Singh, Amarjeet v Minister for Immigration and Multicultural Affairs

[1998] FCA 1191

FEDERAL COURT OF AUSTRALIA

Migration – whether Tribunal failed to act in accordance with substantial justice and the merits of the case – whether Tribunal misconstrued the manner in which applicant elected to prosecute his application – whether Tribunal failed to make appropriate inquiries to verify applicant’s claims – whether the Tribunal’s findings were based on a fact which did not exist.

Migration Act 1958

“Applicant A” v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 - cited
Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 - cited
Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 – cited
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 – cons.
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 - cited
Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565 - cited
Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 – dist.

AMARJEET SINGH V MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 202 OF 1998

JUDGE:         BEAUMONT J.
PLACE:         SYDNEY
DATE:           8 SEPTEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 202 of 1998

BETWEEN:	AMARJEET SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		BEAUMONT J.
DATE OF ORDER:		8 SEPTEMBER 1998
WHERE MADE:		SYDNEY

ORDERS:

1. Application dismissed with costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 202 of 1998

BETWEEN:	AMARJEET SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	BEAUMONT J.
DATE:	8 SEPTEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BEAUMONT J.

By his amended application filed on 29 July 1998, the applicant seeks judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 23 February 1998 to affirm the decision previously made on behalf of the Minister not to grant the applicant a protection visa. 

The background to the Tribunal's decision is that the applicant, who is a citizen of India, arrived in Australia on 15 July 1995.  On 16 August 1995 he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (“the Act”). On 18 March 1997 a delegate of the Minister refused to grant a protection visa. On 14 April 1997 the applicant applied to the Tribunal for a review of that decision. As has been noted, on 23 February 1998 the Tribunal decided to affirm the Minister's decision.

In its reasons for decision the Tribunal outlined the terms of the 1951 Convention relating to the Status of Refugees, as amended, and as picked up by ss 5(1) and 36(2) of the Act. The Tribunal went on to state the ingredients of a claim for refugee status as defined in Article 1A(2) of the Convention. The Tribunal next summarised the established course of authority in this area in the decisions of the High Court in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379, “Applicant A” v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 and Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, and referred also to the decision of this Court in Ram v Minister for Immigration and Ethnic Affairs (1995) 57 FCR 565. The summary given by the Tribunal of the general legal principles applicable in this area, as established by that line of authority, is, in my view, a fair summary and indeed, that part of the Tribunal's reasoning is not sought to be challenged in this proceeding.

In its reasons, the Tribunal then went on to describe the claims made by the applicant and the evidence in that connection.  It is not necessary that I attempt to summarise that material which appears at pages 4 to 11 of the Tribunal's reasons.  It is sufficient for present purposes to merely note that in that part of its reasons the Tribunal discussed at some length the evidence relied on by the applicant in support of his claim that as a Sikh he had been not only interrogated, but also tortured by the authorities, in particular, the Punjabi police.

The Tribunal's reasons in dealing with the applicant's claims and evidence in support of his claims also considered the position in the Punjab in a more general way and, in particular, referred to evidence in documentary form to the effect that in the opinion of some at least:

“…people who are not high profile militant suspects are not at risk in the Punjab today.  …the high-profile suspects might include a perceived leader of a militant organization, or someone suspected of a terrorist attack.  …Sikhs with some slight perceived connection to the militancy - through a family member, for example - would not now be targets of the Punjab police.  Ravi Nair defined a high profile individual as someone suspected of anti-state activities by the Indian authorities.”

The Tribunal proceeded then to express its "findings and reasons" as follows:

“FINDINGS AND REASONS
The Tribunal does not accept the claims, presented for the first time at the Tribunal hearing, that the Applicant was tortured and detained by the Punjabi police.  The Tribunal rejects these claims firstly, because he had four previous opportunities to provide details about treatment by the Punjabi Police but failed to do so.  The Tribunal does not accept he did not know what to say in his application as he focused on some potential refugee matters in his claim but different and less significant claims than those he made at the Tribunal hearing.  Secondly, the Tribunal considers it implausible that he would claim in his primary application that he sought the protection of the Punjabi Police and that nothing happened if in fact his complaint to the police had resulted in his brutal torture and detention by the police.  It is implausible that he would mention that he sought the protection of the police when he now claims it was the police he feared as well as the terrorists.  Thirdly, it is not consistent with a plausible claim that he would write about his inability to find employment as a pilot as a result of terrorist threats but fail to mention the torture and brutality of police which he claimed caused the same consequences.  Fourthly, the inconsistency between the original application and his later claims is such that the Tribunal does not believe the later claims.  In response to the question ‘Who do you think may harm/mistreat you if you go back?’ the Applicant responded ‘The terrorist (please refer to my letter)’.  In response to the question ‘Why do you think they will harm/mistreat you if you go back?’ he wrote ‘Because I cannot do what they want me to do they are forcing me to join them to do bad which I cannot do’.  He made no mention of the difficulties he later claimed he faced with the police.

The Tribunal accepts that the Applicant may have encountered threats from terrorists but finds that such threats no longer give rise to a well founded fear of persecution.  The Tribunal accepts that there are still difficulties in the Punjab and that a full political settlement has not been reached.  However, reliable country information indicates a rapid decline in the level of militant activity in the Punjab over the years since the Applicant left in July 1995.  Although some clashes between militants and security forces still occur the overall level of violence remains low and reflects the virtual return to normalcy in the state.  The Tribunal makes its finding on the basis of the evidence that the decreased threat of militancy has much reduced the scale of violations of human rights and there is a greater willingness on the part of the judiciary to investigate abuses.  The Tribunal accepts that the Applicant may have been interrogated by the Punjabi police as he stated this in his Application for Review.  However, given the change in circumstances since his departure from the Punjab and recent country information concerning the improved behaviour of the police the Tribunal does not accept that this now gives rise to a well founded fear of persecution for this Applicant.  The Tribunal accepts the evidence of independent commentators who met in Canada who agreed that in recent years the central government has been attempting to rein in the Punjab police, who during the insurgency were responsible for large numbers of extrajudicial executions and disappearances.  The Tribunal finds the Applicant is not a person who is at risk upon return to the Punjab as he is not a high profile militant suspect, a perceived leader of a militant organization, someone suspected of a terrorist attack or of anti-state activities by the Indian authorities.  The Tribunal makes this finding on the basis of his own evidence that his fear arises because of general abuse by the police but not for a specific reason related to his involvement in any organisation or movement.  There is no evidence to indicate that the Punjabi police or terrorists have a particular interest in this Applicant for any reason.”

The Tribunal went on to say, by way of conclusion, that having considered the evidence as a whole it was not satisfied that “the applicant is a person to whom Australia has protection obligations”.

When the matter first came before me for hearing the respondent appeared in person.  He is an airline pilot but I did advise him to seek legal assistance with a view, at least, to filing a written submission explaining his case.  I am pleased to say that the applicant was able to obtain the benefit of legal advice and subsequently Mr David Godwin acted for the applicant in the matter.  The Court is always grateful for the considerable assistance that it receives from practitioners in this area.

The applicant then sought leave in writing to file an amended application, and this was not opposed. This amended application was filed on 29 July 1998. There were two grounds set out in the amended application. The first is that the procedures required by the Act were not complied with, and s 476(1)(a) of the Act is relied on in this connection. Under the first aspect of this ground, it is submitted that the Tribunal failed to act in accordance with substantial justice and the merits of the case in two respects: (1) that the Tribunal made findings about the applicant's claims which were based on a misconstruction of the way the applicant chose to prosecute his application; and (2) that the Tribunal failed to make appropriate inquiries which would easily have verified the claims made by the applicant. With respect to the alleged misconstruction, Mr Godwin refers to the statement in the findings of the Tribunal that it did not accept the claims, presented for the first time at the Tribunal hearing, that the applicant was tortured and detained by the Punjabi police, and that this rejection was, inter alia, because the applicant had four previous opportunities to provide details about treatment by the police.

It appears that the four previous opportunities were the applicant's original application, an invitation to respond to a letter from the Department dated 14 February 1997, an invitation to send written arguments to the Tribunal in a letter dated 15 April 1997 from the Tribunal and finally, a similar invitation from the Tribunal to provide written arguments in its letter dated 15 January 1998.  On behalf of the applicant it is submitted that the inference should be drawn that the applicant was awaiting an oral hearing before putting the whole of his case and was asserting that he had not previously put all his claims and, in particular, his claim of being interrogated by the Punjabi police.
In my opinion, no ground for judicial review has been made out in this area.  As the argument put on behalf of the applicant fairly acknowledges, this was only one of the reasons relied upon by the Tribunal for rejecting the applicant's claim.  In my view, the applicant had every opportunity, over a considerable period of time, to state and to provide evidence if he could, to support his claim that he feared torture and detection at the hands of the Punjabi police.

The next aspect of the first ground of the amended application is that there was a breach of s 427 of the Act, that is, a failure to make further investigations. In this connection, the applicant relies upon the circumstance that at the hearing he produced a medical certificate indicating that he had been referred to an orthopaedic surgeon as he had “multiple painful nodules in both legs”.

On behalf of the applicant it is submitted that the veracity of these claims could easily have been verified by the Tribunal requesting a further medical examination of the applicant.  I accept that, in this area, there may be questions of degree that can arise in which, in an extreme case, it may be seen that the Tribunal has, in substance, abdicated its real function (see Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 (at 548)). However, I cannot regard the circumstances of the present case as falling into that extreme category and I am not satisfied that this ground of review is made out.

The second ground of the amended application is that there was no evidence to justify the Tribunal's decision;  here reliance is placed upon the provisions of ss 476(1)(g) and 476(4)(b).  It is said in development of this ground that the Tribunal based its decision on the fact that the applicant had four previous opportunities to provide details of his treatment by the police and failed to do so and that fact did not exist.

For present purposes, I accept that I am bound by the decisions of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 and Sun Zhan Qui.  In those cases it has been held that a failure to adopt procedures which are directed to affording substantial justice and determining the merits of the case may result in a breach of s 476.  I also accept that it is open in an application for judicial review to establish that a decision based upon the existence of relevant facts is vitiated where that fact did not exist (see Curragh Queensland Mining Limited v Daniel (1992) 34 FCR 212 per Black CJ at 221-3), but in my view the present case does not have this dimension.
The Tribunal did accept the claims of the applicant that he had been interrogated by police.  The real point of departure was the applicant's claim that on the occasion of the police visit to his family home the applicant had then been tortured.  The conclusion arrived at by the Tribunal in rejecting the claim of torture was a factual one.  On all of the material it seems to me that it was open to a tribunal of fact so to conclude and this ground of judicial review is, in my view, no more than an attempt to ask this Court to review a factual matter which, as the structure of the Migration Act in its amended form and the clear line of authority of the High Court establishes beyond question, are matters within the exclusive responsibility and authority of the Tribunal and not of this Court.

For those reasons I dismiss the application. 

ORDERS

I order that the application be 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 Beaumont

Associate:

Dated:             8 September 1998

Counsel for the Applicant:	Mr David Godwin
Counsel for the Respondent:	Mr Robert Beech-Jones
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	1 July 1998
Date of Judgment:	8 September 1998