Garcha, Jaspal Singh v Minister for Immigration & Multicultural Affairs
[1997] FCA 441
•29 MAY 1997
CATCHWORDS
IMMIGRATION - whether a failure to investigate the authenticity of a document amounts to a failure to observe a procedure prescribed by s 420 and therefore reviewable under s 476(1)(a) of the Migration Act 1958 - whether there was evidence to justify certain findings - attempt to seek review of certain findings on the merits.
Migration Act 1958 ss 420, 476(1)(a) and 476(2)(a)
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989)
169 CLR 379
Ram v Minister for Immigration and Ethnic Affairs (1995)
130 ALR 314
Randhawa v Minister for Immigration, Local Government and
Ethnic Affairs (1994) 52 FCR 437
Minister for Immigration and Ethnic Affairs v Surjit Singh
(Full Court, Federal Court of Australia, 7 May 1997,
unreported)
Minister for Immigration and Ethnic Affairs v Jagjit Singh
(Full Court, Federal Court of Australia, 7 May 1997,
unreported)
Thanh Phat Ma v Billings (1997) 142 ALR 158
Dai Xing Yao v Minister for Immigration and Ethnic Affairs
(Sackville J, 17 April 1997, unreported)
Mohideen v Minister for Immigration and Multicultural Affairs
(Olney J, 17 April 1997, unreported)
Teoh v Minister for Immigration, Local Government and
Ethnic Affairs (1994) 49 FCR 409
Minister of State for Immigration and Ethnic Affairs v Teoh
(1995) 183 CLR 273
Lek v Minister for Immigration, Local Government and Ethnic
Affairs (1993) 117 ALR 455
Videto v Minister for Immigration and Ethnic Affairs (1985)
8 FCR 167
Luu v Renevier (1989) 91 ALR 39
Tickner v Bropho (1993) 40 FCR 183
Sarbjit Singh v Minister for Immigration and Ethnic Affairs
(Lockhart J, 18 October 1996, unreported)
Dai v Minister for Immigration and Ethnic Affairs (Full Court,
Federal Court of Australia, 18 September 1996, unreported)
Prasad v Minister for Immigration and Ethnic Affairs (1985)
6 FCR 155
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
Szelagowicz v Stocker (1994) 35 ALD 16
No SG 1 of 1996
JASPAL SINGH GARCHA v THE MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Mansfield J
Adelaide
29 May 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 1 of 1996
)
GENERAL DIVISION )
BETWEEN:
JASPAL SINGH GARCHA
Applicant
- and -
THE MINISTER FOR
IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
MINUTES OF ORDER
CORAM: Mansfield J
PLACE: Adelaide
DATE: 29 May 1997
THE COURT ORDERS THAT:
The application be dismissed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 1 of 1996
)
GENERAL DIVISION )
BETWEEN:
JASPAL SINGH GARCHA
Applicant
- and -
THE MINISTER FOR
IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
REASONS FOR JUDGMENT
CORAM: Mansfield J
PLACE: Adelaide
DATE: 29 May 1997
Background
The applicant was born in India on 18 April 1971.
He arrived in Australia on 17 January 1991, travelling lawfully on an Indian passport, but having spent the previous two years or so in New Zealand. He entered Australia under a transit visa. On 22 March 1991 he applied for refugee status in Australia under the Migration Act 1958 ("the Act"). That application was rejected on 24 September 1992. On 28 October 1992 he applied for review of that decision.
Before that application for review was determined, the Migration Reform Act 1992 came into force. By its provisions, that application for review came to be considered by the Refugee Review Tribunal ("the Tribunal") then established under the Act, and the application was treated as an application for a protection visa under s36 of the Act. It is unnecessary to refer to the detailed legislative provisions existing at the time of his application, or following the coming into effect of the Migration Reform Act 1992. For practical purposes the relevant legal criterion upon which the application is to be determined remains the same. On 1 December 1995, the Tribunal affirmed the decision of the primary decision maker, effectively to refuse to grant a protection visa to the applicant.
Section 36(2) of the Act states that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia 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"). Those instruments are the same instruments relevant to the applicant's initial application for recognition as having refugee status. See also subclass 866.221 in Schedule 2 of the Migration Regulations.
Under Article 1 A(2) of the Convention, the applicant would qualify as a refugee (or as a person to whom Australia has protection obligations) if he is 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 High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 has explained that definition. The fear of persecution for a Convention reason must be one actually held (the subjective element) and must be one which is well-founded (the objective element); that latter element is established if there is a "real chance" of persecution for a Convention reason if the person were to be returned to the country of nationality (see per Mason CJ at 389, Dawson J at 396, Toohey J at 407, and McHugh J at 429-430).
On 4 January 1996, the applicant applied to this Court for review of the decision of the Tribunal. That application was made under s475 of the Act. It is accepted that the grounds of review available are only those provided for in s476 of the Act. The application for review was extensively amended on two occasions, the last on 6 September 1996. At the hearing a significant number of the grounds of review in the application were not pursued.
The applicant's claims and the Tribunal's reasons
The applicant is an Indian national. He is a single man, now aged twenty six. He is a Sikh from Punjab. After completing his secondary schooling, he studied at college for one year and
thereafter worked on the family farm. In about 1989 he left India, lawfully and on a lawful passport, to travel to New Zealand where he remained until coming to Australia in January 1991. He did not apply for refugee status whilst in New Zealand giving the reason that he was fearful that he might then be returned to India.
His claim for refugee status is based upon conduct giving rise to a well-founded fear of persecution for reasons of his religion and political opinion.
His claim was that he was an active member of the All India Sikh Student Federation ("AISSF") from 1987, as a result of which he was arrested on two or three occasions and beaten. The Tribunal concluded that his role in the AISSF was not a leadership one, preferring to accept his earlier statements as to that role rather than the statements more recently made on that topic, particularly in evidence before the Tribunal. The level of his participation, the Tribunal found, would not now attract adverse attention from the authorities in Punjab.
He asserted that on the first occasion of his arrest and beating, he was released after payment of a bribe and was not charged with any offence. The occasion of his second arrest was said to be when he met a leader of the Khalistan Commando Force ("KCF"), but again he was released after a short time and without any charge being laid against him. He recalled only at the Tribunal hearing the occasion of a third arrest, together with his brother and his
father, when police searched his family home apparently suspecting some association with the KCF, but again he was not charged. The Tribunal also received evidence from a witness supporting the applicant's claims in relation to those arrests and about the applicant's dealings with, or his familial relationship with, a member or members of the KCF. The Tribunal assessed that evidence, including the manner of presentation of that witness, and concluded that the witness's evidence was not credible. The Tribunal then made observations about the discrepancies in the applicant's version of events from time to time, and about the circumstances in which his earlier statements had been provided, and about his presentation as a witness before it. It concluded that the applicant was not associated with a KCF activist as he had claimed. It also concluded that he had sought to embellish his claims about his alleged arrests, and that he was not detained on more than one occasion, and then only briefly, in around August 1987. Thereafter, the Tribunal found, the applicant was not of continuing interest to the authorities. That conclusion was reached despite the Tribunal receiving evidence from a second witness who had, whilst visiting India in 1995, been informed by the applicant's father that the authorities did have a continuing interest in the applicant; for reasons given in the Tribunal's decision, it regarded that evidence also as implausible and attributed no weight to it.
Thus, the Tribunal's findings of fact in relation to the applicant's claims were made in the light of the assessment of the evidence presented to it. In the normal course, it would be difficult for the applicant to successfully attack findings made on that basis under s476 of the Act.
The major plank of the applicant's claim before the Tribunal, and on this review application, was based upon an arrest warrant dated 10 April 1995 ("the warrant") of which a copy was produced to the Tribunal during the hearing. The applicant did not know, nor had he inquired, for what offence that warrant had been issued. It was said to illustrate an ongoing interest in the applicant by the authorities. After the conclusion of the hearing, the applicant also submitted a letter apparently from an advocate in India and dated 19 October 1995, which contained information about the charge the subject of the warrant and detailed allegations of mistreatment of the applicant's family. The Tribunal, after referring to the form and content of those two documents, and the oral evidence of the applicant about the warrant, concluded that the warrant was not a genuine warrant, and that the letter was "contrived, self serving and prepared in order to bolster a claim for refugee status".
It is submitted that the Tribunal erred in failing to further investigate the authenticity of the warrant, including and in particular by having it reviewed by the Document Examination Unit of the Department of Social Security, and that that failure amounted to a failure to observe a procedure required by the Act to be observed in connection with the making of the decision: s476(1)(a). If the warrant were genuine, that would be important as it might well mean that there was significant ongoing interest
in the applicant by the authorities. It would then cut across the conclusion otherwise reached by the Tribunal. It will be necessary to refer to that submission in detail hereunder.
The Tribunal then considered the general evidence and reviewed the material before it, in particular as to the position and treatment of young Sikhs in the Punjab. That review indicated ongoing and widespread corruption, extortion and harassment, but indiscriminate and not directed at any particular religious group or political group. It regarded those practices as the "most plausible" explanation of the occasional police interest in the applicant which it had found to exist. If that were so, it concluded that such conduct in relation to the applicant could not be characterised as being for reasons of his religion or political opinion: Ram v Minister for Immigration and Ethnic Affairs (1995) 130 ALR 314.
As it noted, material before the Tribunal, and on which it relied, also showed since about 1993, that the level of religious based violence in the Punjab has been diminishing, although it continues to some degree albeit specifically directed at militant groups by the security forces, and at that level is likely to persist for some time. Its finding about the limited role of the applicant in the AISSF led to the Tribunal concluding that he was not within the "target group" of such conduct.
Consequently, the Tribunal, having considered each of the bases for the applicant's claim, rejected the claim that there was a
real chance he could not return to live safely in the Punjab. It therefore concluded that there was no real chance of him suffering conduct amounting to persecution for reasons of his religion or his political beliefs were he now to return to the Punjab.
The Tribunal also rejected the applicant's claim, based upon material before it, that the applicant could not in any event relocate to other parts of India without facing a real chance of persecution for reasons of his religion or political beliefs. It concluded, in the light of his age, his marital status and his education, that it was not unreasonable to expect that he could relocate to some other part of India away from Punjab.
If that conclusion is correct, irrespective of whether the applicant faces a real chance of persecution for a Convention reason should he return to the Punjab, his application must be dismissed. The fear of persecution must be with respect to the availability or otherwise of protection by his country of nationality, not with respect to the availability or otherwise of protection within a particular home region of his country's nationality: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. So long as he can avail himself of the real protection of his country of nationality elsewhere within India than Punjab, he does not qualify as a person to whom Australia owes protection obligations under the Convention. That is because the focus of the Convention definition:
"... is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders."
(per Black CJ at 441).
The findings of the Tribunal recognise, as Randhawa (above, at 442) indicates is necessary, that relocation in some other part of India is appropriate only if, in all the circumstances, it would be reasonable to expect the applicant to return to another part of the country of his nationality. It concluded that he could reasonably be expected to do so.
Although two of the grounds of appeal assert an error of law in the decision of the Tribunal in making those findings, allegedly contrary to s476(1)(e) of the Act, nothing was put in submissions to support those two grounds of appeal. In the absence of a submission seeking to identify such an error of law, and as the formulation of the Tribunal in my view seems to reflect properly the law as indicated in Randhawa (above), I reject those two grounds of appeal.
The applicant's real response to that conclusion of the Tribunal was that, if his primary complaint is made out in relation to the failure of the Tribunal to investigate the authenticity of the warrant, it would not follow that the Tribunal would still then have reached the same conclusion on the question of whether he would be able to return to India generally without some real chance that the warrant would be activated, so the question in
Randhawa (above) as to relocation would not arise. I think that that is correct, or arguably so, and consequently if the applicant succeeds on his primary ground pursued on this application, the matter will need to be referred back to the Tribunal. If, however, he does not succeed on that primary ground of his application, then even if he were otherwise to succeed on his attacks upon the findings of fact, or upon the conclusions of law, identified in the amended application, he would not succeed on this application. That is because his case otherwise was directed to establishing that he would be exposed to a real chance of persecution for a Convention reason were he to be returned to the Punjab, rather than to India as a whole. To have such a conclusion only would not mean that he would be a person to whom Australia owed protection obligations where, on the findings, it is reasonable to expect him to relocate in some other part of India where there would be no real chance of persecution. The Tribunal observed that some twenty percent of Sikhs in India live outside the Punjab. I shall nevertheless advert to the other grounds of review raised.
Grounds of Review
The ground of review addressed at the hearing, in oral submissions, related only to the alleged failure on the part of the Tribunal to comply with s420 of the Act. That failure was said to be the failure to investigate the authenticity of the warrant. It is said that that gives rise to the right of review under s476(1)(a) of the Act. It was also sought to invoke s476(1)(g) of the Act in relation to that topic.
The applicant's case here, put simply, is that the Tribunal failed to observe procedures required by the Act to be observed in connection with the making of the decision: s476(1)(a). The relevant procedures are said to be prescribed by s420 of the Act, which 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."
It is submitted that the obligation imposed upon the Tribunal under s420(1) to carry out its function to pursue the objective of providing a mechanism that is "fair", and "just", and under s420(2)(b) "to act according to substantial justice and the merits of the case" imposes a procedural obligation upon the Tribunal which, in the particular circumstances, required it to either accept the warrant as a genuine document or to cause inquiries to be conducted as to its authenticity. Thus, its failure to have those inquiries carried out amounted to a failure to comply with the procedural requirements of s420. In particular, it is suggested that the Tribunal should have referred the warrant of arrest to the Document Examination Unit of the Department for its expert advice. It did not do so.
There are a number of obstacles confronting that submission. They include:
whether the provisions of s420 impose positive legally enforceable obligations upon the Tribunal,
whether any such obligations constitute "procedures that were required by the Act to be observed in connection with the making of the decision" within the meaning of s476(1)(a), having regard to the explicit procedural obligations imposed upon it elsewhere in the Act, including under ss425(1)(a) and 426 of the Act, and perhaps also ss430 and 431 of the Act;
whether, any such obligations under s420 include the obligation to investigate certain matters, having regard to the provisions in the Act prescribing the circumstances in which an applicant may require the Tribunal to receive or procure evidence under ss425 and 426 of the Act; the applicant did not avail himself of those procedures in relation to the warrant;
whether, in any event, any such obligations involving an alleged duty to investigate certain matters are such that their breach might constitute either a breach of the rules of natural justice, or might involve the exercise of a power that is so
unreasonable that no reasonable person could have exercised that power, as those grounds of review are specifically excluded from the grounds of review available against the Tribunal: s476(2)(a) and (b) of the Act; and
whether, in the particular circumstances, any procedural obligation imposed under s420 of the Act required the Tribunal to conduct or cause to be conducted investigations, through the Document Examination Unit of the Department, as to the authenticity of the warrant in any event, that is as to the scope and content of any such obligations.
Some of those questions have been the subject of recent consideration by this Court, most recently in Minister for Immigration and Ethnic Affairs v Surjit Singh and Minister for Immigration and Ethnic Affairs v Jagjit Singh (Full Court, Federal Court of Australia, 7 May 1997, unreported).
The Full Court in both Surjit Singh (above) and in Jagjit Singh (above) was asked to consider the particular question now before the Court. The submissions there noted are reflected largely in the submissions made in this matter. The Full Court discussed the relevant authorities, and I do not need therefore to review them again in detail.
The Full Court concluded in Surjit Singh (at 12-13):
"Accepting for the purposes of argument that s420(2)(b) requires a procedure to be observed in connection with the making of a decision within s476(1)(a), the question is whether the obligation to act according to substantial justice requires the Tribunal to make an inquiry of the nature suggested here. The way in which the Tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the Tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case. In cases where s424 does not apply (ie where there is no review "on the papers"), the Tribunal must give an applicant an opportunity to appear before it to give evidence (s425(1)(a)), and "may obtain such other evidence as it considers necessary" (s425(1)(b)). An applicant may give the Tribunal written notice that he or she wants it to obtain oral evidence from a person or persons named in the notice (s426(2)). If the Tribunal is so notified, it must have regard to the applicant's wishes, but it is not required to obtain evidence from any such person (sub-s(3)). Section 427(1)(d) empowers the Tribunal to require the Secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the Tribunal's role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act.
In our view the respondent has fallen short of showing that the Tribunal's failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice. The Tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come. The Tribunal was given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic. Moreover, although the failure to ask the Tribunal to exercise its power to make inquiries could not be decisive, there is nothing to indicate that it was ever suggested to the Tribunal by the respondent or by the migration agent who was assisting him that it should take any steps of its own to authenticate the documents in question.
Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a
document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases. In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect."
Consequently, the Full Court did not need to decide whether, in a case where the Tribunal's omission to make inquiries does constitute a failure to act according to substantial justice for the purposes of s420(2)(b) of the Act, this amounts to failing to observe procedures required by the Act to be observed for the purposes of s476(1)(a) of the Act. Nor did it need to decide whether, in that event, the provisions of s476(2)(a) or (b) would preclude review.
Where the complaint is based upon s420(1) requiring the provision of a review mechanism that is "fair", clearly that is a complaint of a breach of the rules of natural justice. The Court has concluded that in such circumstances s476(2)(a) does preclude the Court from reviewing that failure: see Thanh Phat Ma v Billings (1997) 142 ALR 158 per Drummond J, Dai Xing Yao v Minister for Immigration and Ethnic Affairs (Sackville J, 17 April 1997, unreported) and Mohideen v Minister for Immigration and Multicultural Affairs (Olney J, 17 April 1997, unreported).
In Thanh Phat Ma (above), the complaint was that the Tribunal had failed to give the applicant an opportunity to comment upon certain documentary material to which the Tribunal had reference in reaching its decision. Drummond J rejected that argument on
the facts, because the material referred to was not adverse to the applicant in any event. He concluded in addition that complaints based upon s476(1)(e) involving an alleged error of law by failing to accord natural justice, or upon s476(1)(a) involving an alleged failure to comply with a procedure required by the Act to accord natural justice, were in any event not reviewable because of s476(2)(a). He observed (at 165):
"There thus appears to be a conflict between s 420, in so far as it imposes on the RRT an obligation to comply with the principles of natural justice or procedural fairness in carrying out its review functions, and s 476(2), which expressly denies to the Federal Court jurisdiction to review a decision of that tribunal on the grounds that a breach of the rules of natural justice have occurred in connection with the making of the tribunal decision. This conflict has been productive, in turn, of conflict in judicial opinion."
He proceeded to review those decisions. He reached the conclusion (at 168) that:
"...the Parliament has, I think, imposed on the RRT an obligation to comply with the rules of natural justice but has denied any remedy to a party for a breach by the tribunal of those rules (unless, as is the case with section 425(1)(a), the Act or the regulations themselves specify a particular aspect of the rules of natural justice with which the tribunal must comply, in which case a failure to comply with that prescription would be reviewable under s 476(1)(a))."
In Mohideen (above), Olney J also decided the application on grounds not relevant to the present issue. His Honour did however comment on it. He accepted, as did Drummond J in Thanh Phat Ma (above), that the reference to "mechanism of review" in s420 of the Act must refer to the Tribunal's procedures, and obliged it to provide procedural fairness. In
that case one allegation was that the Tribunal had failed to accord natural justice by having regard, in reaching its decision, to certain documents which the applicant had not had an opportunity to comment upon. It was found that s476(2)(a) precluded review for breach of that rule of procedural fairness. Accordingly, Olney J followed Drummond J's decision in Thanh Phat Ma that, in the absence of a failure to comply specifically with a specific procedural prescription in the Act such as that imposed by s425(1)(a), a failure otherwise to provide natural justice will not itself be reviewable.
Similar issues arose before Sackville J in Dai (above), namely whether the Tribunal's alleged failure to give the applicant the opportunity to comment on material relevant to his claim gave rise to the ground of review under s476(1)(a) of the Act. Sackville J also followed the decision of Drummond J in Thanh Phat Ma, so that the claim on that score had to fail because of s476(2)(a) of the Act.
The issues in this case are a little different. The failure alleged here is a failure to carry out or cause to be carried out investigations into the authenticity of the warrant. The respondent contends that in any event such a failure is a failure to comply with the rules of natural justice, relying upon the decision in Teoh v Minister for Immigration, Local Government and Ethnic Affairs (1994) 49 FCR 409. The relevant ground of review on that appeal was whether there had been procedural unfairness in the decision making process by the Tribunal's failure to
investigate the hardship to the appellant's wife and her children if the appellant were refused resident status. The appeal succeeded on that point, as the breaking up of a family unit was a factor which the decision maker was bound to take into account, and it accordingly necessarily involved the making of further inquiries into the relevant facts by the decision maker. Black CJ did not specifically identify the source of that obligation. He said (at 414):
"In the present case features that lead to the conclusion that the proper consideration of the break-up of the family unit as a relevant matter that the decision-maker was bound to take into account necessarily involved the making of further inquiry into the facts by the decision maker."
He referred to the well known cases recognising occasions when adequate consideration of a relevant matter necessarily involved the making of some inquiry as to the facts: eg Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 117 ALR 455 per Wilcox J at 472-473 and Videto v Minister for Immigration and Ethnic Affairs (1985) 8 FCR 167 per Toohey J at 178-179. A failure by a decision maker to obtain readily available factual material likely to be of critical importance to the central issue may lead to the conclusion that a decision has been unreasonably made: Luu v Renevier (1989) 91 ALR 39 at 50; Tickner v Bropho (1993) 40 FCR 183 at 198-199.
I do not think that the Chief Justice's observations necessarily support the proposition that the obligation to investigate which may arise in certain circumstances is derived from, or only from, the obligation to accord natural justice or procedural fairness. Lee J, in reaching a similar result, did suggest that the failure to carry out investigations, and so the failure to adequately have regard to the interests of the children, involved an error of law which he said might be described as a breach of the rules of natural justice. Carr J in reaching the same conclusion and in referring to the same authorities, said (at 434):
"In none of these cases was the duty to inquire considered in the context of a complaint of denial of natural justice or procedural unfairness. The complaints in those cases concerned improper exercise of power. However, there does not seem to me to be any reason in principle why the same complaint could not be made in an appropriate case in the context of denial of natural justice or procedural unfairness."
I do not take that decision to have stipulated that, in the particular circumstances where the Tribunal in the exercise of its functions should conduct, or cause to be conducted, certain inquiries as to the authenticity of a document, its obligation to do so derives only from the obligation to provide a mechanism for review that is "fair": s420(1) so that any failure to do so would not be reviewable because of s476(2)(a) of the Act. As appears from the Full Court's decisions in Surjit Singh (above) and in Jagjit Singh (above), that obligation when it arises probably will do so from s420(2)(b) of the Act. It may also possibly arise from the obligation to provide a mechanism of review that is "just": s420(1), although that question has not been adverted to in the cases to date and it is unnecessary for me to decide that.
If it were necessary to decide the question, I would conclude that in certain circumstances the Tribunal could be in breach of a procedural obligation imposed upon it by s420 of the Act to conduct or cause to be conducted certain inquiries into a matter, or to seek to have presented to it certain evidence. That is because, as the Full Court pointed out in Surjit Singh (above), the Tribunal's decision is made under a procedural rubric which limits expressly the rights of the applicant to adduce evidence other than directly from the applicant: ss425(1)(a) and (2) and 426 and on the other hand gives the Tribunal powers of investigation: s427(1)(d) and to procure and control the evidence before it: ss425(1)(b), 425(2), 426, 427 and 428 generally. Its only other source of information is the departmental file: s418 and the initial decision maker's findings of fact, reference to the evidence then relied upon, and the reasons for that decision: s423. It seems to me that the restructured review process created by Part 8 of the Act, and introduced by the Migration Reform Act 1992, reinforces the Tribunal's rights and responsibilities in relation to controlling the information available to it for its decision and clearly limits the rights of the applicant, and others, in that regard. Section 420 would therefore lie comfortably with a legislative intent to impose upon the Tribunal an obligation to fulfil those rights and responsibilities in accordance with its terms.
I have in any event reached the conclusion that, on the most favourable view of the scope of s420, that is assuming that it may impose an obligation upon the Tribunal in certain
circumstances to investigate, or cause to be investigated, certain matters relevant to its decision including no doubt on occasions the authenticity or otherwise of documentary material presented to it, the applicant fails in the application. Thus I do not need to finally determine whether, in the event of the Tribunal failing to conduct inquiries in circumstances involving a breach of s420, such a failure gives rise to a right of review under s476(1)(a) of the Act. Nor do I have to decide whether, in that event and on the present facts, such a failure would be precluded from being reviewable by reason of s476(2)(a) of the Act. Both those questions were left open by the Full Court in Surjit Singh and in Jagjit Singh (above). I note that certain of the decisions referred to by the Full Court in those two judgments do suggest that, in circumstances where s420 does impose a procedural obligation on the Tribunal and the failure to observe that procedural obligation is other than a failure to observe the rules of natural justice, then s476(1)(a) will provide an available ground of review: see eg per Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs (18 October 1996, unreported); per Davies J as a member of the Full Court in Dai v Minister for Immigration and Ethnic Affairs (18 September 1996, unreported).
No submission was put to the Court that the content of any procedural obligation upon the Tribunal to conduct, or to cause to be conducted, investigations into matters such as the authenticity of the warrant was any more extensive than that which previously was found to exist in limited circumstances
under the provisions of s5 of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). Nor does the content of s420 suggest some more substantial or different obligation.
A convenient summary of those circumstances can be taken from the decision of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170 in the following terms:
"The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it."
Reference can also be made to Luu v Renevier (above at 49); Tickner v Bropho (above at 197-198); Teoh v Minister for Immigration and Ethnic Affairs (above at 414), and on appeal (1995) 183 CLR 273 at 290 per Mason CJ and Deane J.
Of course, having regard to the provisions of s476(2)(b), that formulation may require re-expression in terms more apt to the proper scope of s420, but for the reasons given it is not presently necessary to further address that difficult question.
I note the alternative argument which was addressed but briefly, that the decision by the Tribunal that it was not necessary to call certain evidence or to cause certain investigations to be carried out may itself amount to an error of law under s476(1)(e). I do not need to explore that further. I am prepared to assume those matters in favour of the applicant, again however on the basis as to the extent of any such obligation being as referred to above.
What ultimately is lacking in the applicant's case, and which leads to this ground of review failing, is that the Tribunal's reasons indicate that it did have regard to the warrant and the letter. It did not overlook it. The question of whether the warrant was a valid one was considered by it. Unlike cases such as Teoh (above), the Tribunal did not fail to recognise that adequate consideration of whether there was a real risk of the applicant being persecuted should he return to India did involve the making of some inquiry as to the validity of the warrant. The complaint is rather that in the process of the investigation, in this instance largely based upon the circumstances in which, and the timing with which, the document was produced, and upon the inherent characteristics of the document, and upon the lack of interest in the applicant by the authorities from 1987, there was an insufficient investigation. There may be cases where it can be said that such a level of investigation does demonstrate a failure to accord substantial justice to an applicant. They will be rare. The Tribunal's reasons or observations about the warrant are in the following terms:
"The arrest warrant is dated 10 April 1995, some six years after the applicant left India. It was submitted to the Tribunal in September 1995, just prior to the hearing. The document is roughly typed. It bears no official letter-head and does not outline the alleged offence except by a number that refers to the Arms Act. The applicant was vague in giving evidence about the arrest warrant. He said that he had not enquired as to what he was actually charged with. Although he claimed that other arrest warrants were issued, even prior to his initial application for refugee status, he passed up opportunities to refer to their existence despite their obvious relevance to a claim for refugee status.
. . .
In assessing all the material before it the Tribunal finds that the copy of an arrest warrant submitted by the applicant is not a genuine document and that the letter purportedly from an advocate in India is contrived, self-serving and prepared in order to bolster a claim for refugee status. It also finds that although the applicant may have been briefly detained on one occasion in 1987 he was released without charge and he was not of continuing interest to the authorities."
It is primarily for the Tribunal and not for this Court, to determine whether additional investigation as to the integrity of such a document is or is not necessary. There may be cases where a determination of the Tribunal on that topic will indicate a failure to accord substantial justice under s420(2)(b) (at least on the assumptions I have made above). I do not think that the Tribunal's reasons are, in any sense, insignificant or that it acted quite unreasonably or capriciously in deciding to not accept the warrant as genuine on the grounds specified. Its reasons do not demonstrate that the Tribunal overlooked the document, or treated its potential authenticity other than in a serious way. Its assessment was based upon, and in the context of, the whole of the evidence before it.
Accordingly, on this aspect, I do not think that an error on the part of the Tribunal is made out, even having made the assumptions in favour of the applicant's case to which I have referred.
Although they were not the subject of oral submissions, counsel also indicated the remaining grounds in the amended application for review, and which were not expressly abandoned, were to be kept alive without submission. They were also not the subject of any written submission in support of them. I shall deal with them briefly.
As I have indicated, once the applicant fails to successfully attack the Tribunal's conclusion that (apart from issues relating to the warrant) any real chance of persecution otherwise contended for, even if established, was confined to the Punjab and to successfully attack the finding that it was reasonable in the circumstances to expect him to move to some other part of India where he would not be so exposed, those other grounds of the application would not result in any order altering the Tribunal's decision.
The further amended application for an order for review refers to thirty four findings of the Tribunal, about which it is said that there was no evidence to justify that finding, contrary to s476(1)(g) of the Act. That section is elucidated and limited by s476(4) of the Act, limiting the circumstances in which the "no evidence" ground can be made out to those where:
"(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."
That subsection reflects provisions of s5(1)(h) and s5(3) of the ADJR Act. It has in that context been considered at some length in Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212, and in Szelagowicz v Stocker (1994) 35 ALD 16. I do not need to refer to those decisions in detail. Of the nineteen such findings still identified as "alive" as the subject of attack in the application for review, the majority reflect a misapprehension as to the role of ss476(1)(g) and 476(4) of the Act. Those provisions do not contemplate, nor permit, a merit review on decisions on matters of fact. In respect of them, there was evidence to justify the making of the particular decision on the particular matter or the particular fact. The Tribunal in each case has referred to it. In some instances the material is identified as reports available to the Tribunal. The fact that other reports may provide a different conclusion do not in any sense make out the ground of review. It is up to the Tribunal to determine which material before it it elects to make use of. Furthermore, the Tribunal's conclusions on matters of fact are expressed to be in part also based upon observations of the applicant in the giving of his evidence, on the content of his evidence, and on its inherent probability or improbability,
and on the light of the varying versions of relevant events which the applicant gave from time to time. Similarly, its findings or observations in respect of the evidence of other witnesses before it were based in part upon objective facts, in part upon inherent probability or improbability of what was asserted, and in part upon impressions as to the reliability of the witness giving evidence. The Tribunal is also able to make findings based upon inferences from other facts and observations, including observations as to the way in which the applicant and other witnesses gave evidence. Indeed, some of the matters complained of reflect observations made by the Tribunal upon witnesses and the manner of their presentation, including the applicant, rather than specific findings of particular facts. Accordingly, in my view those grounds of appeal are misconceived and are not made out. I do not think it is necessary to set each out seriatim and address separately each one of them.
I have dealt separately with those allegations insofar as they relate to the validity or genuineness of the warrant and of the letter.
I also note that one of the allegations involves the proposition of an error in the following terms:
"The tribunal member erred in finding that there is not a real chance that the applicant would face persecution if he were now returned to his country of origin. There is no evidence to justify the making of this decision."
There was evidence upon which the Tribunal could have reached that conclusion. In addition, as that complaint relates to the ultimate conclusion of the Tribunal, it is based upon a series of findings of fact set out progressively through its reasons, and I am not satisfied that such an ultimate conclusion in those circumstances can be effectively attacked under s476(1)(g) of the Act; the attempt to do so in those circumstances is really no more than the applicant seeking a review of that conclusion on the merits. Section 476(1)(g) does not permit that to be done.
It is also asserted that the Tribunal made an error of law contrary to s476(1)(e) by classifying the random extortion and harassment to which Indians in the Punjab are apparently still vulnerable from time to time as not for a Convention reason. It found specifically that such harassment (other than that specifically directed to militants not including the applicant) was random, and was not based any upon particular political opinion nor directed at any particular religious group. There was evidence upon which it could so find. No error of law was sought to be made out in submissions, and on those circumstances it is unnecessary to further address that complaint.
Finally the applicant also invokes ss476(1)(d) and (3)(c) of the Act, asserting that the decision was an improper exercise of the power conferred by the Act because the Tribunal exercised a discretionary power in accordance with a rule or policy and without regard to the merits of the applicant's case. It is surprising that such an allegation is made, and then not
addressed in submissions either orally or in writing. The reasons for the Tribunal's decision indicate that it did carefully consider the applicant's particular case. I reject that ground of review.
Accordingly, in my view this application should be dismissed.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Mansfield.
Associate:
Dated:
Counsel for the Applicant : Mr M Clisby
Solicitors for the Applicant : Paul Kirk Roberts & Co
Counsel for the Respondent : Mr P Macliver
Solicitors for the Respondent : Australian Government
Solicitor
Hearing Date : 24 April 1997
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