Mehrok, Yadwinder Singh v Minister for Immigration and Multicultural Affairs
[1998] FCA 812
•14 JULY 1998
FEDERAL COURT OF AUSTRALIA
MIGRATION – judicial review – whether procedures required to be observed in connection with the making of the decision were observed – whether 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 – whether review is available in circumstances where Tribunal misapprehended evidence and as a result made a finding not open on material before it – judicial review of decision distinguished from merits review.
Migration Act 1958 (Cth), ss 36(2), 420, 476(1)(a), 476(1)(e)
Thambythurai v Minister for Immigration and Multicultural Affairs, (Finkelstein J, 16 September 1997, unreported), cited
Holloway v McFeeters (1956) 94 CLR 470, cited
Jones v Dunkel (1959) 101 CLR 298, cited
Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397, cited
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, cited
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, cited
YADWINDER SINGH MEHROK v
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
NG 34 of 1998
LEHANE J
SYDNEY
14 JULY 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 34 of 1998
BETWEEN:
YADWINDER SINGH MEHROK
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTJUDGE:
LEHANE J
DATE OF ORDER:
14 JULY 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The decision of the Refugee Review Tribunal is affirmed.
The applicant pay the respondent’s costs.
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 34 of 1998
BETWEEN:
YADWINDER SINGH MEHROK
APPLICANTAND:
MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
JUDGE:
LEHANE J
DATE:
14 JULY 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The applicant applies, under s 476 of the Migration Act 1958 (Cth), for review of a decision of the Refugee Review Tribunal. The Tribunal, on 22 December 1997, affirmed a decision, made by a delegate of the Minister on 12 March 1996, refusing to grant a protection visa to the applicant. Judicial review of the Tribunal’s decision is sought on the grounds provided in s 476(1)(a) and (e) of the Migration Act: that procedures required to be observed in connection with the making of the decision were not observed and 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 Tribunal.
The applicant is an Indian national. He is a Sikh. He was born on 24 April 1973 and, before the events on which he bases his claim, lived with his parents in the Punjab. The basis of his claim to be a non-citizen to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (Migration Act, s 36(2)) is stated in his application for a protection visa, in the record of an interview he had with the Minister’s delegate and in evidence which he gave before the Tribunal. It may be briefly summarised. The applicant’s grandfather, to whom he was greatly attached, was killed during disturbances which followed the attack, in 1984, on the Golden Temple in Amritsar: he had been associated with a body known as the Sikh Students Federation (SSF) or a related body. In 1990 the applicant joined the SSF. A short time afterwards, on 11 April 1990, he was arrested without warrant, detained by police for several days and tortured: he was released only after his parents paid a bribe, and was bed-ridden for some time afterwards. Then on 26 January 1991 he spoke at a rally about the treatment of the Sikh people and about Sikh objectives, particularly the establishment of an independent country, Khalistan. He was arrested once again on the following day; again he was detained for several days and tortured; again he was released only after his parents paid a bribe and again spent some time recuperating from his injuries. During both periods of detention the police tried to persuade him to change his views: that is, apparently, to give up his advocacy of the Sikh cause. Following his release in early 1991, the applicant continued his involvement with the SSF but in a way which was not, as he put it, “open”. Until August 1993 he continued to live with his parents and during that period was subjected to relatively minor harassment by the police, who from time to time threatened him, drove past his home and visited his house to see whether any meetings were taking place and to look for firearms. In August 1993 he moved to the neighbouring state of Haryana where he lived with relatives and completed a motor mechanic’s course which he had begun after his second period of detention. He was not subjected to any harassment while living in Haryana until 2 June 1995. A protest rally, in the planning of which the applicant played some part, was due to be held in the applicant’s home village a few days later. The police raided the applicant’s parents’ house, acted abusively, stole property and uttered threats – including, as the Tribunal understood the applicant’s evidence before it, threats to kill the applicant. Having learnt from his parents where the applicant was living in Haryana, the police went to his relatives’ home looking for him. He had been warned of the threats, however, and had left. For about two months the applicant moved about. He had obtained a passport in 1991 (he had paid a fee to an agent in order to do so). He now paid a fee to another agent in order to obtain an Australian visa. Having done so, he left for Australia. In Australia he has maintained his support of the Sikh cause: he gave evidence that he had taken part in a demonstration at the Indian High Commission in Canberra in August 1996 and that the Indian authorities knew who had participated in that demonstration. The applicant fears that, if returned to India, he will be killed in a “false encounter”: that has been the fate, he says, of other deportees, particularly one from Germany and another from Canada. The applicant also gave evidence to the Tribunal that his parents had told him, since his arrival in Australia, of continuing threatening visits from the police.
In reaching its decision, the Tribunal proceeded on the basis that the applicant’s fear was genuine and that what he feared was persecution for a Convention reason. The Tribunal decided as it did on the ground that the fear was not well founded. The Tribunal stated the applicable law in terms of which no complaint is made and which are in my view unexceptionable. The applicant’s claim is that, in the way in which it considered the applicant’s evidence and the other material before it and made its findings of fact, the Tribunal demonstrated that it misapprehended (or it misapplied) relevant legal principles so as to enliven s 476(1)(e) of the Migration Act or failed to comply with s 420 so as to attract review under s 476(1)(a).
The Tribunal took into account “country information” from several sources. Broadly speaking, the sources were unanimous in confirming that, between 1984 and the early 1990’s, the Punjabi police were guilty of widespread human rights abuses in the course of their attempts to suppress the Sikh movement. There was consensus, however, that the situation had substantially improved. The Tribunal cited, for example, Canadian documentation in which the view was expressed, as the Tribunal summarised it:
“While there are efforts to bring the Punjabi police under control, the ingrained culture of using force and other unacceptable methods would take some time to change. People who are not high profile militant suspects are, however, generally not considered to be at risk in the Punjab today. A family member of a high profile individual or someone who provided a shelter for militants during the height of the insurgency would not now be considered a high profile suspect. Nor would a person who simply holds a pro-Khalistan opinion. There is also much better access to judicial recourse if people are treated improperly than existed previously.”
The Tribunal also quoted information, obtained from both Australian and Canadian sources, to the effect that the SSF is a non-violent organisation pursuing a peaceful political agenda. That, certainly, was consistent with the evidence which the applicant gave to the Tribunal of the nature of the SSF and of the activities in which he had been involved.
The Tribunal considered, particularly, information concerning the treatment of Sikh deportees on their return to India. There was material, for example, which confirmed the applicant’s evidence that a young Sikh man, deported from Germany, was arrested, tortured, blackmailed and killed by police on his return to India in 1994. There was a German report of 12 September 1994 that human rights activists were convinced that deportees were often arrested, tortured and blackmailed at Bombay and New Delhi airports and that immigration officials were inclined to require the payment of a bribe before a deportee was allowed to leave the airport: there was an assumption that returning deportees would have money. Information received in January 1995 from the Department of Foreign Affairs and Trade was to the effect that:
“ … people returning to India who have been deported from another country will come to the attention of the authorities. In many cases, the people concerned have travelled on false papers or forged entry or exit visas and this is an offence under the relevant Indian legislation. If a person has political connections which have been the subject of adverse attention by the authorities, then their name will be stored in the immigration police computer. If the person is shown to be of minor significance, then they may be questioned and asked for money to avoid further action. If they are unable to pay or if they are shown to have more significant political connections, then they can face arrest, detention and torture.”
More recent (17 February 1997) Canadian information was to the effect that the Canadian High Commission in New Delhi regularly monitored airport arrivals of people deported from Canada and that:
“… in the last few years this group has numbered eight or ten and Indian authorities have not pursued any of them”
with the exception of one person who was a senior official of a body known as the Khalistan Commando Force.
There was, of course, no suggestion that it was improper for the Tribunal to take that information into account. It was against that background that the Tribunal came to consider the applicant’s claims and his evidence. The Tribunal described its task in the following terms:
“It is the task of the Tribunal to make findings of fact on applications for refugee status. This frequently involves an assessment of the credibility of what the applicant has said. Contradictory statements, although of obvious importance, do not necessarily require a conclusion that the witness is being completely untruthful if it is possible that there is a hard core of acceptable evidence within the body of the testimony. This not to say, however, that issues of credibility are not relevant when determining an application for refugee status. In adopting a liberal attitude, a decision-maker is not required to accept uncritically any and all allegations made by an applicant (Randhawa v MILGEA (1994), 124 ALR 265, Beaumont J, p278). Nor does it mean that the Tribunal must have rebutting evidence available to it before it can find that a particular factual assertion by an applicant has not been made out (Selvadurai v MIEA and Anor (1994) 34 ALD 347, Heerey J, p348). Claims which are seriously at odds with the independent evidence regarding the situation in an applicant’s country of origin need not be accepted, even in cases where the applicant’s case is otherwise plausible and coherent (McHugh J, p428, Chan’s case).
Again, it was not suggested that that passage reveals any misapprehension of the relevant law. The reviewable error for which the applicant contends arises from the way in which the Tribunal proceeded to make its findings of fact leading to the conclusion that the applicant’s fear of persecution was not well founded. The section of the reasons of the Tribunal member in which she made her findings is fairly brief and I shall quote it in full:
“I do not believe that all aspects of the applicant’s claims are accurate.
The applicant’s evidence about the two periods of detention was that he was detained in 1990 for five days and in 1991 for three or four days. He said that he was tortured on both occasions and that he was bedridden as a result of his injuries for one month following the first episode and for three or four months following the second. While I am prepared to accept that the applicant was detained and hurt by the Punjabi police, I do not accept the applicant’s evidence concerning his interrogation. He has said that the police were asking him to change his views and has provided no other evidence concerning the subject of the interrogation. I find it improbable that the police would have spent days interrogating and torturing a very young man with a low level involvement in a non-militant organisation focusing only on trying to persuade him to change his mind about supporting the movement for Khalistan. I therefore do not accept that the applicant was detained for the periods he has claimed.
I also doubt the accuracy of the applicant’s claim that in 1995, when troubles in the Punjab had at least subsided and when on his own evidence the police had shown no interest in him or his whereabouts for at least the two years while he had been living in Haryana, the police went to the applicant’s parents’ house looking for him because of a rally which apparently was planned and then pursued him in Haryana. I note that the applicant said at the hearing that the police told his parents that the applicant would be killed and note also that this claim had not been mentioned before the Tribunal hearing. If this threat had been made as the applicant has stated, then I consider that it would have been mentioned previously. I do not accept that the police visited the applicant’s parents in 1995 as he has claimed or that the police came looking for him at his house in Haryana. I find it even more implausible that the police are still looking for him now, some two years after he left India.
I understand that one of the reasons the applicant may fear returning to India is because of what happened to the individual who was returned from Germany in 1994 (and perhaps, as the applicant has claimed, to an individual who was returned from Canada about which I have no other information). In the light of advice from the Department of Foreign Affairs and Trade and the later Canadian information set out above concerning deportees returning to India, I have concluded that while the applicant may face extortion by corrupt airport or immigration officials he would not be seen to have any significant political profile and therefore would not be a particular target for interrogation or torture. There is a high level of corruption in India and people of all racial and religious backgrounds are victims of it.
I am not satisfied that there is a real chance that the applicant would face persecution because of his involvement in Sikh affairs if he were to return to India and find that his fear is not well-founded.”
The applicant made a number of complaints about that passage. The first general complaint was that the Tribunal proceeded to reject particular aspects of the applicant’s evidence before it without explicitly making a finding about the applicant’s credibility as a witness: particularly, as I understood the submission, the Tribunal did not expressly deal with matters such as demeanour. That criticism, in my view, should be rejected. A general finding as to credit is not a necessary preliminary to a rejection of particular evidence on the ground that it is found to be implausible or in conflict with other evidence or information which the Tribunal finds compelling.
There was a second general submission, made at the close of the applicant’s oral argument, which may conveniently be considered at this point. It was to the effect that, on the facts as found by the Tribunal, the applicant’s fear must be well founded, so that the rejection of his application must involve an error of law or a failure to observe required procedures. That is so, it was said, because the Tribunal accepted that the applicant would, on his return, continue his involvement with the Sikh cause; because of his record before leaving India, even on the facts as found by the Tribunal (and particularly its reliance upon departmental information about the way in which deportees are dealt with by immigration officials upon arrival at Bombay or New Delhi airport) the applicant would, in effect, become a target for extortion. The departmental information was to the effect that, if a deportee is “shown to be of minor significance”, the likelihood was that the deportee would be questioned and asked for money: if payment was not forthcoming, or if the deportee was shown to have more significant political connections, then arrest, detention and torture might follow.
That argument, however, in my opinion seeks what clearly is not permitted, that is, judicial review of the Tribunal’s decision on the merits. There is no attack, and could be none, on the Tribunal’s finding that the applicant is a low level (or at least low profile) member of a non-militant organisation. On the basis of all the material before it, including particularly the more recent Canadian material, the Tribunal found, in effect, that all the applicant had realistically to fear was a demand for a bribe. That finding does not involve a misapprehension of the evidence or a reviewable error. A particular criticism was that the Tribunal’s summary of the departmental information did not adequately reflect its full content, as it had been set out in reasons given by the Minister’s delegate for refusing the primary application for a protection visa. Clearly, however, the Tribunal had the full material before it. Its summary of that material is in my view by no means unfair and the criticism cannot be sustained.
The applicant made two particular criticisms of the Tribunal’s findings, however, which give rise to questions of greater difficulty. First, counsel for the applicant referred to the findings made by the Tribunal about the two periods of detention: particularly, that although the Tribunal found that the applicant been “detained and hurt” it did not accept that he was detained “for the periods he has claimed”. The reason given for not accepting that the detentions lasted as long as claimed was that the Tribunal member found it:
“improbable that the police would have spent days interrogating and torturing a very young man with a low level involvement in a non-militant organisation focussing only on trying to persuade him to change his mind about supporting the movement for Khalistan”.
Counsel pointed out, correctly, that the Tribunal member did not refer to the evidence that it was necessary to pay a bribe to obtain the applicant’s release on each occasion and that it took a few days to raise the necessary money. In her account of the claims and evidence, the Tribunal member referred to the applicant’s evidence that his release from the earlier period of detention followed a payment by his parents. Although the Tribunal member did not specifically mention the payment of money in relation to the applicant’s release on the second occasion, she did record the applicant’s claim that “his parents again managed to secure his release”. The point made was, of course, that in declining to accept the applicant’s evidence about the periods for which he was detained, the Tribunal failed to take account of the applicant’s evidence explaining why his release occurred only when he claimed it did. The submission is correct, so far as it goes. It does not follow, however, that what may be described as the Tribunal’s mistake in this respect provides, at least standing alone, a ground to set aside its decision: the Tribunal’s finding as to the periods of detention must be regarded as peripheral to its decision (see, for example, Thambythurai v Minister for Immigration and Multicultural Affairs, FCA, Finkelstein J, 16 September 1997, unreported). The question to be decided, and to be decided at the time when the Tribunal made its decision, was whether the applicant’s fear was well founded. On that question the periods of detention were of little significance. It is evident, I think, from the passage I have quoted from the Tribunal’s reasons, read as a whole, and particularly from the penultimate paragraph, that it carried little if any weight in the making of the Tribunal’s decision.
The other matter, on which submissions for the applicant principally concentrated, was the Tribunal’s finding that the police did not visit the applicant’s parents in 1995, as claimed, or look for the applicant in Haryana, followed by the finding that it was “even more implausible” that the police were still looking for the applicant some two years later, at the time of the hearing before the Tribunal. A reading of the relevant paragraph of the Tribunal’s reasons suggests that the finding was made on the basis that the claim was implausible, given that the applicant had not been the subject of police attention for two years and “when troubles in the Punjab had at least subsided”; and the Tribunal’s view as to the implausibility of the evidence was given added strength by what it took to be the circumstance that the applicant had, in evidence before the Tribunal, claimed for the first time that, during their visit to his parents’ home, the police had threatened to kill the applicant.
The submissions for the applicant took two steps. First, the Tribunal misunderstood the evidence: the applicant had not said that on their visit to his parents, the police had threatened to kill him. Secondly, that being so, there was no basis for the Tribunal to conclude that the applicant’s account was implausible. It was not inherently implausible given the earlier detentions, the payment of bribes to secure the applicant’s release, the harassment between 1991 and 1993 and the rally which was planned; and the Tribunal relied on no other material for it, nor was there any such material to support a finding that the applicant’s account was implausible. Accordingly, there was no material before the Tribunal supporting its finding and the finding was therefore erroneous. The error was one of law.
If the Tribunal misapprehended the evidence and, as a result, made a finding which was not open on the material before it, no doubt counsel for the applicant was right in submitting that the error (on that assumption) made by the Tribunal was one of law: counsel referred to Holloway v McFeeters (1956) 94 CLR 470 and Jones v Dunkel (1959) 101 CLR 298: see also, in a context closer to the present, Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 407. Whether such an error is open to review on the ground provided in s 476(1)(e) is a more difficult question: to attract review under that provision, the error of law must be one:
“involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”
by the Tribunal and the context, particularly paras (a) and (g) of s 476(1), may indicate that an expansive interpretation of para (e) is not appropriate: Epeabaka at 407. Like Finkelstein J in Epeabaka, I need not resolve the difficulty because, like his Honour, (Epeabaka at 406-407; Thambythurai at 7-12), I think that the error (if it is one) is of a kind which is, in any event, on the construction adopted by the majority in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300, reviewable under s 476(1)(a).
The question then is whether the Tribunal has in fact made the error attributed to it by the applicant. In considering that question it is necessary to bear in mind the well settled approach restated in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 as follows:
“ … the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. … In the present context, any court reviewing a decision upon refugee status must be aware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision.”
The applicant gave his evidence before the Tribunal through an interpreter. His account, as it emerged through the interpreter and a few words of English used by the applicant himself, is by no means clear or easy to follow. What is clear, however, is that the applicant gave an account of three particular episodes, the two occasions on which he was detained by the police and tortured and the third on which the police, as he claimed, threatened his parents in 1995 and then came looking for the applicant in Haryana. After an account of events following the 1991 detention, the transcript records the following:
“A (intprtr) After that we didn’t have a big rally but police kept an eye on us.
Q128How did you know that?
A (intprtr) Kept watch on us.
Q129Mm’hm
A (intprtr) The police when we were at home they used to threaten us that leave what we are doing otherwise we’ll be killed.
Q130I don’t think you’ve mentioned that before.
A (intprtr) We were going to have a rally on 4th of June but on 2nd day they raided my house.
Q131Raided your parents’ house or your house?
A (intprtr) My parents’ home on 2nd of June.
Q132Mm’hm. Were you there?
A (applcnt) No.
A (intprtr) I was not there at that time, I was staying in Haryana.
A (intprtr) They broke a lot of things at my home and they asked them about me and they abused my mother and my father.
Q133Mm’hm.
A (intprtr) When they were threatened they told them that I must stay at Haryana, Haryana.”
That passage illustrates clearly enough the difficulty faced by the Tribunal member in understanding the applicant’s evidence. Counsel for the applicant suggested that the third answer in that passage related to the period before the applicant’s departure for Haryana. Given what immediately follows (and given also what appear to have been some difficulties with interpretation; see the last answer, where the words “must stay” are very curious) it may well be that the applicant was speaking of the June 1995 episode, and given the terms of the Tribunal’s finding, that may well be how the Tribunal member understood it (though a reading of the material before the Tribunal suggests that the Tribunal member’s observation “I don’t think you’ve mentioned that before” would be equally accurate, whether it referred to the June 1995 incident or the period between the applicant’s second detention and his move to Haryana). Towards the end of the hearing before the Tribunal, the Tribunal member indicated that she had no more questions to ask of the applicant or matters to put to him and asked the applicant whether there were any other things that he wished to say. The applicant, after referring to a number of historical matters concerning the Sikh people, said this:
“If I do something what happened as a result of that we get caught, see, then they took money from me and let me go twice. Then third time they threaten my parents that if they don’t stop your son we’ll get, than we’ll kill him.”
That passage, particularly, was relied on by counsel for the Minister as supporting the Tribunal’s understanding that the applicant had, in his evidence, asserted that in June 1995 the police threatened the applicant’s parents that they would kill him (it was not in dispute that no such allegation had been made by the applicant in earlier documents or interviews). Counsel for the applicant submitted that it was rash, and wrong, for the Tribunal to conclude that “third time” was meant as a reference to the visit in June 1995. I have read, and re-read, the transcript of the hearing before the Tribunal. One thing seems to me to emerge from it: there are three episodes which stand out, and to which the applicant returns: the two detentions and the events of June 1995. Reading the evidence as a whole and considering particularly the passages which I have quoted, I think the Tribunal was justified in taking it that the threats to which the applicant referred were claimed to have been made on the visit by the police, in June 1995, to the home of the applicant’s parents. Once that step is taken, it becomes clear in my view that the Tribunal has made a finding of implausibility based principally upon the view taken by it (a view which was open, in my view) of the country information which it had from various sources, supported by what the Tribunal perceived (and was entitled to perceive) as an inconsistency in the applicant’s account. It follows in my view that the Tribunal made a decision open to it on the merits and that the legal grounds on which the applicant sought review have not been made out.
Accordingly, the orders of the Court are that the decision of the Tribunal is affirmed and that the applicant is to pay the respondent’s costs.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane
Associate:
Dated: 14 July 1998
Counsel for the Applicant: Mr R.B. Wilson Solicitor for the Applicant: Janice Vu & Associates Counsel for the Respondent: Ms A.F. Backman Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 26 June 1998 Date of Judgment: 14 July 1998
0
12
0