy and review to challenge these practices?

People stripped of nationality by Foreigners Tribunals can seek review in the Gauhati High Court or the Supreme Court of India. But this review is on limited terms. As the Gauhati High Court explained in State of Assam v Moslem Mondal, a petitioner seeking writs of certiorari to quash a decision of the Foreigners Tribunal must establish that the Tribunal’s decision is affected by jurisdictional error.

The High Court’s judgment in Moslem Mondal takes the concept of ‘jurisdictional error’ further than that in some other common law nations. Justice B. P. Katakey noted that jurisdictional error may arise where reasons for a given exercise of power are ‘inconsistent, unintelligible or inadequate’, in addition to the standard, more orthodox grounds of jurisdictional error – ‘application of a wrong legal test to the facts found, taking irrelevant consideration into account and failing to take relevant consideration into account, and wrongful admission or exclusion of evidence as well as arriving at a conclusion without any supporting evidence’. But the relevant test in the Gauhati High Court is still a question of legal error – mere unfairness or harshness do not suffice, and it is not enough that the Court could (or even would) have made a different decision if it were sitting in the place of the original decision-maker.

How, then, can we challenge the use of trivial or absurd inconsistencies within this framework of jurisdictional error?

In Australia, judicial review of migration decisions is only available where the purported decision is affected by jurisdictional error (that is, that it is beyond the power of the agency which purportedly made the decision). Jurisdictional error may arise on equivalent or similar grounds to those identified by Justice Katakey – for example, failure to consider relevant considerations, findings based on no evidence or misapplication of a relevant legal test. Equivalent to India’s basis for review of ‘inconsistent, unintelligible or inadequate’ reasoning, decisions in Australia may be challenged because they rely on unreasonable, illogical or irrational findings – but this is a high threshold to clear. It requires more than merely establishing that a different finding could have been made; it must be established that the finding, or the exercise of power, is one which no reasonable decision-maker could have made.

But in Australia, we can see examples by which arbitrary or harsh decision-making practices can be restrained through the creative use of traditional grounds of judicial review. Where, for example, a decision-maker relies on ‘unwarranted assumptions… as to matters relevant to the formation of a view on the credibility of a corroborative witness, the decision-maker may constructively fail to consider relevant considerations arising from the material before it (There are parallels, in this regard, with reasoning in Moslem Mondal itself – in which Justice Katakey found that in one of the decisions challenged ‘[t]he learned Tribunal did not appreciate the evidence on record in its proper perspective, thereby refusing to take into consideration the relevant piece of evidence’). Similar reliance on ‘unwarranted assumptions’ may mean that the decision is illogical or irrational, or that a decision-maker has made findings with no basis in the evidence before it.

The ‘unwarranted assumptions’ argument is not a new basis for judicial review or jurisdictional error. It is merely a different way of understanding and applying traditional grounds – failure to have regard to relevant considerations, making findings on the basis of no evidence, and ‘unreasonableness’.

Advocates and activists working to reform the Foreigners Tribunal can similarly reshape traditional grounds of judicial review to restrain abuses of the Tribunals’ fact-finding function, even with the limited tools left available to them by Moslem Mondal. When a Tribunal relies upon an absurd or exceptionally minor inconsistency (like a typographical error on a document), even the traditional grounds of judicial review may permit the Court to question whether there is a logical or probative basis for any adverse finding made as a result, or to question whether an ‘unfounded assumption’ that the document would invariably have been accurate as transcribed prevented the Tribunal from properly having regard to the evidence before it. When a Tribunal relies on a difference between general and specific accounts of the same thing, the Court may question whether the Tribunal’s misunderstanding or mischaracterisation of the evidence has led to a constructive failure to consider that evidence, or a failure to consider necessary questions arising from that evidence. These may seem like frail instruments to reform broader abusive or unjust practices by the Foreigners Tribunals, and may seem entirely inadequate to address the fundamental injustice at the heart of that system. But, over time, these grounds of review can be used to set clear limits on how the Tribunals function and how they make decisions. These limits to the fact-finding powers of the Tribunals can protect vulnerable individuals from abusive and arbitrary exercises of power.

The Rise of the Indian Detention Regime

This is the first in a three-part series of guest posts by Paresh Hate. Paresh Hate is a PhD candidate at Centre for Comparative Politics and Political Theory, Jawaharlal Nehru University, New Delhi. Their work revolves around critically engaging with the discourse of ‘Bangladeshi infiltrator’ in Indian politics by looking at immigration detention and immigration law as sites of its cultivation, deployment and legitimization. Paresh is the digital editor for Migrant Solidarity Network – India and is a founding member of Hasratein: a queer collective, LGBTQIA+ resource group and political organisation based in New Delhi, India.

After the news of the National Register of Citizens (NRC) in Assam was published in 2019 and the proposal for an all-India National Register of Citizens by the Home Minister of India was announced, detention centres had finally become a part of the resistant imaginary of civil society groups and activist circles. Until then, this sensitization and recognition was limited to groups in Assam fighting for the civil liberties of people languishing in the detention centres for prolonged periods and some organisations in other metropolitan areas trying to produce data on it. With the passing of Citizenship (Amendment) Act, 2019 and the promise of NRC, there were widespread protests across India that foregrounded the demand that detention centres must go.

While the ruling party and the opposition have continued their debates about the who and when of detention centres, much misinformation has been spread. There is now substantial information in the public domain with regard to the six detention centres in Assam. This is because of the report on the National Human Rights Commission Mission to Assam’s Detention Centres, carried out by Harsh Mander and others, which was subsequently also submitted as a petition in the Supreme Court to ameliorate the conditions of detention centres there. However, neither is immigration detention exclusive to the current fascist government employing it in some extra-judicial realm, nor are the detention centres only operational in Assam. Detention, as a strategy to govern unauthorized migrants, goes to the heart of our immigration law system and has been in place for decades.

Notwithstanding the fact that the first de facto detention centres were built in the state of Assam under High Court’s orders of 2008 for detaining declared foreigners, many confinement centres for immigrants preceded this time period. Some or the other form of such confinement centres for unauthorized migrants has been in place since at least mid-2000s and have been employed for both punitive and non-punitive purposes.

In countries of the Global South such as India, the criminalisation of irregular migration as a measure, like its other politico-legal institutions, is undoubtedly and obviously enmeshed in a history of colonialism and power that goes beyond a simplistic framing of rule of law. There are two distinct points about the trajectory of immigration control that demonstrate its relation with modern colonial history. The first is that the techniques of law that India currently employs have been cultivated during British colonialism in India itself. This is true for three of the four major acts that constitute immigration law in India. These are the Passport (Entry into India) Act (1920), the Registration of Foreigners Act (1939), and the Foreigners Act (1946). All three of them have been argued as “acts of Empire” whose original function was to regulate the migration of colonised subjects across the various colonies and Dominions and thereby restrict their ability to migrate into privileged geographies of the colonising powers.

The second point about regulation of migration is tied to post-World War 2 period and subsequent globalization, where cultures of penalty such as immigration detention travelled like other things across the world. What is now clear is that the inception of detention took place primarily during the late 19th century in the United States. Contemporary scholars are today certain that the creation of modern immigration detention begins with the normalization of regulated borders in America and the United Kingdom. Prior to this, the routine method to deal with foreigners were preventive exclusions through often racist laws that disallowed people from certain racialized communities and nations to enter the country. In cases where such foreigners were found to be residing in the nation without adequate documents, they would be expelled through measures such as deportation or push-back. The establishment of the border as a site of political control grew alongside both centralization and monopolization of power over mobility. In the late 19th century, immigrant detention was used for the first time as a legal exception treated as a temporary administrative check-point until the final decision regarding the fate of the immigrant foreigner was made. Over time, with the growing number of immigrants in the United States, detention started acting as an administrative strategy deployed for longer periods, often against racialized migrants until it became a common response during World War 1 to treat foreigners fleeing their country and foreigner soldiers. This later conflation was much more prevalent in the United Kingdom where anti-alien sentiment demanded substantive politico-legal moves to create some system to permanently control foreigners. Until then, immigration detention used was neither seen as penal nor as any form of imprisonment. Since World War 2, however, immigration detention across most countries has become a legislative policy and a permanent bureaucratic enterprise.

This period where immigration control and defining citizenship became of paramount importance was the period in which many erstwhile colonies were transitioning into sovereign nation-states. Both in Asian and African countries, but also in erstwhile colonizing metropoles which were becoming proper nation-states now, the question of the self and the other of the political community was essential and urgent. Yet, the political logic that was inherent to many of these decolonizing movements prioritized autochthony, which is to say that the original inhabitants of the land who were the natives of that region had the right to self-determine its own political future. This kind of political context necessitated, as it still does, differentiating between a foreigner and a citizen.

In Global South countries such as India, because of the political and economic conditions, this has meant the focus is on the informal movement of low-wage migrants across spatially contiguous states and within the region which is particularly vigilant–due to the suspicion generated by the history of partition–of Muslims from the neighbouring countries (particularly erstwhile East Pakistan and now Bangladesh), who are treated as “infiltrators” as far as popular psyche, dominant nationalist political ideologies, and state institutions are concerned.

One year before the independence, laws were put in place to decide the conditions under which a movement is legitimate. After the independence, the connotations of British rule were dropped while keeping the entire law as it is. With the Foreigners Act, 1946 enacted, there were provisions for punitive measures to employ in case of transgressors to this law and this penalty included detention also. The politico-legal powers of the state that legitimized detention centres are authorized under the Foreigners Act, 1946, and the Foreigners Order, 1948. Section 3(2)(e) of the Foreigners Act, 1946 states that the foreigner:

“[S]hall comply with such conditions as may be prescribed or specified— (i) requiring him to reside in a particular place; (ii) imposing any restrictions on his movements;”

In addition to this, para 11(2) of The Foreigners Order, 1948 allows the civil authority to impose restrictions on the foreigners’ movement.

While until the early 21st century, detention centres have meant makeshift spaces which are otherwise typical prisons, there has been a rise of many sites since early 2000s which are used as functional detention centres, managed by Border Security Force stations, shelter homes looked after by state governments, Foreigners Regional Registration Office sites, etc. What the criminalisation of irregular migration and use of detention as a punitive strategy since the inception of immigration law shows is that nowhere in the last hundred years at least have the detention centres been used simply as temporary administrative check-points, but instead have been an integral part of the criminal immigration (or crimmigration) system. Here, detention centres are spaces that thwart mobility and control the perceived “excessive mobility” of the unauthorized migrants by responding with total confinement and putting a stop to their movement itself.

Today as well, migrants who have been detained for immigration-related transgressions face severe legal adversities and their troubles have only increased after the NRC has been announced. With the regime in power attempting to build more detention centres qua detention centres across the country for “illegal infiltrators”, and with a relative absence of proper repatriation treaties with  neighbouring countries, the Indian immigration system is perhaps most likely to deal with migrant foreigners, among others, with detention as one of the preferred modes of penalty. While detention centres began in India as instruments peripheral to immigration control, they have now, under the current regime, transformed into a bureaucratic enterprise that is central to the state apparatus’ program of governance over Bengali-speaking, Muslim and migrant populations, and will give rise to a new detention regime that will be initiated now with the project of NRC.