A v Refugee Review Tribunal

[1998] FCA 396

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 16  of   1997

BETWEEN:

"A"
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
SECOND RESPONDENT

JUDGE(S):

HILL J

DATE OF ORDER:

17 APRIL 1998

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The Applicant pay the Respondent’s costs.

3. The name of the Applicant not be published and not be disseminated beyond those today in Court, the legal advisers and the parties.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 16 of 1997

BETWEEN:

"A"
APPLICANT

AND:

REFUGEE REVIEW TRIBUNAL
FIRST RESPONDENT

MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
SECOND RESPONDENT

JUDGE(S):	HILL J
DATE:	17 APRIL 1998
PLACE:	MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT

The applicant, Mr A, appeals to the Court (the appeal being by way of judicial review) from a decision of the Refugee Review Tribunal, constituted by Mr Glaros, in which the Tribunal found it was not satisfied that he and his daughter were refugees. The Tribunal thus affirmed the decision of the second respondent, the Minister for Immigration and Multicultural Affairs, not to grant to them protection visas. 

The Tribunal set out in some detail what it referred to as "claims and evidence" advanced by Mr A on behalf of himself and his daughter.  Some of those claims were perhaps controversial and not all of them were ultimately accepted by the Tribunal.

Mr A is a national of India who entered Australia on 31 October 1993 as a visitor.  He is a doctor in chemical engineering and a Sikh who, prior to coming to Australia at least, lived in New Delhi. 

It seems that he supported the Khalistan movement when it started in 1984, although the precise role he took in it, as he claimed, was not accepted in whole by the Tribunal.  It suffices here to say that it would be common ground that there were riots in New Delhi in 1984 following the assassination of the Indian Prime Minister Indira Ghandi and as a result Sikhs were undoubtedly killed and their houses and temples destroyed.  Mr A, in claims initially made to the Department of Immigration, set out his role initially as a messenger or as a conveyor of messages perhaps, who had come to the notice of the police who had questioned him.  He claimed to have taken leave and worked for a company under a false name until policemen became suspicious of him and searched him.  He resigned in 1992, sought a passport, paid a bribe and, ultimately, travelled to Australia.  It was his position before the Tribunal that relocation to another state was not possible as he was easily distinguished as a Sikh by his turban and subject to what he claimed to be violent action, as had happened in the past.

There were additional matters put to the Tribunal, including that Mr A had assisted those who planned to kill General Vaidya and young boys sent out of the Punjab to escape the police.  He said that another activist who had been caught in 1992 had disclosed Mr A’s name to the police, who now know he is in Australia and out of their net.  As part of the evidence in his case, but submitted after the hearing, Mr A produced a letter (handwritten) from a Mr Gajinder Singh, the chairman of an organisation referred to as Dal Khalsa International, which stated that Mr A was a long-standing member of that organisation who had worked in the intelligence wing of it and that he had left India to avoid arrest and would be in danger if he returned.  Nothing in Mr A's evidence referred directly to Dal Khalsa International or his being a member of it or involved in the activities which the letter refers to.

The Tribunal, although with some reservations, accepted that Mr A had a subjective fear of persecution.  However, it did not accept, that is to say, it was not satisfied that his fear of persecution was well founded within the meaning of the terms of the United Nations Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, made applicable by force of criteria to be found in the Migration Regulations.  As I read the reasons of the Tribunal, it found Mr A not to have a well-founded fear for two separate reasons.  The first was the Tribunal's reliance upon various reports, including those from the United States State Department and the Australian High Commission, which suggested that there had been a real improvement in civil rights matters in the Punjab.  For example, the Australian High Commission, in the most recent advice it had given dated 8 May 1996, said:

“We can confirm our advice that there has been a wholesale political resolution of the separatist problems in the Punjab, a quantum leap in state officials' awareness of human rights issues and in their recognition of the need to eliminate practices which breach India's human rights obligations ...

Controversial State Police Chief, K.P.S. Gill has been replaced by another highly respected and experienced officer who has a reputation for being meticulous in enforcing police officers' observances of correct procedures and human rights obligations.”

The second matter to which the Tribunal referred, although it had in respect of the first matter concluded that it was satisfied there was only a remote chance in the future of a revival of militarism and government reaction to it in the form in which it had existed until 1992, was the Tribunal's view that, in part at least, it did not believe a considerable amount of Mr A's evidence.  Its reasons for not believing Mr A were largely that a good deal of it was not initially disclosed in interviews which Mr A had with departmental officers.  It took the view that Mr A was both intelligent and fluent in English and that, particularly when pressed to accept that he had disclosed all relevant information, he would have disclosed to those interviewing him matters which assisted his case.  The Tribunal also felt some of the explanations, such as the manner in which Mr A had obtained a passport and gone through passport control, lacked credibility.  The Tribunal's conclusion was thus that the member was satisfied that if Mr A were returned to India, there was only a remote chance of his being persecuted by reason of his Sikh religion or his political opinion.

At the time of making an application to the Court Mr A was represented by a solicitor who prepared a detailed application for review, which was subsequently amended.  There are a number of grounds in that document to which I need not directly refer.  In accordance with orders apparently made by North J, to whose docket the matter had been allocated, Mr A's solicitors filed contentions of fact and law upon which Mr A was to rely, a document which in turn was ultimately amended.  That document and amendments to it were replied to in due course by the Australian Government Solicitor on behalf of the Minister. 

Unfortunately Mr A was not represented when he appeared before me.  He explained to me that it was beyond his capacity to pay for such representation.  While, of course, I understand the financial sacrifice which payment for legal services may often entail, I can only say that it is in the interests of those in the position that Mr A is in to do everything they can to obtain representation for it is very difficult for the Court when unhelped by submissions.  I say this not with any criticism of Mr A.  Indeed, in exchanges with counsel I have expressed the view which I would repeat, that it is to be hoped that both the solicitors and counsel branch of the profession do as much as they can to assist people in the position that Mr A is in, notwithstanding that a sacrifice is, of course, a result of such assistance.  However, at least in this case I have had the advantage of a written document which sets out a lawyer's view of the matters which Mr A wished to put.  Mr A himself made only brief submissions, preferring to rely upon the solicitor's writen submissions.

He did make the point, however, that as far as he could see, other legal precedents to which reference was made in the course of submissions by both parties were all different from his case.  He made the point also that he had not left India, where he was able to practise a good profession, for reasons other than that his life was, he felt, threatened.  He pointed out, although it is a matter upon which there are no findings by the Tribunal and therefore I can not take into account, that there were cases listed for prosecution, and by inference his was one, which would not be withdrawn, with the result that his life might well be threatened either by prosecution or otherwise.  Whether that is the case or not is, unfortunately, not a matter which is within my province.

At the heart of the submissions put on Mr A's behalf is the view that the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 permits an argument to be made both that the rules of natural justice have not been complied with and that an unreasonable decision in the Wednesbury sense can be set aside. The Minister has been granted special leave by the High Court to appeal and, no doubt, those matters, if found ultimately to be relevant to the decision, will be the subject of some discussion when the High Court delivers judgment. One can only hope that the end result is that government tribunals cannot operate unjustly and make unreasonable decisions. I cannot believe that is what the Australian people contemplate and I hope it is not what the legislature contemplated, although it is hard to resist the conclusion that it did.

I do not propose in this case to enter into a discussion of the merits of Eshetu.  If it turns out to be wrongly decided it must follow, of course, that Mr A would fail in respect of those matters.  However, I am prepared for present purposes to accept that Eshetu does permit to be raised before me both issues of natural justice and issues of the power of the Court to set aside a decision unreasonable in the Wednesbury sense.  Making that assumption, I turn to deal with the submissions which the advisers of the applicant have raised.

Evidence in Literature and Governmental Reports

The first matter raised on behalf of the applicant is that the Tribunal failed to afford him natural justice because it failed to disclose to him, prior to the hearing, the substance of what are referred to as “the country information bulletins” or DFAT telegrams, upon which the Tribunal ultimately relied.  The submission points out that Mr A was not represented.  I should say that the content of the rules of natural justice may very well vary between persons who are represented and whose representatives are fully aware of legal consequences, and those who are not represented.  The real problem about the submission is that a perusal of the transcript makes it clear that the substance of the various bulletins, telegrams etcetera upon which the Tribunal relied was in fact communicated to Mr A, although not prior to the hearing but during it.  At page 59 of the transcript, Mr Glaros said inter alia:

“There is a lot of information which indicates that the situation in Punjab for Sikhs is very different now than it was for a few years ago and that would sort of be reflected all over India.”

He referred to a cable in 1993 from the Australian High Commissioner in New Delhi, which is dealt with in the reasons, and other reports in the Far Eastern Economic Review, India: Arms and Abuses in Indian Punjab and Kashmir, The Economist, as well as a later cable from the Australian High Commission, all as confirming that there had been a great improvement leading to what the Australian High Commission referred to as a “wholesale political resolution of the separate problems in the Punjab”.  Reference was made also to other cables of the Australian High Commissioner and United States State Department, “Country Reports on Human Rights Practices for 1995”, to which reference is later made in the Tribunal’s reasons.  These reports also confirmed a matter which the Tribunal also took into account but to which I have not as yet made reference, that relocation to an area outside the Punjab was not likely to present problems.  It is perhaps fair to say that not every one of the written materials to which the Tribunal referred in its reasons is specifically referred to at page 59 of the transcript, to which I have referred.  But the substance of all of the material upon which the Tribunal relied was put to Mr A and there was an opportunity, had Mr A sought to avail himself of it, to adduce evidence of a different kind in opposition.

This is not to say the Tribunal encouraged Mr A to file evidence after the hearing finished, although it did ultimately give him permission to do so in respect of the letter to which I have earlier referred.  Given these circumstances, it is clear enough that the Tribunal drew Mr A's attention to the substance of matters which had an adverse effect on his claim.  This must be sufficient if natural justice is in fact a prerequisite of the way in which the Tribunal is statutorily obliged to give “substantial justice”.  Reference may be made in this connection to two unreported decisions to which I was referred, specifically Nicula v Minister for Immigration & Multicultural Affairs, unreported, Beaumont J, 22 October 1997, and Ntiamoah v Minister for Immigration & Multicultural Affairs, unreported, Davies J, 10 November 1997.

I find no need to consider whether I should follow, and as a matter of comity I would unless shown to be otherwise clearly wrong, the decision of Carr J in Che Guang Xiang v Minister for Immigration, Local Government and Ethnic Affairs, unreported proceedings No. 208/94 where his Honour took the view that if the material not drawn to the attention of an applicant was not “personal to the applicant”, natural justice did not require an opportunity to comment on it.  That view does not seem consistent with the views taken by Beaumont and Davies JJ in the two unreported cases to which reference has already been made.

Failure to have regard to the Substance of the Claim

The second submission was that there was no rational basis upon which the Tribunal could find, on the one hand, that Mr A had a subjective fear of persecution, but on the other, that that fear was not well founded.  The submission says:

“For example the RRT seems to accept that the applicant was questioned by Indian police in 1989 (and perhaps that police questioned the applicant's employer).  The RRT does not consider whether this fact, and others, which it accepts could be the basis of a subjective fear which is well founded, having regard to the circumstances of the applicant.”

In one sense this is a Wednesbury unreasonableness ground.  The logic of it, however, somewhat escapes me.  There is no particular reason why a tribunal might not find that there is a subjective fear, but on the other hand find from objective evidence that fear is not well founded.  The two things are quite distinct aspects of the language used in the convention.  It was open to the Tribunal on all of the material before it to find that objectively, but having regard, of course, to the circumstances of Mr A, the fear he had was not objectively well founded.  On this basis the ground submitted is not made out.

Failure to have regard to the Substance of the Claim by Discounting Evidence of Mr A

The brief submission that is put by the solicitors is that it was contended that the Tribunal failed to have regard to the substance of Mr A's claim by discounting his “claims” (I assume this means evidence) by reference to “recent invention”.  It is said that the Tribunal made no allowance for the difficulty faced by Mr A fearing persecution and being outside his normal country of residence.  Disbelieving a witness can hardly be said to be a failure to have regard to the substance of the witness' claim.

Many might quibble with the proposition that an intelligent English-speaking person will recount everything to a government interviewer when initially interviewed, but the Tribunal took the view, and it was open to it to do so, that essentially Mr A had invented some part of his evidence.  I am not in a position to deal with such a matter.  I have neither heard Mr A give evidence nor do I have power to consider the question.  I can only say that there is nothing appearing from the reasons of the Tribunal which would lead me to the conclusion that it failed to have regard to the substance of his claim.

Mr A's Departure from India

This submission is somewhat more difficult to understand in that it suggests that part of the reasoning of the Tribunal represented a “self-fulfilling prophecy”.  Having regard to the page number which is referred to in the submission, it seems to refer to that part of the evidence where Mr A had suggested the circumstances in which he had left India, involving both a question of bribes and the situation of his daughter's wedding to enable him to pass through passport control, as leading to a conclusion that he had escaped India in this way and using this means of doing so.  The Tribunal did not accept that explanation.  It took the view that it was possible that the authorities might well have been happy to have seen the last of Mr A, who would not then present them with any problems, and that his evidence was equally supportive of the fact that he was not of any real interest in any event to the authorities who, had he been of concern to them, would not, according to the Tribunal, have permitted him to depart.  These are factual matters which are for the Tribunal and not for this Court, and do not disclose any ground upon which review could be successful.

Internal Relocation

The final submission under this heading is that the Tribunal had erred because it did not specify where Mr A might relocate to.  Given the Tribunal's finding that relocation in India outside of the Punjab was a possibility for Mr A and other Sikhs, and that such relocation would not lead to persecution for a convention reason, it is hard to understand why it is said that the Tribunal has not specified where Mr A could relocate to.  The answer implicitly is anywhere but in the Punjab.  It is submitted also that the matter was considered in a vacuum.  With respect, I do not think that is correct.

Errors of Law - Real Chance

It is then submitted that the Tribunal failed to apply the “real chance test”, as for example enunciated in the High Court in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, because it had failed to apply that test to the facts before it and had not assessed what the chances of persecution were. Reference is made also to the well-known case of Minister for Immigration & Ethnic Affairs v Guo (1997) 71 ALJR 743. It must be said that the Tribunal set out extracts from the judgments of McHugh J and Mason CJ in Chan and there is nothing in the reasons of the Tribunal which in any way suggest that it erred in applying the principles of law which it correctly enunciated.  To say, as the submissions do, that the Tribunal had failed to apply the test to the facts or had not assessed what the chances of persecution were, in my view, is an inappropriate approach to the reasons of the Tribunal.  What this submission, and indeed others which follow, really seek to do is obtain from this Court merits review, a matter which the Court is not permitted to undertake.

Interpretation of Convention

It is said that the Tribunal did not interpret the Convention, as amended by the protocol to which I have already referred, in accordance with the principles expressed by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 71 ALJR 381. However, there is nothing in the Tribunal's reasons which indicates such a failure, nor is any explanation given for it. It is said in a general sense that the Tribunal had failed to construe the convention “in an holistic way”.  However, with respect to whoever framed the submissions, there is no suggestion in the Tribunal's reasoning of any failure to do so. 

Interpretation of persecution

The submission is that the Tribunal failed properly to apply the concept of persecution to the facts before it.  It is said, but what is said is not accurate, that the Tribunal did not elaborate why the applicant's fear could not be said to be well founded.  With respect, it did, and for the reasons which I have already indicated, both from the material which it considered from government and other sources in Australia and the United States, as well as newspaper and journal reports, and its assessment of Mr A's evidence, which it did not in whole accept.

Error of law, degree of proof

The next submission is that the Tribunal erred by requiring proof of persecution beyond the test required by the Convention.  Reference is made to what is said to be an expectation of the Tribunal, that Mr A had to prove a subjective fear of persecution on the balance of probabilities.  A reading of the Tribunal's reasons does not suggest it did.  But if it did, it found in his favour in any event.  So the error of law did not disadvantage him.  I should say, lest I be misunderstood in what I have just said, that in general terms questions of onus of proof have no place in administrative decision making unless, as for example in income tax appeals, legislation specifically makes matters of onus relevant.  Administrative Tribunals and administrative decision-makers must have regard to all of the material which is before them in coming to a conclusion about a relevant subject matter.  But that neither involves onus nor standard of proof in any ordinary legal sense. 

Error of Law, Failure to Speculate

The next, and last, submission was that the Tribunal erred in finding that there was no chance that Mr A would face persecution on return to the country of his nationality.  This is not expanded in the submissions, but clearly involves an attempt to have me assess for myself the evidence which was before the Tribunal.  As I have more than once made clear, both in oral argument and in these reasons, I am unable to consider factual matters.  The parliament has committed factual matters to a tribunal and has conferred upon this Court only very limited jurisdiction to consider what may be referred to as legal errors.  In other words, I am bound by the factual decisions which the Tribunal made.  There was evidence open to the Tribunal, that evidence being the governmental cables and articles to which I have already referred which would suggest that Mr A was, though in fear of persecution, not in a position where that fear was well founded.  Whether I would have come to the same conclusion is not relevant for me to say.  It follows that Mr A's application must be dismissed.

Accordingly, I order that:

1. The application be dismissed.

2. The Applicant pay the Respondent’s costs.

3. The name of the Applicant not be published and not be disseminated beyond those today in Court, the legal advisers and the parties.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill

Associate:

Dated:             17 April 1998

Applicant:	In person
Counsel for the Respondent:	Mr R.M. Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	17 April 1998
Date of Judgment:	17 April 1998