Duggal, Avtar Singh v The Minister for Immigration and Ethnic Affairs

[1997] FCA 672

FEDERAL COURT OF AUSTRALIA

MIGRATION LAW - Review of decision of Refugee Review Tribunal not to grant protection visa - Whether the Tribunal had failed to correctly apply the “real chance” test - Controversy among commentators about the future course of events - Whether the Tribunal was bound to consider the events between the date of hearing and the date of the decision - Whether the Tribunal had failed to consider whether it should make its own enquiries into the authenticity of an arrest warrant - Arrest warrant did not state any offence to which it was directed - Whether the failure to enquire amounted to a breach of any obligation to act according to substantial justice and the merits of the case.

Migration Act 1958 (Cth) ss 36(2), 420(2)(b), 427(1)(d), 476(1)(a), 476(1)(e)

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration & Ethnic Affairs v Serjit Singh (unreported, Federal Court of Australia, Full Court, 7 May 1997)

DUGGAL v MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS
VG 930 OF 1996

JUDGE(S):	NORTH J
PLACE:	MELBOURNE
DATED:	25 JULY 1997

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA  DISTRICT REGISTRY	)  VG 930 of 1996
)
GENERAL DIVISION	)

BETWEEN:	AVTAR SINGH DUGGAL Applicant
AND:	THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

JUDGE(S):	NORTH J
PLACE:	MELBOURNE
DATED:	25 JULY 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The application is 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 930 of 1996
)
GENERAL DIVISION	)

BETWEEN:	AVTAR SINGH DUGGAL Applicant
AND:	THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent

JUDGE(S):	NORTH J
PLACE:	MELBOURNE
DATED:	25 JULY 1997

REASONS FOR JUDGMENT

This is an application, filed on 7 December 1995 by Mr Avtar Singh Duggal, the applicant, under s 476 of the Migration Act 1958 (Cth) (the Act) for a review of the decision of the Refugee Review Tribunal (the Tribunal). The decision of the Tribunal, made on 13 November 1995, affirmed the decision of the delegate of the Minister for Immigration and Ethnic Affairs, the respondent, to refuse to grant the applicant a protection visa.

The applicant is a national of India, born on 1 August 1954. He is a Sikh from the Punjab. He arrived in Australia in early 1990 on a visitor visa.

Under s 36(2) of the Act, a criterion for the grant of a protection visa is that the applicant is a non-citizen in Australia to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees. Under the Convention and Protocol, Australia has protection obligations to a refugee who is defined relevantly as a person who:

“owing to 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 ....”.

The Tribunal determined that the applicant was not a refugee as defined.

THE APPLICANT’S CASE BEFORE THE TRIBUNAL

In late 1984, the applicant returned to India after working in Kuwait. He claimed that he had been held in custody between September and November 1984 after his family gave food to “boys” from the Sikh Federation following incidents at the Golden Temple in Amritsar. Then he returned to Kuwait. Towards the end of 1986, he returned to India again because of reduced opportunities for work in Kuwait. He claimed that he had been arrested and detained for nine months following complaints that his brother had provided shelter to “boys” from the Sikh Federation. After release, he lived with his sister for six months and was checked a couple of times by the authorities. He alleged that he bribed the authorities to leave him alone. Then, in 1988, he returned to Kuwait again. Before the Tribunal, the applicant’s case was that he feared arrest because of the problems in the past, and also because he had joined the Sikh Federation in 1994. He relied upon an arrest warrant purportedly issued by the Indian authorities to demonstrate his fear of arrest.

REASONING OF THE TRIBUNAL

The Tribunal commenced its consideration by reference to the authorities concerning the meaning of the expression “well-founded fear of being persecuted”. It referred to the statements in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 of Mason CJ at 389, Dawson J at 396, Toohey J at 407 and McHugh J at 429, to the general effect that the expression requires a real chance of persecution if the applicant were to be returned to the country of nationality.

In relation to the 1984 events, the Tribunal said:

“In considering all the evidence the Tribunal finds that the applicant was a supporter of Akali Dal who was apprehended on not more than one occasion in 1984 during a general sweep of his village. The fact that he was released without charge and was able to return legally to Kuwait later that year indicates that he was not of continuing interest to the Indian authorities, and the Tribunal finds accordingly.”

In relation to the alleged detention in 1987, the Tribunal said:

“In considering the applicant’s evidence concerning a second period of alleged detention the Tribunal notes several unsatisfactory features of it, including the absence of any apparent reason why he would be detained for nine months, almost immediately after an extended absence from India, and vagueness and certain anomalies regarding his medical treatment. The Tribunal also notes that in his initial application for refugee status the applicant said that he was employed as a stonemason for the period December 1986 until September 1988. In assessing all the evidence the Tribunal does not find the applicant’s claim that he was detained for nine months in 1987 to be credible.

Additionally, the fact that the applicant was again able to leave legally for Kuwait demonstrates that he was not of continuing interest to the authorities. The Department of Foreign Affairs and Trade (DFAT) opined in cablegram ND84486 of 6 July 1992 that a person for whom an arrest warrant had been issued would not be able to leave the country from an international airport without detection.”

The Tribunal then addressed the claims of arrest and the continued interest of the authorities in the applicant and, in particular, reviewed a number of documents said to support the claim. The documents included a purported arrest warrant, about which the Tribunal said:

“The copy of the arrest warrant is dated 28 December 1992, although the year 1991 is apparently over-written. It requires the presentation of the applicant for an unspecified offence. Its form is rough; it does not have the appearance of an official document; and contains no crest or letter-head. It was submitted by the applicant in July 1993. The applicant gave unconvincing evidence that although he received the document in 1992 he kept it out of fear that its earlier presentation may cause the Department to deport him. He said that he has never bothered to enquire about the nature of the alleged offence.

In assessing all the evidence the Tribunal finds that the documentation submitted by the applicant is self-serving and designed to embellish his claim for refugee status. The Tribunal finds that the arrest warrant is not a genuine document.”

The Tribunal then found that the applicant was occasionally checked by police and had to pay bribes. As there was a high incidence of extortion, corruption and bribery in the Punjab at the time, the Tribunal concluded:

“In view of the information regarding extortion and harassment, and the applicant’s modest political profile either with Akali Dal or the Sikh Federation, the Tribunal concludes that the most plausible explanation for the occasional police interest in him was in connection with security arrangements and allied extortion. Such an activity in the circumstances of this case and in light of relevant country information does not disclose a Convention reason. The evidence regarding extortion indicates that anyone who was perceived capable of making some payment was subject to threats from the security forces, regardless of factors such as religion and political opinion.”

The Tribunal then reviewed the political developments in the Punjab from June 1984, when the Golden Temple was stormed by Indian military forces and the fundamentalist Sikh leader, Sant Jarnail Singh Bhindranwale, was killed. In October 1984, the Prime Minister, Mrs Indira Ghandi, was assassinated. These two events, as stated by the Tribunal, “unleashed an attack on Sikhs in a climate where the rights of Sikhs were severely repressed”. Thousands of Sikhs were arrested and there were reports of killings, disappearances and torture, which continued until early 1993. The Tribunal found that, after early 1993, the incidence of violence decreased and there was a slow return to normalcy. The Tribunal found that such violence was directed at militant groups by the security forces.

The Tribunal then gave particular and close attention over almost three pages to the possible rise of Sikh militancy and violent repression against Sikhs following the then recent assassination of the Punjabi Chief Minister in September 1995. It referred to the opinions of a number of commentators, such as the opinion, expressed in India Today of 30 September 1995, that:

“.... On the resurgence of violence, political observers argue that the chances of terrorism assuming the alarming pre-1992 proportions are at best slender. Their premise: the people’s deep‑seated aversion to violence - the groundswell of public sympathy that once sustained militancy is now hardly a ripple. Indeed, many people, especially in the villages, are yet to forget the miseries of terrorism.”

The Tribunal then said:

“.... there has been a substantial change in circumstances in Punjab since the applicant left, and more particularly over the past two years. The indiscriminate violence of both the authorities and some Sikhs pursuing their aims has dissipated and been replaced by a situation where the authorities target those people it suspects of being ‘militants’ or who have ‘some established history of terrorist associations.’”

It then went on to consider the situation in the rest of India outside the Punjab and concluded that:

“Even if the applicant believes that he could not safely return to the Punjab, there is ample evidence that he would not face more than a remote chance of persecution in other parts of India. Reporting from the Australian High Commission in New Delhi confirms the view that, outside the Punjab, there are large numbers of Sikhs who have settled in relative safety throughout India.”

ARGUMENTS AND CONCLUSIONS ON THE REVIEW

The applicant based his challenges to the decision of the Tribunal on s 476(1)(e) of the Act, which provides for a review on the ground 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;”

Mr Hurley, who appeared as counsel for the applicant, contended that the decision contained three errors of law. I will deal with each in turn.

First, the applicant contended that the Tribunal erred in the application of the real chance test. The Tribunal found that the assassination of Sant Jarnail Singh Bhindranwale and Mrs Ghandi in 1984 “unleashed an attack on Sikhs in a climate where the rights of Sikhs were severely repressed”. The Tribunal also referred to the assessment of commentators that the chance of a resurgence of violence and suppression was remote. The assessments were made in the context of a live issue whether the circumstances of 1995 were likely to produce the same results as the circumstances of 1984. It was submitted that, as there was controversy among observers whether the 1995 events would spark a repeat of the 1984 events, a proper application of the real chance test required the Tribunal to find a real chance of persecution in the present case. By not making such a finding, the Tribunal erred in law. I do not accept this argument. The Tribunal was entitled to accept the view of commentators that the situation in 1995 was different from the circumstances of 1994, for example, because by 1995 the Sikh population of the Punjab no longer supported terrorism and there was disillusion with militant tactics. The Tribunal thus accepted a rational analysis of the likely future course of events. It was open to the Tribunal to accept that events would not involve violence against a person such as the applicant and, hence, there was not a well-founded fear of persecution. The mere existence of the question about the future course of events did not necessarily give rise to a well-founded fear of persecution. This ground, in essence, questions the Tribunal’s finding of fact and does not raise an error of law.

Second, the applicant submitted that the Tribunal relied on outdated material and, consequently, did not properly apply the real chance test. The hearing took place on 29 September 1995. The decision was made on 13 November 1995. Although there is only a fairly short period between the hearing and the decision, the applicant submitted that the closeness in time of the assassination of the Chief Minister in about early September 1995 to the date of hearing meant that the Tribunal was bound to consider the events between the date of hearing and the date of decision. In my view, this argument is not sustainable on the facts of the case. The applicant did not produce to the Court any evidence that any relevant events had occurred during this period. Further, counsel for the applicant did not have instructions that any relevant events had occurred during this period. Finally, after the hearing before the Tribunal, the Tribunal wrote to the applicant’s migration adviser enclosing material that the Tribunal may rely on in making its decision, including material produced after the hearing. The Tribunal invited the applicant to make written submissions in relation to the material by 23 October 1995. In response, the applicant wrote to the Tribunal after the hearing to clarify parts of his evidence. His letter was received by the Tribunal on 10 October 1995. The applicant had an opportunity to raise further material about any events which occurred after the hearing and did not do so. These events point strongly to the likelihood that there were no events between the hearing and the decision which would have assisted the applicant. The Tribunal did not fall into the error for which the applicant contended.

Third, the applicant argued that the Tribunal had erred in law in failing to consider whether it should make its own enquiries into the authenticity of the arrest warrant. Under s 427(1)(d), the Tribunal had the power to require the Secretary of the Department to arrange for the making of any investigation which the Tribunal thought necessary with respect to the review. The applicant contended that the Tribunal misconstrued this power and thereby committed an error of law. The Tribunal did not refer to the existence of the power to have further investigations made. The applicant contended that the Court should find that the Tribunal was not aware of its power. Counsel for the applicant recognised that, if the Tribunal had been aware of its power and had exercised it against obtaining further evidence, no error of law as alleged would have been made out. In my view, there is no basis for the conclusion that the Tribunal was not aware of its power under s 427(1)(d). The Tribunal did not say, for example, that this was a case in which further enquiries should be made about the arrest warrant but it did not have the power to require that such enquiries be made. Further, the Tribunal made findings about the circumstances surrounding the evidence of the arrest warrant which gave it good reason not to trouble with further enquiries. It observed that the arrest warrant did not state any offence to which it was directed. Thus, even if it was authentic, it did not disclose whether the offence alleged related to any Convention matter. Further, the Tribunal did not accept the evidence of the applicant as to the circumstances of the receipt of the alleged arrest warrant. The applicant had been on notice, since 2 March 1995, during an interview which led to the initial decision of the ministerial delegate that the authenticity of the arrest warrant was in issue. He took no steps to have the validity of the warrant established in the later proceeding before the Tribunal. He did not raise before the Tribunal any difficulty which he had, or thought he might have, encountered in having the matter formally proved by reference to the authorities in India. And he did not seek to have the Tribunal obtain oral evidence under s 426(2) of the Act. These factors indicate that the Tribunal had no reason to refer to the need to have further investigations made. The circumstances do not demonstrate that the Tribunal was unaware of its power to make such investigations. No error of law has been shown in this regard.

The applicant did not put his case under s 476(1)(a) of the Act, which provides for review on the ground:

“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”.

Nevertheless, after the conclusion of the hearing, the respondent forwarded a copy of the decision in Minister for Immigration & Ethnic Affairs v Serjit Singh (unreported, Federal Court of Australia, Full Court, 7 May 1997) to my associate and advised the solicitors for the applicant of the fact. The parties did not seek to make further submissions based on the case. As the applicant did not rely on s 476(1)(a), the case is of no real assistance for present purposes. In that case, the Tribunal had found that an arrest warrant was not authentic, and had not made enquiries as to its authenticity. The failure to make enquiries was alleged to have been a “failure to act according to substantial justice and the merits of the case” within s 420(2)(b). This failure was then alleged to amount to a failure to observe the procedures required by the Act, and thus a reviewable error within s 476(1)(a). The majority of the Full Court (Black CJ, Von Doussa, Sundberg and Mansfield JJ) assumed, for the purposes of argument, that such a failure could constitute a reviewable error under s 476(1)(a), but determined that it had not been shown in that case that a failure to enquire amounted to a breach of the obligation to act according to substantial justice and the merits of the case. Even if I made the same assumptions in the present case, the applicant would still not be entitled to succeed because there was no failure to act according to substantial justice and the merits of the case for the same reasons, outlined earlier, which demonstrated that the Tribunal was not unaware of its power to have further enquiries made.

The application is dismissed with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice North

Associate:

Dated:            25 July 1997

Counsel for the Applicant:	Mr T. V. Hurley
Solicitor for the Applicant:	Ravi James & Associates
Counsel for the Respondent:	Mr C. Gunst
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	22 April 1997
Date of Judgment:	25 July 1997