Chadda, Aswin v Minister for Immigration and Multicultural Affairs
[1998] FCA 1517
•30 NOVEMBER 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION - application for judicial review of Refugee Review Tribunal decision refusing grant of a protection visa – applicant citizen of India – alleged fear of persecution by reason of membership of political party – whether Tribunal drew proper inferences from the evidence before it – relationship between the process of drawing inferences and 476 of the Migration Act 1958 (Cth) – whether failure to rationally consider evidence resulted in a failure to act according to substantial justice and the merits of the case.
Migration Act 1958 (Cth) ss 420, 476
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621
Nguyen v Minister for Immigration and Multicultural Affairs (1997) 44 ALD 595
Inderjit Singh v Minister for Immigration and Multicultural Affairs (unreported, Weinberg J, 29 October 1998)
ASWIN CHADDA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
NG 544 of 1998
MOORE J
30 NOVEMBER 1998
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 544 of 1998
BETWEEN:
ASWIN CHADDA
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
MOORE J
DATE OF ORDER:
30 NOVEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision of the Refugee Review Tribunal is set aside.
The matter is remitted to the Refugee Review Tribunal to be heard according to law.
The Minister pay half of the applicant’s costs of the application.
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
NG 544 of 1998
BETWEEN:
ASWIN CHADDA
APPLICANTAND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
MOORE J
DATE:
30 NOVEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is an application for judicial review by Aswin Chadda (“the applicant”) of a decision of the Refugee Review Tribunal (“the Tribunal”) of 11 May 1998. The applicant is a citizen of India who arrived in Australia on 23 December 1995. On 21 February 1996 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs which was refused on 2 April 1997 by a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”). On 24 April 1997 the applicant sought review of that decision by the Tribunal. After considering the circumstances of the applicant, the Tribunal affirmed the delegate’s decision that the applicant was not a refugee. A criterion for the grant of a protection visa is that the applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”). Art 1A(2) of the Convention contains, for present purposes, the definition of refugee. It provides:
… the term ‘refugee’ shall apply to any person who;
…
(2)owing to a well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality in being outside the country of his former habitual residence is unable or, owing to such fear, is unwilling to return to it.
The Tribunal’s reasons
The case of the applicant before Tribunal was that he feared persecution if he returned to India because he has “oppositional social and political beliefs” about the right of the public to be informed of the “corrupt conduct” of politicians and government authorities in that country. He told the Tribunal that his activities in India were related to his membership of a political party called the Chandra Party (“the Party”), which had the aim of pressing state ministers to administer the laws correctly and not bow to the interests of powerful elements in society that subverted the rights of ordinary people. The applicant claimed that the authorities had taken notice of his activities and that he had been kidnapped twice by “known elements” of “government authorities” and beaten. He stated that he believed these incidents to be a “warning”, and for this reason fled the country to the United Arab Emirates where he lived from May 1993 to October 1995. He returned to India in 1995 to ascertain whether the situation had improved but found that the conditions remained unchanged, and that his wife and child had had to move to Bombay after receiving anonymous phone calls threatening to kidnap the child. He then travelled to Australia where he applied for refugee status.
The applicant said that in each election thousands of people are either killed or injured by people hired by the major parties to intimidate and discourage “anti-corruption elements” like himself. The applicant provided the Tribunal with a brief history of the Party. He stated that the Party had been founded in 1984 and though it still exists, it has been severely repressed. It has never succeeded in electing representatives to a parliament. The applicant stated that he joined the Party in Bombay in 1985 and became a “main” member. He was appointed an “assistant director” by the president of the Party, and arranged fortnightly meetings to handle complaints from ordinary people about failed promises by politicians.
The applicant gave evidence to the Tribunal about his past experiences. He stated that he had been involved in an investigation of a local water authority in India where he had exposed certain misdeeds. The applicant said that the people running the authority became afraid that he would take his complaints to the national capital and so they kidnapped him in November 1987. During this time he was kept in a remote place, threatened, beaten and stabbed until he eventually lost consciousness. A hospital document referring to this attack was before the Tribunal. The applicant stated that this incident did not stop him from engaging in further political activities for the Party. However he continued to face similar opposition and at the end of 1990 he was again badly beaten. The applicant stated that those who were threatening him did so because his political activism had threatened interests “at the highest level”. It was in response to such incidents that he eventually moved to the United Arab Emirates in 1993.
The applicant told the Tribunal that he had recently spoken to the leader of the Party by phone, and had been informed that it was unsafe for him to return to India because members of the Party still needed to keep a low profile. The Tribunal adjourned the hearing to enable the applicant to produce evidence supporting these claims. On 15 April 1998 the applicant provided further information, in the form of a letter from the Party president describing the situation of the Party, and a letter from the Party president to the applicant himself. Both were dated 2 April 1998. The letters referred to matters concerning the profile of the Party which were considered by the Tribunal in its assessment of the potential risk to the applicant if he returned to India.
The first letter, which might be described as a letter to the world at large, stated that political activity in India involves extreme violence. It detailed the history of the Party, its formation in Bangalore and later progression into other areas of India. The letter stated that the applicant’s enemies continue to be “very much active at present and holding a top position”. The Party president said he was “grateful” that the applicant was still alive “because the people whom he has made his enemies are far more resourceful, financially very sound and have big resources and can do anything they want and even eliminate anyone they like”. The second letter, personally to the applicant, stated that the Party “is facing a very difficult time at present”. The Party was described as “almost broken”, with its members “all separated and facing a very serious situation”. The people who had formerly harassed the applicant were said to have become “very influential and holding a high position in Government”, and the Party had become almost broken, with its members “hiding in different places”. He advised the applicant that “now and then, whenever you asked me, I told you to stay away from this country”.
After setting out the contents of these letters, the Tribunal noted that in its own research, it was not able to find any information on the Party, on the Party president, or on other political organisations and figures named by the applicant.
The Tribunal’s “findings and reasons” in relation to the applicant’s evidence are comparatively brief. The Tribunal said that it was prepared to believe that the applicant is a person of committed social ideals and that he had suffered for his ideals by having alienated local people in power in at least two regions in India. The Tribunal observed that there are many millions of people in India who strive to improve political and social conditions in that country, and are therefore in a like position to the applicant and the Party president. Although acknowledging that the Indian political and judicial system can often be defective in providing complete protection to its citizens, the Tribunal held that such people have recourse to the police and courts of India.
The Tribunal stated that it was not satisfied, given the lapse of time since the applicant had left India, and taking into account time spent living in the Middle East, that the applicant would still be of interest to the people who had pursued him in the 1980s and early 1990s. Central to this conclusion was the Tribunal’s finding that the Party was now, according to the evidence of the Party president, in an “almost broken” situation. However the Tribunal conceded that if the applicant was still of interest to his former enemies, it would be reasonably necessary for him to relocate to another part of India where he could not readily be found. The Tribunal held on balance that there was no real chance of persecution if the applicant were to be returned to India.
Submissions
The applicant submitted that the Tribunal’s decision was amenable to review under a number of subsections of s 476 of the Migration Act 1958 (Cth) (“the Act”). The relevant subsections provide:
476 (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
…
(d) that the decision was an improper exercise of the power conferred by this Act or the regulations;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
…
(g) that there was no evidence or other material to justify the making of the decision.…
(3)The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:
(a)an exercise of a power for a purpose other than a purpose for which the power is conferred; and
(b)an exercise of a personal discretionary power at the direction or behest of another person; and
(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;
but not as including a reference to:
(d)taking an irrelevant consideration into account in the exercise of a power; or
(e)failing to take a relevant consideration into account in the exercise of a power; or
(f)an exercise of a discretionary power in bad faith; or
(g)any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).
(4)The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.
It is also necessary to set out s 420. It provides:
(1)The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.
(2) The Tribunal, in reviewing a decision:
(a)is not bound by technicalities, legal forms or rules of evidence; and
(b)must act according to substantial justice and the merits of the case.
The central submission of the applicant related to the Tribunal’s drawing of, or failure to draw, certain inferences from the material before it. The submission was particularized in the applicant’s written submissions filed before the hearing in the following way:
…
2. The Tribunal drew inferences primarily from the letter from the Party president, Nagraj which it was not reasonably open to draw bringing its decision within grounds in subsection (e).
3. The Tribunal accepted that the applicant is a person of committed social ideals who alienated certain people in power but the Tribunal did not draw consequent reasonable inferences from the totality of the evidence to the effect that the fear of the applicant is well founded. This brings the decision within grounds in subsection (e) and (g).
The written submissions also stated that:
To the extent that the Tribunal has not acted according the substantial justice and the merits of the case in matters arising out of the aforementioned particulars its decision falls within grounds in subsections (d) and (e).
At the hearing counsel for the applicant indicated that reliance was also placed on para (a) of s 476(1) though unfortunately I did not gain an entirely clear appreciation of how, finally, the applicant’s case was put. However I approach the matter on the basis that s 476(1)(a) together with s 420 might provide a statutory foundation to the case as it was generally formulated in the applicant’s written submissions. Some of the submissions of counsel for the applicant were confused and involved propositions of law that were untenable or barely arguable. Nonetheless they should be set out.
In relation to the second particular, counsel for the applicant argued that an error of law arose from the Tribunal’s treatment of the comments in the letter that the Party was “almost broken”. Counsel submitted that an inference appeared to have been drawn that political opposition to the applicant would no longer exist because the Party was a spent force. The Tribunal did not take into account the admonition of the president in his letter, instead using the president’s words to imply that “the coast is clear” should the applicant return. Counsel further submitted that the Tribunal’s view that the applicant could relocate in India was contrary to the tenor of the president’s letter and contrary to the experience of the president who noted in his letter that he felt constrained from travelling in parts of India.
In relation to the third particular, counsel for the applicant submitted that there was no evidence to support the Tribunal’s conclusion that the risk to the applicant had abated with the passing of time: s 476(1)(g). The applicant had stated in evidence that when he returned to India to “test the waters” in 1995 he found conditions unchanged and that his wife and child had been obliged to move to Bombay because of fear for their safety. Counsel further submitted that there was also no basis for the assumption that the applicant would be safe from the vengeance of people in high places by relocating. Counsel also argued that the Tribunal erred in acknowledging that political intimidation exists in India and judicial protection of citizens is defective, but then failing to treat those general conclusions as applicable to the applicant’s situation.
The essence of the applicant’s argument was that inferences should be properly drawn from the evidence and not capriciously or selectively drawn. The facts from which such inferences should be reasonably drawn are the primary facts as found by the Tribunal. The Tribunal’s apparent acceptance of the Party president’s letters for some purposes should have led to the drawing of certain inferences from other parts of it. That is, the Tribunal in accepting most of the contents of the letters should have led to the adoption or acceptance of the intimation of the president that it was not safe for the applicant to return. It should have been inferred that, as a matter of fact, it was not safe.
As to how such an argument fits within the terms of s 476 of the Act, counsel for the applicant appeared to submit that such an approach constituted an incorrect application of the law to the facts as found: s 476(1)(e), though he also spoke of the interpretation of the law which may have been a reference to the first limb of para (e). The relevant “law”, it was submitted, was the requirement that inferences should be properly drawn from the evidence. This “law”, it was argued, includes any common law requirement concerning the basis upon which a fact might be inferred from proven primary facts. It also encompasses the “law” that the Tribunal act in accordance with substantial justice and the merits of the case: that is, the “law” or legislative framework for decision-making as discussed in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621. Counsel made a further related submission that the way the Tribunal went about drawing inferences was comprehended by s 476(1)(d) on the footing that the Tribunal had not properly exercised its power. The power referred to by counsel was the power contained in s 420 “to act according to the merits of the case”. By making a finding contrary to the tenor of the evidence the Tribunal had, it was submitted, exceeded its power by not making a finding according to substantial justice and the merits of the case. Submissions to the same effect were made in relation to the third particular, that there was no evidence for the finding that risk to the applicant had abated.
Counsel for the respondent submitted that these arguments were merely complaints concerning the Tribunal’s factual findings, which is not a ground for review under the Act. Counsel argued that the suggestion there was “no evidence” to support the finding that risk to the applicant would have abated with the passage of time was nonsensical, as this finding was simply the result of the Tribunal’s analysis of the evidence and the situation in India.
Counsel for the applicant also made the submission that by basing it decision in part on its own research, the Tribunal’s reasons were amenable to review within the grounds of ss 476(1)(d) and (e).
Conclusions
Dealing with the last matter first, I agree with counsel for the respondent that, in this case, there is no substance to the applicant’s argument that the Tribunal should not have conducted its own research into the Chandra Party without informing the applicant of the relevant sources of information.
The applicant’s submissions in relation to the proper drawing of inferences and the requirements of s 420 of the Act are somewhat more problematic. The applicant’s argument is founded on the contention that the process of inferring facts from proven primary facts must be reasonable and rational. Plainly this is so though what facts can be inferred from proven primary facts is an issue that has vexed appellate courts in appeals that put in issue the question of what inferences can be drawn from proven primary facts: see e.g. Warren v Coombes (1979) 142 CLR 531. However the drawing of inferences is part of the process of fact finding: see Fabre v Arenales (1992) 27 NSWLR 437 especially at 447-448 per Mahoney JA. As I noted in Nguyen v Minister for Immigration and Multicultural Affairs (1997) 44 ALD 595 at 599:
The legal characterisation of the process of drawing inferences was discussed by Cooper J in Secretary, Department of Social Security v Danielson (Fed C of A, Cooper J, No Q97 of 1996, 23 December 1996, unreported) in relation to whether a false statement or representation had been made upon which s 1224(1) of the Social Security Act 1991 (Cth) operated. There was no direct evidence of the statements or representations of the recipient of a benefit. His Honour said (at 9-10):
However, that there is no direct evidence of a fact does not necessarily mean that there is no evidence of a fact. Courts and tribunals are frequently asked to infer the existence of a particular fact from the existence of a series or number of other facts which, taken together, suggest that the existence of the particular fact in question is more probable than not. The particular fact (the principal or ultimate fact or factum probandum) is inferred from the existence of the other fact or facts (the evidentiary fact or factum probans). Proof of a fact in issue is legitimately undertaken in this way: see generally Wigmore on Evidence, Tillers Rev 1983, Vol 1A, pp 30-31; Cross on Evidence, Third Australian Edition 1986, paras 1.20-1.62; Hayes v Federal Commissioner of Taxation(1956) 96 CLR 47 at 51; Edward J Sweeney & Sons Inc v Texaco Inc 637 F2d 105, 115-16 (3d Cir 1980), cert denied, 451 US 911 (1981).
However any deficiency in the process of drawing inferences evident in the Tribunal’s reasons is not amenable to review having regard to the second limb of the ground of review in s 476(1)(e). The third reference to “law” in s 476(1)(e) is to “law” applied to the facts as found. As a matter of construction the notion of “law” is not intended to comprehend steps taken in the process of fact finding. The “law” is that applied to the facts as found. That is, it is applied after the process of fact finding is complete.
However the first limb of s 476(1)(e) may have relevance having regard to the observations of Wilcox J in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 151 ALR 505 at 530. It appears that his Honour concluded that if there was material before the Tribunal which was not contested (in that case it was that the applicant had possessed photographic negatives of the 1989 Tiananmen Square incident and suffered from post traumatic stress disorder) and inferences might reasonably be drawn from that material that tended to support the veracity of an applicant’s account having regard to their cumulative effect, then failure to draw those inferences involved an incorrect interpretation of the law. It is, in the present case, unnecessary to consider the application of that approach to the present case as the Tribunal, as I shortly discuss, erred in another respect that justifies its decision being set aside.
In so far as counsel for the applicant relied on paragraphs (d) and (g) of s 476(1), they are relevantly limited by subs (3) and (4) of s 476 respectively and, so limited, have no application to the present case.
I now deal with the issue arising from the application of the principles deriving from the judgment of the majority of the Full Court in Eshetu. Counsel for the respondent formally submitted that Eshetu was wrongly decided. However notwithstanding that an appeal against the judgment of the Full Court in Eshetu is currently pending in the High Court, Eshetu is to be regarded as binding. Nonetheless counsel for the respondent referred to a number of recent authorities which have dealt with the Eshetu principles as they might apply to the process of fact finding. They included Velmurugu v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 193, Guo Wei Zhi v Minister for Immigration and Multicultural Affairs (unreported, Davies J, 24 February 1998), Jit v Minister for Immigration and Multicultural Affairs (unreported, Davies J, 15 May 1998).
Authorities concerning the relationship between s 420 and s 476(1) have recently been considered by Weinberg J in Inderjit Singh v Minister for Immigration and Multicultural Affairs, unreported, 29 October 1998. As to the status of Eshetu his Honour said:
In electing to follow the majority in Eshetu I do not intend to muddy the waters, let alone enter the bog, by expressing any views as to the correctness or otherwise of the reasoning adopted by Davies and Burchett JJ. It is sufficient to say that the views of those judges of this Court who disagree strongly with that reasoning cannot be discounted. In the interim, however, until the High Court finally resolves this matter, I propose to follow the approach adopted by the majority in that case.
I approach this matter on the same footing. As to the principles themselves his Honour summarized them in the following way:
(b) Mistaken findings of fact as a source of review
Giving full weight to the admonition that the Court must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision, there are, nonetheless, cases where certain types of mistaken findings of fact can give rise to reviewable error. Such cases must, of course, fit properly within one or more of the legislatively mandated grounds for review set out in s 476(1) of the Act, as explained by the majority in Eshetu.
There are instances where the Tribunal has been found to have failed to act according to “substantial justice” by making findings which were of such a nature as to warrant the intervention of the Court.
In Kathiresan v Minister for Immigration and Multicultural Affairs (supra) Gray J set aside a decision of the Tribunal which had rejected the applicant’s claim to refugee status largely upon the basis that the approach taken by the Tribunal to the credibility of the applicant was not open to it on the material before it, was not based on rational grounds, and was not arrived at after consideration of matters that were logically probative on the issue of credibility. His Honour observed:
“The question which arises is whether it is open to this Court to overturn the finding of the tribunal on credit on the basis that the tribunal relied in part on two findings which were not open to it. It cannot be said with any certainty that, had the tribunal not relied on its finding as to the applicant’s account of his education or on his suggested lack of knowledge of events during the time he was in Colombo, it would have come to the same conclusion as to his credit. There is much that resembles a house of cards in the tribunal’s reasoning; disbelief of one fact is used as a reason to disbelieve another, and so on. The findings as to the applicant’s educational history and unawareness of events whilst in Colombo were significant in the context of the tribunal’s overall reasoning. It can therefore truly be said that the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist; see s 476(4)(b) of the Act. This is sufficient to make out the ground for review of a decision found in s 476(1)(g) of the Act, namely that there was no evidence or other material to justify the making of the decision.
I am also of the view that to make adverse findings as to credit on the basis of non-existent facts amounts to a failure to act according to substantial justice, within the meaning of s 420(2)(b) of the Act and therefore a failure to observe procedures that were required by the Act to be observed, within the meaning of s 476(1)(a) of the Act.”
In Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 Finkelstein J set aside a decision of the Tribunal in circumstances where his Honour found that the Tribunal had failed to consider rationally certain probative evidence. His Honour distinguished between a failure of that type, and the making of a simple mistake of fact. Section 420(2)(b) of the Act imposed a procedural obligation upon the Tribunal requiring it to act rationally and reasonably. The Tribunal would not be acting rationally and reasonably if it made a finding of fact upon which its decision was based but which was not supported by probative evidence. The Tribunal would also have failed to act rationally and reasonably if it failed to consider rationally the probative evidence that was before it. In the particular circumstances, his Honour found that the Tribunal had failed to comply with that obligation. Its decision was therefore set aside on the grounds set out in s 476(1)(a).
Finkelstein J based his decision that there was an obligation upon a Tribunal to consider rationally the evidence before it upon the views of Brennan J in Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, and of Deane J (with whom Evatt J agreed) on appeal in Minister for Immigration and Ethnic Affairs v Pochi (1980) 31 ALR 666. His Honour did not accept that Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357 had determined that these statements of principle did not represent the common law in this country – cf Roads Corporation v Dacakis [1995] 2 VR 508 at 520 per Batt J.
Whether a failure to consider rationally probative evidence is, as Finkelstein J held, clearly distinct from coming to a decision which is “irrational” (in the sense of so-called “Wednesbury unreasonableness”: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) may be open to doubt – the principles seem to me to overlap, at least in some cases. Nonetheless there is some justification for saying, as his Honour did, that a decision which is not reached as a result of the rational consideration of probative evidence may be described as the product of such reasoning by a Tribunal as can fairly be said to amount to a breach of its obligation to act according to “substantial justice and the merits of the case”, and to fall outside the parameters of the exclusionary provisions of s 476(2)(b) of the Act.
In Kopalapillai v Minister for Immigration and Multicultural Affairs (supra) the Full Court referred to the judgment of Merkel J in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 in which his Honour had rejected an application to review the decision of the Tribunal upon the basis that it had erred when dealing with issues of credibility by noting that the approach of the Tribunal to the credibility issues “was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility”. The Full Court in Kopalapillai endorsed the approach adopted by Merkel J in Emiantor to the question whether the Tribunal, when assessing the credibility of the story told by the appellant, had erred in law within the meaning of s 476(1)(e) of the Act.
Though Epeabaka was not mentioned, in terms, in Kopalapillai, the principles which the Full Court adopted in dealing with the appeal in that case may be seen as being broadly consistent with those adopted by Finkelstein J.
It is necessary, by reference to the principles referred to in this passage, to consider the approach taken by the Tribunal in the present case. The Tribunal said it was prepared to accept that the applicant was a person of committed social ideals. It also accepted that he had suffered for his ideals by having alienated in the 1980’s and early 1990’s local authorities in at least two regions of India. By this last remark the Tribunal appears to have indicated it accepted that the applicant was kidnapped twice and beaten. The second time this occurred was in 1992. The Tribunal also appears to have accepted that the applicant had been stabbed in the 1987 kidnapping and hospitalized and that the applicant was bashed in 1990.
In its conclusion the Tribunal makes no comments or findings about the applicant’s claim that things had not changed when he returned to India in late 1995 nor about the applicant’s claim that during the period 1993 to 1995, when he was in the Middle East, his wife and child were forced to move because threats were being made by phone to kidnap the child. These matters would plainly have been relevant to a consideration of whether there was a real risk of persecution if the applicant was to return to India. It may be, however, that they were matters the Tribunal had in mind when it referred to the lapse of time since the applicant left India for Australia which was, it appears, in about December 1995. That is, the Tribunal was taking into account all the preceding matters but was nonetheless of the view that the latest of these events would have been late 1995 and that interest in the applicant would have waned since then.
The Tribunal’s conclusion that interest had waned was reinforced, in its mind, by what had been said in the letter of 2 April 1998 to the applicant himself from the president of the Party. In that letter the president had said that the Party was “almost broken”. However what the Tribunal does not refer to is what immediately follows in the letter namely:
You know the people who had harassed you when you were in India. Now they have become very influential and holding a high position in Government.
That is the reason given by the Party president for the Party being almost broken. In the letter to the world at large of the same date the Party president makes a similar comment:
I am very grateful to God that Mr Chadda is still alive because the people he had made his enemies are far more resourceful, financially very sound and have big resources and can do anything they want and even eliminate anyone they like. They are very much active at present and holding a top position therefore my advice to Mr Chadda is to stay away from this country.
There is plainly a direct link between the assertion of the Party president, accepted by the Tribunal, that the Party is broken and the prominent position of people who were described as Mr Chadda’s enemies. Moreover their status as people in positions of influence was linked to a warning that the applicant not return to India.
There are a variety of ways the Tribunal could have dealt with this material. It could have taken the view that the letters from the Party president were of insufficient weight to justify any conclusion being drawn from them about the likelihood of the applicant being persecuted. It did not do so. Rather it drew on certain aspects of the letters in a way adverse to the claims of the applicant without explaining why it felt constrained not to accept the other parts supportive of the applicant’s claims. If parts of the letter were accepted then it could be expected that, absent explanation, a rational and fair use of this material would have led to an acceptance of the other parts of it. That, of course, would not necessarily have dictated that the Tribunal accept that simply because the Party president asserted certain things about risks to the applicant were he to return, a well founded fear of persecution had been demonstrated.
However the approach of the Tribunal evidenced a failure to rationally consider the material before it, namely the letters of 2 April 1998, and the applicant has established the Tribunal did not observe procedures it was required by s 420(2)(b) to observe. Accordingly the Tribunal’s decision should be set aside and the matter remitted to the Tribunal to be heard according to law.
The issue of costs is not straightforward. While the application raised the ground on which the applicant has succeeded, it appeared to have been abandoned in the written submissions prepared on behalf of the applicant. It emerged again, somewhat obscurely, at the hearing. Had it been clear from the outset the Minister may have taken a different approach to the application. The appropriate course is to order that the Minister pay half of the applicant’s costs of the application.
I certify that this and the preceding fourteen (14) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore
Associate:
Dated: 30 November 1998
Counsel for the Applicant: Phillip Segal Solicitor for the Applicant: Coelho & Coelho Counsel for the Respondent: Robert Beech-Jones Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 14 September 1998 Date of Judgment: 30 November 1998
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