Singh, Balwir v The Minister for Immigration & Multicultural Affairs
[1997] FCA 1285
•14 NOVEMBER 1997
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - Refugees - determination of refugee status - reliance on official document of foreign origin - authenticity of document in question - whether Refugee Review Tribunal is obliged to seek independent evidence concerning authenticity of document.
Migration Act 1958 (Cth)
Chan Yee Kin v Minister for Immigration and Ethnic Affairs 169 CLR 379, cited.
Eshetu v Minister for Immigration and Multicultural Affairs 145 ALR 621, cited.
Minister for Immigration and Ethnic Affairs v Singh 144 ALR 284, cited.
BALWIR SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
No SG 39 of 1997
LOCKHART, OLNEY AND VON DOUSSA JJ
ADELAIDE
14 NOVEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
NO SG 39 of 1997
GENERAL DIVISION
BETWEEN:
BALWIR SINGH
APPELLANTAND:
THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENTCOURT:
LOCKHART, OLNEY AND VON DOUSSA JJ
DATE OF ORDER:
14 NOVEMBER 1997
PLACE:
ADELAIDE
THE COURT ORDERS THAT:
The appeal be dismissed.
The appellant pay the respondent’s costs of the appeal.
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 39 of 1997
GENERAL DIVISION
BETWEEN:
BALWIR SINGH
APPELLANTAND:
THE MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT
COURT:
LOCKHART, OLNEY AND VON DOUSSA JJ
DATE:
14 NOVEMBER 1997
PLACE:
ADELAIDE
REASONS FOR JUDGMENT
THE COURT
This is an appeal from the decision of a single Judge dismissing an application by the appellant for review of a decision of the Refugee Review Tribunal (the Tribunal) affirming the decision of a delegate of the Minister for Immigration and Ethnic Affairs (the Minister) refusing to grant the appellant a protection visa.
The central issue before the Tribunal was whether or not the appellant is a non-citizen of Australia to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (Migration Act1958 (Cth) s 36(2)). As a party to both instruments Australia has protection obligations to persons who are refugees as defined therein. The relevant definition refers to a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.
The term ‘well-founded fear’ contains both a subjective and an objective requirement. Subjectively, the appellant must actually be in fear and objectively the fear must be well founded in that there is a real chance that the appellant will be persecuted if he is returned to his country of nationality (Chan Yee Kin v Minister for Immigration and Ethnic Affairs 169 CLR 379).
BACKGROUND
The appellant is an Indian national. He arrived in Australia as a visitor on 27 June 1991. On 20 September 1991 he applied for a protection visa which the Minister’s delegate refused on 19 December 1995. An application to the Tribunal resulted in a determination that the appellant was not a refugee and on 22 May 1997 an application for review made to the Federal Court was dismissed. The present appeal is from that decision.
The appellant first visited Australia in November 1987, stayed for about five months and then returned to India. In November 1990 he visited relatives in England and whilst there obtained a visa to visit Australia. He returned to India in May 1991 and then in June 1991 travelled to Australia where he remains.
His claim to refugee status is essentially that he supports the cause of the Sikh people and a political party associated with the Sikh religious movement and although he says he had in the 1970s and early 1980s attended protest marches, demonstrations and public meetings, the principal thrust of his case does not rest so much on his own activities but on those of his elder son Balwinder and, to a lesser extent, his younger son Mandhir.
Balwinder’s political activities came to the attention of the police in late 1985 as a result of which he (Balwinder) had to “go underground”. The appellant says that in June 1986 he (the appellant) was taken to a police station where he was detained for six days, and in November 1986 he says he was again detained, on this occasion for three days. As a result of these incidents he says he lived in fear. He says further that in June 1990 he was again arrested and released after two days. He also gave evidence to the Tribunal that his wife (who had returned to India from Australia to care for their younger son) had been beaten by the police.
In 1988 Balwinder went to Japan but was deported from Japan to India in late 1991 and then went into hiding.
The appellant produced to the Tribunal two documents entitled “Arrest Warrant”. One is dated 15 February 1996 and the other 27 February 1996. The first purports to require the arrest of Balwinder, the second, of Mandhir. The Tribunal found that the ‘arrest warrants’ were not genuine.
Although it had reservations as to the appellant’s credibility the Tribunal nevertheless assumed in his favour that, being outside his country of origin, he had a subjective fear of persecution should he return.
After canvassing in detail the material placed before it the Tribunal concluded that if the appellant were to return to India there is only a remote chance of him being persecuted by reason of his Sikh religion or his political opinion. In reaching this conclusion the Tribunal said:
To summarise, despite his claims to have been at risk at the time when the situation in Punjab was particularly bad, the applicant did not seek refugee status on his first visit to Australia and gave what I regard as inadequate reasons for not having done so. Further, in 1991 he did not seek refugee status during his stay in England and, despite his stated fear, he decided to return to India for a few weeks instead of coming to (sic) straight to Australia. The applicant’s claim to fear persecution depends on his claim that his sons are sought by the authorities. However, I have found that the ‘arrest warrants’ he has submitted in their names are not genuine and that a number of other claims, such as the claim that his wife was beaten is not genuine, raising a question of credibility in his overall evidence. The evidence also indicates that there has been a substantial improvement in the human rights situation in Punjab since the applicant left.
THE ARREST WARRANTS
The reasoning which led the Tribunal to conclude that the arrest warrants are not genuine was expressed thus:
The document pro-formas, which have been filled in by ball-point, are obviously photocopies - and very poor copies at that, some words being barely readable. In this regard, comments made in a report by the Department’s Document Examination Unit (DEU) in relation to photocopied ‘warrants’ in connection with another matter (Tribunal decision V95/03901) are equally applicable here. The DEU report stated:
This is very uncommon in the source country where the cost of printing forms in bulk is considerably less than the cost of individually photocopying an original document.
The pro-forma also includes alongside the words “Dated this .......’, the date ‘198...’ (The fourth digit is not clear). If the document were to be taken as genuine, this indicates that the document has not been re-printed but has been photocopied for at least six years, which, having regard to the above DEU comments I do not find credible.
The pro-forma misspells the word ‘Magistrate’ as ‘Magisterate’ twice. The word appears a third time on the pro-forma but the quality of reproduction is so poor that the spelling cannot be made out. The word ‘surety’ is also misspelt ‘suriety’.
The pro-forma states ‘Name and designation of person who is to executed’ instead of ‘... person who is to execute’.
Further, the document is clearly an instruction to the arresting officer to arrest the person named and to produce him before a magistrate. It is not designed to be given to the person to be arrested or to his family.
In the case of Mandhir, as stated above, the situation in the Punjab has changed significantly since the applicant left, making it unlikely that the authorities issued an arrest warrant in his name merely because he used to give food to militants.
Having regard to the foregoing, I find that the ‘arrest warrants’ submitted are not genuine and, having regard to the fact that the applicant’s claim to refugee status is dependant (sic) upon his claim that his sons are wanted by the authorities, have been provided for the purpose of enhancing the applicant’s claim.
THE APPLICATION FOR REVIEW
It is unnecessary to recite in detail the grounds upon which the appellant sought review of the Tribunal’s decision. For present purposes it is sufficient to identify the relevant provisions of the Migration Act upon which the appellant relied. They are:
(2) The Tribunal, in reviewing a decision:
(b)must act according to substantial justice and the merits of the case.
427. (1) For the purpose of the review of a decision, the Tribunal may:
(d) require the secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination.
475. (1) Subject to subsection (2), the following decisions are judicially- reviewable decisions:
(b)decisions of the Refugee Review Tribunal;
476. (1) Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:
(a) that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed;
(e) that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision;
(g)that there was no evidence or other material to justify the making of the decision.
The preponderance of judicial opinion within the Federal Court is that the failure by the Tribunal to act according to substantial justice in reviewing a decision amounts to the non-observance of a procedure required by the Act to be observed in connection with the making of a decision and thus is a ground upon which the Federal Court may review the decision of the Tribunal (Eshetu v Minister for Immigration and Multicultural Affairs 145 ALR 621).
At first instance his Honour concluded that the appellant had not demonstrated any error of law in any part of the Tribunal’s reasons. In determining the application for review he concluded that there were justifiable reasons entitling the Tribunal to find that the warrants were not genuine; that the Tribunal’s findings with respect to the warrants were conclusions to which it was entitled to come; and that if there is a need for the Tribunal to make independent investigations (as to which he expressed no opinion) that need did not arise in this case. In view of this conclusion he had reached in relation to the genuineness of the arrest warrants his Honour found it unnecessary to investigate a further ground of review based on s 476(1)(a).
THE GROUNDS OF APPEAL
The grounds upon which the appeal to this Court is brought are:
2.The learned Judge, having acknowledged that the Refugee Review Tribunal (the Tribunal) assumed that the applicant, being outside his country of origin, had a subjective fear of persecution should he be returned, erred in finding that in this case there were justifiable reasons entitling the Tribunal to find that the two arrest warrants issued against the applicant’s sons Balwinder Singh and Mandhir Singh were not genuine.
3.The learned Judge erred in finding the Tribunal’s findings with respect to the arrest warrants were conclusions to which it was entitled to come.
4.The learned Judge having acknowledged that the Tribunal had assumed that the applicant had a subjective fear of persecution, and the Tribunal having made a finding that the applicant’s claim to refugee status is dependent upon his claim that his sons are wanted by the authorities, erred in finding that if there is a need for the Tribunal to make independent investigations concerning the authenticity of the arrest warrants, then that need did not arise in this case.
These grounds have to be understood in the context of the basis upon which the review application was conducted. The real basis of the appeal is that it is said his Honour erred in not deciding that procedures that were required by the Migration Act to be observed in connection with the making of the Tribunal’s decision were not observed. The particular procedure said to have not been observed is the requirement that in reviewing a decision of the Minister’s delegate the Tribunal must act accordingly to substantial justice and the merits of the case. The particular manifestation of the Tribunal’s alleged failure to accord substantial justice is said to be its failure to seek to have the arrest warrants authenticated through official channels pursuant to its powers under s 427(1)(a).
A DUTY TO AUTHENTICATE?
The question of whether the Tribunal has an obligation to submit an official document issued in a foreign country for verification through official channels was considered by the Full Court in Minister for Immigration and Ethnic Affairs v Singh 144 ALR 284 in which the majority (Black CJ, von Doussa, Sundberg and Mansfield JJ) said at p 290-291:
Accepting for the purposes of argument that s 420(2)(b) requires a procedure to be observed in connection with the making of a decision within s 476(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. ...
... 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. ..
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.
The foregoing is a recent and authoritative statement relating to the construction and application of the relevant provisions of the Migration Act, and it reflects the approach applied by the primary Judge in this case.
It may be that, faced with two documents which are mutually inconsistent, in the absence of any evidence to suggest which of them may be genuine, the Tribunal would be obliged to call for an independent investigation and report before accepting one but not the other. Be that as it may, it would be a hazardous path for the Court to tread to attempt to generalise about the circumstances in which the Tribunal’s obligation to act according to substantial justice requires it to call for the investigation of and a report on the authenticity of a document, but it can be said with confidence that if there is cogent evidence upon which the Tribunal is entitled to form a conclusion, it may act on that conclusion without being obliged to take steps of its own to investigate the authenticity of the document in question.
The issue in this case is whether the material before the Tribunal entitled it to form the view that the arrest warrants were not genuine.
The Court is of the view that the reasoning adopted by the Tribunal, based as it was on the material before it, was a logical and reasonable response on the facts of the case. There is therefore no basis upon which to conclude that the Judge at first instance erred in the manner asserted in the grounds of appeal. The Tribunal’s conclusions were clearly open to it on the evidence and there was nothing about the case which could be said to amount to a compelling reason for the Tribunal to seek to have the authenticity of the arrest warrants tested by some external authority.
CONCLUSION
The appellant has not made out any of his grounds of appeal. The appeal will be dismissed with costs.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of Justices Lockhart, Olney and von Doussa.
Associate:
Dated: 14 November 1997
Counsel for the Appellant: Mr M. W. Clisby Solicitor for the Appellant: Gilbert Santini Counsel for the Respondent: Ms S.J. Maharaj Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 12 November 1997 Date of Judgment: 14 November 1997
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