Bachara, Rana v The Minister for Immigration and Ethnic Affairs

[1997] FCA 1253

FEDERAL COURT OF AUSTRALIA

Migration - whether Tribunal brought an independent consideration to the specific circumstances of the matter before it - whether matters raised by applicants involved questions of fact.

Chan v The Minister (1989) 169 CLR 379 - appl.
Leck v The Minister (1993) 43 FCR 100 - cited
Huuba v The Minister (1995) 59 FCR 518 - cited

RANA BACHARA, BALVIR BACHARA, MANDEEP BACHARA AND SUKHDEEP BACHARA V THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

VG 127 OF 1997

JUDGE:         BEAUMONT J
PLACE:         MELBOURNE
DATE:           24 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 127  of   1997

BETWEEN:

RANA BACHARA
FIRST APPLICANT

BALVIR BACHARA
SECOND APPLICANT

MANDEEP BACHARA
THIRD APPLICANT

SUKHDEEP BACHARA
FOURTH APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
RESPONDENT

JUDGE:

BEAUMONT J

DATE OF ORDER:

24 OCTOBER 1997

WHERE MADE:

MELBOURNE

ORDERS:

1. Application 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
VICTORIA DISTRICT REGISTRY	VG 127 of 1997

BETWEEN:

RANA BACHARA
FIRST APPLICANT

BALVIR BACHARA
SECOND APPLICANT

MANDEEP BACHARA
THIRD APPLICANT

SUKHDEEP BACHARA
FOURTH APPLICANT

AND:

THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS
RESPONDENT

JUDGE:	BEAUMONT J
DATE:	24 OCTOBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

BEAUMONT J:

The first applicant is a 46 year old national of the Republic of India, from the Punjab, who entered Australia in March 1986.  The second applicant is the wife of the first applicant.  The third and fourth applicants are their children.  The second, third and fourth applicants entered Australia in March 1988.  In September 1991, the applicants applied to the Department of Immigration and Multicultural Affairs for protection visas.  A delegate of the Minister refused their application.  The applicants sought review by the Refugee Review Tribunal (“the Tribunal”) of this decision.  The Tribunal affirmed the decision.  The applicants now seek judicial review of the Tribunal's decision. 

In its reasons the Tribunal expressed its conclusions thus:

“The Applicant and his family have been absent from the Punjab since 1986 and 1988 respectively.  At that time, as the information cited above indicates, the Punjab was wracked by terrorism and brutality.  However, for the past four or five years this has subsided and the situation improved markedly.

The Applicant was a low-level member of the Akali Dal;  indeed at one stage in the determination process, he indicated that he was not a member at all.  I accept that he may have been caught up in the general sweep of anti-Sikh actions by the Indian police and military forces in the mid 1980s.  However, it is clear that since the early 1990s the situation in the Punjab has improved to the extent that it can be said that a person in the Applicant's position would face only a very remote chance of serious harm for his past political activities on return to India.  Furthermore, the fortunes of the Akali Dal in recent years and the atmosphere of peace during recent elections add weight to this conclusion.  This is not to say that no one would be at risk at present;  I accept that those individuals with a high level of activism in the recent past and those who are high-profile human rights campaigners may be at risk of attention from the police.  However, I am satisfied that the Applicant does not come within these categories.  I am unable to find that the Applicant's fear of persecution is well-founded.  I conclude therefore that the Applicant could return to the Punjab once again without serious incident.”

By their amended application for an order to review, filed on 15 May 1997, and by their contentions of fact and law, filed on 23 July 1997, the applicants sought to advance a number of grounds in their application for judicial review.  Those grounds recognised the severe limits placed upon the scope of the jurisdiction of this Court to intervene in such matters.  The grounds recognised, properly, that the applicants had to show that there was some error of law in the Tribunal’s decision and that it was not open to the Court merely to review on the merits the facts and circumstances of the case. 

As I followed the submissions advanced on behalf of the applicants, it is possible to classify the grounds for judicial review into three groups.

In the first place, it is submitted on behalf of the applicants that the Tribunal failed to bring an independent consideration to the matter at hand.  Reference is made, in this connection, to the fact that the Tribunal appears to have picked up and adopted descriptions made of the general situation in the Punjab in the middle of the 1980s, being a description made by another member of the Tribunal in another review involving an Indian citizen from the Punjab region.

The principles which govern this question are not in doubt.  They were considered by Wilcox J in Leck v The Minister (1993) 43 FCR 100 (at 122) and by Beazley J in a passage relied upon by the applicants here in Huluba v The Minister (1995) 59 FCR 518 (at 529). It is clear that whilst normally it may be appropriate for a decision-maker to adopt a summary of a general situation prevailing in a country at a particular time, it is not, at least generally speaking, open to a decision-maker to adopt, without more, statements made by another decision-maker by way of a description of the specific circumstances of a particular applicant.

In the present case, the summary of the position that was adopted by the Tribunal was no more than a description of the situation in the Punjab in the 1980s, which was common ground.  Those facts were notorious and very much in the public domain both in this country and elsewhere.  As has been seen, the Tribunal noted in its reasons that the Punjab “was wracked by terrorism and brutality”.  That was a fair summary of earlier material cited by the Tribunal which, indeed, as I have said, was and must have been common ground between the parties.  On the other hand, when the Tribunal came to address the specific situation of the first applicant, it is not and could not be suggested that the Tribunal did no more than adopt a statement made by another member of the Tribunal in another review.

When it came to consider the particular situation of the first applicant in the present matter, the Tribunal focused upon his actual circumstances.  It follows then, that I can see no substance in this first submission. 

It was next submitted on behalf of the applicants that the Tribunal erred, in the passage previously cited, in the expression of its conclusion that the applicant “would face only a very remote chance of serious harm”.  Attention is concentrated on the use of the word "remote."  It is submitted on behalf of the applicants, that to this extent, the Tribunal misunderstood the appropriate "real chance" test, as explained in Chan v The Minister (1989) 169 CLR 379. In my opinion, when the reasons of the Tribunal are read as a whole, there is no warrant for the submission now made.

Early in its reasons, the Tribunal said:

“To come within this definition, an applicant must first be outside his or her country of nationality.  Second, the applicant must have a well-founded fear of being persecuted.  Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan's case) establishes that a person has a well-founded fear of persecution under the Convention if they have genuine fear founded upon a ‘real chance’ of persecution for a Convention-related reason (Minister for Immigration and Ethnic Affairs v Wu Shan Liang & Ors (Wu's case) (1996) 136 ALR 481 at 484. A ‘real chance’ is one that is ‘substantial’ (Chan's case per Mason CJ at 389) or one that is not ‘remote or insubstantial’ (Toohey J at 407) or a ‘far-fetched possibility’ (McHugh J at 429).”

In Chan, Toohey J said in the passage mentioned by the Tribunal:

“The test suggested by Grahl-Madsen, a ‘real chance’, gives effect to the language of the Convention and to its humanitarian intendment.  It does not weigh the prospects of persecution but, equally, it discounts what is remote or insubstantial.  It is a test that can be comprehended and applied.   That is not to say that its application will be easy in all cases;  clearly, it will not. It is inevitable that difficult judgments will have to be made from time to time.”

I respectfully agree.  It is clear that his Honour's observations are consistent with the reasoning of the other members of the High Court in Chan.  It is equally clear that it was this kind of reasoning that the Tribunal, in the present matter, was seeking to apply.  That was a perfectly proper approach for the Tribunal to adopt and it must follow that the second ground of application for judicial review should not be accepted.

The third basis for challenge to the Tribunal's approach was developed by reference to material in the application book which was before the Tribunal, which indicated that, in the opinion of those concerned, the present situation in the Punjab was a serious one and that, from the point of view of the first applicant in particular, the situation should be regarded as grave.  It is submitted on behalf of the applicants that, once this material is read and appreciated, the inference should be drawn that, in truth, the Tribunal did not take the material into account.  The argument runs that but for the failure to take the material properly into account, the Tribunal would have come to another conclusion.

I have accepted, noting the passage which I have cited from the judgment of Toohey J, that the Tribunal faced with an exercise of judgment in the present matter, but that judgment was itself difficult.  However, it does not follow, of course, that any ground for judicial review is thus made out.  In my opinion, the matters sought to be agitated on behalf of the applicants are pure questions of fact. 

I acknowledge, as one must, that if they were to be accepted in their entirety, the opinions expressed in the material to which I was taken would provide logically compelling reasons for concluding that a Convention ground had been made out.  But it is hardly necessary to draw attention to two matters.  First, even accepting the material at its face value, it was no more than the expression of an opinion of those concerned.  Secondly, the weight of those opinions had, inevitably, to be measured against, and evaluated in the context of, other opinions expressed on the same topic.  When the Tribunal's reasons are read as a whole, it emerges that although the exercise of judgment was not an easy one, the Tribunal ultimately did come to the conclusion that it reached in the passage I have set out above and that in coming to that conclusion, the Tribunal, in my view, addressed the correct legal question.  I can perceive no error of law either in the process of reasoning or in the conclusion itself. 

What is now sought to be done by the applicants is not permissible in terms of the exercise of this Court’s jurisdiction.  That is to say, what is now sought to be done is to invite the Court to revisit the facts and form a different conclusion.  The provisions of the Act and recent statements of the highest authority make it clear that such an exercise is entirely beyond the bounds of this Court's jurisdiction.  It must follow, in my opinion, that the application should be dismissed.

ORDERS
I order that the application be dismissed with costs.

I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont

Associate:

Dated:             24 October 1997

Counsel for the Applicant:	Mr T A Fernandez
Solicitor for the Applicant:	Nathan Legal Practitioner
Counsel for the Respondent:	Mr P Booth
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	24 October 1997
Date of Judgment:	24 October 1997