Singh,Daljit v Minister for Immigration and Multicultural Affairs
[1998] FCA 289
•5 MARCH 1998
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VG 141 of 1997
BETWEEN:
DALJIT SINGH
ApplicantAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
JUDGE: CARR J DATE: 5 MARCH 1998 PLACE: MELBOURNE
MINUTE OF ORDERS
THE COURT ORDERS THAT:
Application be dismissed.
Applicant pay the respondent’s costs of the application.
NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VG 141 of 1997
BETWEEN:
DALJIT SINGH
ApplicantAND:
MINISTER FOR IMMIGRATION AND
MULTICULTURAL AFFAIRS
Respondent
JUDGE: CARR J DATE: 5 MARCH 1998 PLACE: MELBOURNE
EX TEMPORE REASONS FOR JUDGMENT
INTRODUCTION
The applicant applies for review of the decision of the Refugee Review Tribunal to refuse him refugee status. He is a 44 year old married male Indian citizen of the Sikh religion. The applicant was granted a visitor visa in New Delhi on 3 September 1993 and arrived in Australia on 23 September 1993. On 9 February 1994 the applicant applied to the respondent for refugee status in Australia. On 28 June 1994 a delegate of the respondent determined that the applicant was not a refugee and refused his application. On 9 February 1995 the applicant applied for a protection visa. On 11 September 1995 a delegate of the respondent refused that application. On 10 October 1995 the applicant applied to the Refugee Review Tribunal, which I shall refer to variously as “the RRT” or “the Tribunal”, for a review of that decision. The RRT held a hearing on 22 November 1996. On 6 March 1997 the RRT affirmed the primary decision. On 8 April 1997 the applicant lodged in this Court an application to review the RRT’s decision.
THE STATUTORY FRAMEWORK
The relevant criteria for the grant of a protection visa are set out in s 36(2) of the Migration Act 1958 (“the Act”) and Clause 866 of Schedule 2 to the Migration Regulations. One basic criterion is that the respondent is satisfied that an applicant for such a visa is a person to whom Australia has protection obligations under the terms of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol. The relevant part of Article 1 of the Convention defines a “refugee” as any 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 ...”.
It is important in cases of this type to keep in mind the Court’s function. The Court’s role is to examine the matters specified in the grounds of review. It is not the function of the Court to review the merits or decide the facts of the case. The facts are for the maker of the administrative decision, in this case the Refugee Review Tribunal. This Court’s function is to ascertain whether there was anything having the nature of an error of law in the Tribunal’s decision including any error in the approach which it took to deciding the questions before it. In particular (on the present state of the authorities) was there a failure to comply with the requirements of s 420 of the Act or does any matter otherwise arise under s 476 of the Act?
THE APPLICANT’S CLAIMS
The applicant claimed to have been a member of a political party known as the Akali Dal (Mann) in India. In 1989 he was called, together with all other active members, to a meeting of the party in Amritsar at which a plan was put forward by the leader of the party to free the Golden Temple from occupation by the Indian paramilitary forces and the Punjab Police. While the applicant was marching with other members of the party, they were blocked by paramilitary forces and police, who charged at them with sticks in order to disperse the crowd. The applicant was among workers and senior leaders of the party who were sent to the central gaol and, at the government’s instruction, harassed and detained for approximately two months.
Two years later the applicant was arrested again. The applicant claimed that following an attack on the Kila Raipur railway station on 5 June 1991, during which militants killed forty train passengers, he was arrested and taken to the police station for investigation with hundreds of other suspects from his village. He said that he was interrogated by the police because he was a Sikh and an active member of the Akali Dal, and because the police had heard from others that the militants had rested at his farm before the incident. Although the applicant, the Panchayat (which I take to be local council members) and the villagers assured the police that the applicant had no connection with the militants and had not been involved in the killings, he was beaten by the police and threatened that he would be killed in a “fake encounter” when he was unable to answer questions about the names and hide-outs of the militants. The applicant told the respondent and the RRT that seven of the militants had stayed at his farm by force before the killings at the railway station. He knew some of them as having come from a neighbouring village. After remaining in custody for a number of days, the applicant was released upon payment of a surety bond following further assurances and pressures from the Panchayat and from Panthick Dal members. He said that the police had told him not to go anywhere without first informing them until their investigation was completed. The applicant’s family had sent him to other parts of India to save his life. However, so the applicant claimed, both the police and the terrorists pursued him, after threatening his family. The applicant stayed with various friends, but said that he had to move about to avoid the armed forces, Punjab Police and the terrorists. His friends, when asked, said that they did not know his whereabouts and informed him by telephone of such enquiries so that he could escape. The applicant claimed that the police had taken his wife and his father to the police station to find out where he was hiding, but they had told the police that they did not know. In 1991 the applicant left his village and decided to leave India forever. In 1993 he obtained, through an agent, a visa to travel to Germany. He left India for Germany on 12 May 1993. The applicant stayed in Germany for about 5½ weeks but, because of problems with language and climate, his agent advised him to return immediately to India. He did so. After returning from Germany on 18 June 1993, the applicant said that once more he had to live in constant fear of death. He told his agent that he did not like the climate in Germany. He had an arrangement with his agent that, in those circumstances, the agent “would send him to another country”. His agent was able to acquire for him, after about three months, a visa to travel to Australia and accordingly he left India on 22 September 1993. The applicant said that what he had told his agent about the climate in Germany was simply an excuse. The reality was that he feared a “group” which attacked the place where asylum seekers were accommodated in Germany. As well, he had heard that the German government had announced that it would no longer be granting refugee status. The applicant stated that he did not wish to return to India because he did not want to live under constant fear of death either at the hands of the police or the militants. He feared arrest on return and being killed in a “false encounter”. The applicant said that he believed that the Indian Government will not “spare his life at any cost” because they think that he is a terrorist involved in the killing of the train passengers at Kila Raipur. Further he feared that the militants would not spare him or his family as they think that he informed the police about them after they had killed the passengers. He claimed that the Indian authorities cannot provide him with protection and that he will still suffer harm from the militants and remain without protection even if he were to relocate to another part of India.
THE TRIBUNAL’S REASONS
The Tribunal accepted that the applicant had a subjective fear of persecution. Complaints are made, to which I will come in a moment, about the manner in which the Tribunal reached that finding. The Tribunal considered that the applicant’s claims on the grounds of his race were also to be regarded as claims which fell within religious grounds. The Tribunal accepted that the applicant was reluctant to return to India, and to the Punjab in particular, because of the violence and civil unrest pervading the region at the time of his departure which, so the Tribunal said, had given rise to his claims of a fear of harm. The Tribunal then embarked on a meticulously careful examination of reports from sources which included the (Australian) Department of Foreign Affairs and Trade (DFAT), the United States Department of State, a series of newspaper articles, reports from human rights monitoring groups and opinions from academics and other experts in the field. It summarised its examination in some fourteen pages of its reasons.
The Tribunal concluded that it was evident from the information, which it had reviewed, that there had been a dramatic and sustained improvement in the situation in the Punjab in recent years, and in particular since the applicant’s departure from the region in 1991. The Tribunal found and expressly acknowledged that the Punjab police and central security forces “have not altered their methods overnight”. It accepted that a person who remained “on the records” for Sikh extremist activity might still be of interest to the authorities now, particularly in the wake of the assassination of Chief Minister Beant Singh in August 1995. The Tribunal accepted that the applicant had been the victim of abusive behaviour by the Indian Security Forces. It accepted as being plausible, the applicant’s account of his arrest and detention for two months following the protest in Amritsar in April 1989. It accepted that his treatment in June 1991 should be regarded as an act of persecution. However, for reasons which it stated most carefully, the Tribunal concluded that the applicant was no longer of adverse interest to the authorities at the time of his departure from Kila Raipur in June 1991. The Tribunal noted that the applicant had made no claim of any further difficulties with the authorities, or militants, between then and the time when he first departed India for Germany in May 1993 - a period of almost two years. The Tribunal rejected the applicant’s claim that this was because he was in hiding. The Tribunal found on the evidence that the applicant could not have passed through a departure point in India, such as an airport, using his own legally-acquired passport, if he were wanted by the authorities. The applicant produced, as part of his documentary evidence, a police report of 16 June 1991 and what was said to be a warrant (“the Warrant”) for his arrest issued on 1 July 1991. The Tribunal decided that it was unable to find that either the Warrant or a police request for issuance of the Warrant dated 30 June 1991 (“the Documents”) were genuine. It gave its reasons for so doing. Those reasons included reliance on a DFAT “country profile” on India. The Tribunal expressed its conclusions as follows:
“I am unable to find that the Applicant’s fear of persecution is well-founded. The elimination of militant activity and return to normalcy in the Punjab, the establishment of mechanisms to oversight the conduct of security forces and to redress grievances arising out of their abusive conduct, together with a shift to more moderate platforms by political parties representing Sikhs now meeting with electoral success in the region, are all factors which combine to reduce to remote or insignificant the chance that the Applicant will suffer persecution on return to India due to his religion or his political opinion. Should the Applicant not wish to return to the Punjab to live in light of the turbulence of the past, it is open to him [to] relocate to other parts of India where there are concentrations of Sikhs. This is not an unreasonable option, given that the Applicant has demonstrated previously an ability to reside in other States of India without any difficulties. It is preferable to resettlement in a third country in the absence of well-founded fear of persecution.
In light of all the evidence, I consider there to be no viable alternative version of the facts which reveals a real chance of persecution for a Convention reason facing the Applicant on return to India today or within the reasonably foreseeable future.
Accordingly, having considered his claims cumulatively and individually, I do not find that the Applicant faces a real chance of persecution because of his religion or political opinion upon return to India at this time or within the reasonably foreseeable future in terms of the test laid down by the High Court in Chan.”
THE GROUNDS OF THE APPLICATION
The grounds of the application fall under four headings and I will deal with them in the same sequence as they were expressed in the application as amended and in the applicant’s summary of contentions.
Whether the required procedures were observed?
The applicant contended that procedures that were required by the Migration Act 1958 (Cth) (“the Act”) to be observed in connection with the making of the decision, were not observed [being the ground provided by s 476(1)(a) of the Act]. By way of particulars, the applicant complained that in reaching its decision, the RRT failed to consider in a balanced way, the totality of the material before it, and in particular material relating to whether or not the Warrant was genuine. There was a considerable degree of repetition both in the grounds of the application and in the submissions made on the applicant’s behalf. The matter of the Warrant was raised under each of at least three groups of the applicant’s grounds of complaint. It is convenient, therefore to deal with all of the submissions made in relation to the Warrant and then deal in sequence with the remaining submissions. The first complaint, that the Tribunal failed to consider in a balanced way the material relating to the Warrant and as to whether that Warrant was genuine is, in my view, a factual complaint. If I am wrong in that assessment, it can be seen that the Tribunal did in fact take a balanced approach. First it accepted as genuine the police report of 16 June 1991 which the applicant had submitted and which described the attack on the train at the Kila Raipur railway station. Then it rejected the Warrant and the police request for issue of the Warrant. It can be seen from its reasons to have taken this course because it did not believe (for the detailed reasons which it gave) that the Indian authorities had any adverse interest in him. I have already summarised those reasons but they included the implausibility (in the Tribunal’s view) that the Indian authorities would have twice detained the applicant, questioned and released him if they seriously suspected him of being implicated in a major terrorist incident. It was the Tribunal’s findings on these issues that caused it to reject the Warrant and related document. This in my view appears from the following passage in the Tribunal’s reasons (at p 28):
“However, in view of the issues raised above, I am unable to find to be genuine the warrant for the Applicant’s arrest which he has also submitted, nor the police request for issuance of the warrant dated 30 June 1991.”
the point being that the Tribunal's rejection was based on the issues which it had raised in its reasons “above”.
The Tribunal then noted what it regarded as some discrepancies in the documents which it had rejected. In my view, on the assumption (but without deciding) that the complaint raised on the grounds of balance is one which may be raised, the Tribunal can be seen to have considered this matter quite clearly in a balanced way. Counsel for the applicant, in written submissions, contended that the RRT had failed to have regard to the substance of the applicant’s claim. On the basis that the RRT did not make any finding contrary to the credibility of the applicant and his witness, the RRT, so it was submitted, should have found that the applicant had a profile in India by reference to his testimony. I interpolate here to note that there was at least one major credibility finding made by the Tribunal against the applicant. In my view, this complaint does not fall within any of the complaints permitted under the provisions of the Act upon which the applicant relies. This is a factual argument as to what the RRT should have found i.e. that the applicant had a “profile”. On the basis of the evidence to which I have just referred, the Tribunal found, and in my view was entitled to find, that the applicant did not have such a “profile”. I think it is sufficient to refer to the most unusual circumstance of a person claiming to be a refugee having once managed to flee to another country, in this case Germany, and then choosing to return five and a half weeks later to the same country from which he had departed as, on his case, a refugee fearing for his life, then three months later being able to pass through airport controls using his own passport. There was much more evidence than that. I return to the more particular complaints concerning the Documents that is, the Warrant and the police request for its issuance. The applicant contended that before dismissing the Documents (on what his counsel called “generalised and prejudicial assertions”) the RRT should have either had the Documents examined by the respondent’s Document Examination Unit and/or advise the applicant of its concern. A related complaint was made under ground 2 of the applicant’s grounds for review, that is, alleged errors of law. That complaint was that the RRT, so it was submitted, had failed to accept that the combination of the applicant’s evidence, the evidence of the independent witness in combination with the Documents produced from India, required it to consider whether it was necessary for it to obtain evidence from the Document Examination Unit as to the authenticity of the Documents or alternatively request the Secretary of the respondent’s department to arrange the making of an appropriate investigation so that the RRT could gauge the authenticity of the Documents. This was linked to a submission that the RRT failed to consider that there was logical and probative material which called for further examination of the arrest warrants.
There are of course, cases where a decision-maker’s failure to consider whether it was necessary to make enquiries or cause enquiries to be made, constitutes reviewable error. The question is whether, in failing to do so (assuming for the moment that this was the case in the present matter) the Tribunal failed to comply with its obligation to act “according to substantial justice, to provide a review mechanism that is fair and otherwise to comply with its obligations under s 420 of the Act - see Singh v Minister for Immigration and Ethnic Affairs (1997) 144 ALR 284 at 290-291 (Full Court); Li v Minister for Immigration and Multicultural Affairs (1997) 144 ALR 179; Abbouchi v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, unreported, Wilcox J, 4 February 1998, No. 87 of 1998; Balwir Singh v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Full Court, unreported, No. 1285 of 1997) and Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (Federal Court of Australia, Full Court, unreported, No. 1488 of 1997). The applicant in this matter was legally represented. His solicitor must be taken to have known that there was always a risk that a Tribunal might not accept documents of this type as being genuine. In fact the matter of the genuineness of the documents surfaced before the Tribunal, and I refer to p 30 of the transcript. So at that stage the applicant and his legal adviser were on notice. The applicant’s solicitor did not request the Tribunal to refer the Documents to the Document Examination Unit. In my view, in the circumstances of this matter, the Tribunal was not obliged to consider making or causing to be made the enquiries to which I have referred above, nor to advise the applicant of its concerns. The same applies, in my opinion, to the complaint that the Tribunal did not advise the applicant or his legal adviser that it would, on the applicant’s case, draw adverse inferences from the correspondence from the applicant’s wife and the letter in support from the General Secretary. As to the latter, again there is reference in the transcript at page 28, in the transcript before the Tribunal, to the fact that the General Secretary had not mentioned the question of the possible harm which might be suffered by the applicant on his return. That was put to the applicant on 22 November 1996.
It is also a debateable question whether it can be said that the Tribunal drew adverse inferences from the wife’s correspondence. I think that a fair reading of what the Tribunal did in relation to the wife’s correspondence was, in all the circumstances of its findings, simply to say that it was going to give no weight to that correspondence. Be that as it may, in the context of administrative law, I do not think it is a requirement of fairness, substantial justice, natural justice or, as it is more commonly called nowadays, procedural fairness, in the circumstances of the present matter for the Tribunal to be precluded from drawing adverse inferences from documents submitted by the applicant’s own solicitors without first informing them that it proposed to take that course. The applicant contended that the Tribunal failed to take into account in a real sense the difficulties faced by him in accessing police information. In particular, and in general, it was submitted that the Tribunal failed to allow the applicant the benefit of the doubt when assessing his claims to be a refugee.
It is true that the Tribunal did not in its reasons discuss whether the applicant would face any difficulty in accessing police information. However, in the context of the warrant and related documents, this works in the applicant’s favour. If in truth there are such difficulties in India, then the fact that the applicant produced such documents would be likely to form the basis of an adverse inference, i.e. that the documents were not genuine. That did not happen.
It can be seen from the Tribunal’s reasons that, after reviewing all the materials, it was not in a situation of having doubts to resolve. Accordingly, for those reasons it did not contravene the passage in the UNHCR handbook upon which the applicant relied in paragraph 2(c) of its outline. Furthermore, I accept the respondent's submission - in fact the text of the paragraph speaks for itself, and I quote:
“The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility. The applicant’s statements must be coherent and plausible and must not run counter to generally known facts.”
The reality of the situation here is that there were some critical findings of fact involving credibility which were made against the applicant. In my view, the substance of the complaint at paragraph 2(c) is not made out.
Whether the Tribunal Erred in Respect of the Matter of Internal Relocation
I now turn to the question of internal relocation. The complaint is that in concluding that the applicant could relocate in India the Tribunal did not give effect to its acceptance of the applicant and his witnesses as witnesses of truth. The finding, so it is submitted, is contrary to the applicant's claimed experiences while on the run in India between 1991 and 1993. In my view the Tribunal did not err in the manner so claimed.
First of all I refer to the very detailed country information upon which the Tribunal relied in forming its conclusion that there had been a radical change for the good in the circumstances in India, and in the Punjab in particular. Secondly, I repeat that there were credibility findings against the applicant. Thirdly, there were the findings that were particular to the applicant, that is, in addition to the findings relating to the political circumstances in the Punjab. The Tribunal disbelieved the applicant on his assertions that he was in hiding and found that he was able to live in other parts of India.
There was some complaint that the Tribunal failed to have regard to the matter of the applicant's inability to live other than in a community where there were other Punjabis. In that regard, that forms another aspect of the complaint, first of all that the matter of not accepting the applicant was not raised in substance with him. The transcript of the evidence before the Tribunal at page 43 discloses that it was put to him. I shall not read the passage at the bottom of page 43 of the transcript, but that is the passage to which I refer.
Then it is said that, to the extent that it was raised, the applicant had informed the Tribunal that he could only survive away from the Punjab by residing with Punjabi speakers alone, as I have mentioned. In the applicant's own application for the protection visa he sets out the languages which he speaks as being Punjabi, Hindi and English. In my view, for the reasons which I have just given, it was open to the Tribunal to make the findings. It gave the applicant a reasonable opportunity to make submissions on the matters of relocation to which I have just referred and it held that in all the circumstances, assuming there was still a well-founded fear of persecution, it would be reasonable for the applicant to relocate elsewhere in India.
Whether theTribunal Otherwise Erred in Law - s 476(1)(e) of theAct?
At the hearing this morning a considerable number of the errors relied upon - some seven of them - were not pressed, subject to a qualification relating to “the standard paragraphs”. However, before I turn to the question of the standard paragraphs there was one further allegation of legal error. That was said to be, “incorrect application of the law to the facts as found.”
What the applicant did here was to draw together his version of the factual matters, which he submitted the RRT had “apparently accepted”, namely the following that:
. that the applicant was a witness of truth;
. his witness was a witness of truth;
. the applicant was a supporter of the Sikh Independence Movement;
. the applicant was detained both in 1989 and 1991;
.the RRT did not, “doubt or controvert the applicant’s claim that he fled to Germany in 1993 with the intention of seeking asylum”; and
.the RRT accepted the evidence of the witness who asserted that as late as October 1996 persons from Australia returning to the village were questioned as to the applicant’s whereabouts.
On the respondent’s side, issue is taken that all those matters were accepted by the Tribunal and I think there is some merit in that. I think I have already referred at least once to the adverse credibility findings on several important and critical issues. What the applicant contended was that in the face of these, what he described as “findings”, the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution was “so at odds with the facts, as found by the RRT, that an error of law has occurred.”
In my opinion, a careful reading of the Tribunal's reasons discloses that it well understood the approach to be taken in assessing whether, on an objective basis, the applicant’s claims to a fear of persecution were well-founded. It did not accept all the applicant’s evidence and in particular did not believe, for example, his evidence that he was in hiding for two years between June 1991 and 1993.
Whether the Tribunal Erred, as Reflected by its Use of Standard Paragraphs?
This morning the applicant was given leave to amend his application. About two days before the hearing the applicant had given notice of his intention to rely on an additional ground. As that ground was developed and particularised this morning, it reads:
“The Tribunal failed to act judicially in the determination of the application, but rather relied on preconceptions about claims for protection visas made by Indian Sikhs. The Tribunal applied a standard approach to such claims and dismissed the application in accordance with that approach.”
By way of particulars, moulded principally by myself, but eventually with the consent of counsel - and I shall not read them all - this complaint was particularised by the applicant referring to some eight reasonably contemporaneous decisions of Member Endry who constituted the Tribunal in this matter:
First, the use of standard paragraphs, including paragraphs about the level and cause of the subjective fear held by the applicants in each of the cases was said to be demonstrative of a standard form approach that conduces to a particular outcome. This was said to be in error because it was antithetical to the requirement to act judicially. It precluded a fair and open assessment of the case sought to be made. It was a matter of fitting the applicant’s case into an existing construct, rather than a proper determination of whether the fear held by the applicant was well founded. It leads, so it was particularised, to a reasonable apprehension of bias, in that the Tribunal must be seen to have prejudged the case and not be open to persuasion in favour of the applicant.
Alternatively, an argument was advanced that there was actual bias in that the matter was prejudged. Finally, and in the alternative, it was asserted that the Tribunal’s decision constituted an improper exercise of power within the meaning of section 476(1)(d) in that, within the meaning of section 476(3)(c), it constituted an exercise of a discretionary power in accordance with a policy without regard to the merits of the particular case.
I turn first to the facts. It is true that, by looking at the eight examples tendered by the applicant, it can be seen that a considerable amount of the Tribunal’s reasons in each matter is expressed in terms of standardised paragraphs. And in each of those cases - all but one of which, as I understand it, involved Sikhs - the applicant was unsuccessful. On the other hand, the respondent tendered six further decisions made by the same Tribunal - again within a reasonably contemporaneous period - some of whom involved Sikhs from the Punjab. Those decisions also included Hindus, but in the case of the Hindus also involved Hindus who were militants or alleged to be militants in the Punjab. In those matters the applicants had been successful.
The applicant’s attack on the use of standardised paragraphs in this matter was, broadly, twofold. First of all it was said that it was wrong in principle to use standardised paragraphs because such an incantation was an impediment to a rational consideration of the evidence. It was said to be wrong in principle because the process was something which induced the outcome and it shifted the burden of proof. In essence, the submission boils down, as I see it, to this: that the use of standardised paragraphs precluded substantial justice being done, that the RRT must act with judicial fairness and detachment and that by using standardised paragraphs, in particular - and I will come back to this in a minute - paragraphs relating to the subjective fear of persecution, the Tribunal was not carrying out its function according to law.
On the question of the general principle I think it is sufficient for me to incorporate by reference here the following references - there may well be others - but first I refer to Minister for Immigration v Wu Shan Liang (1996) 185 CLR 259 at 266:
“A statement of reasons for a decision reviewable under the AD(JR) Act is not invalid merely because it employs a verbal formula that is routinely used by persons making similar decisions. If the formula is used to guide the steps in making the decision and reveals no legal error, the use of the formula will not invalidate the decision.”
Secondly, I refer to the judgment of Wilcox J in Lek v Minister for Immigration (1993) 43 FCR 100 at 122:
“I agree with counsel that the use by decision-makers of reasons devised by others is a matter that should excite concern about the possibility that individual decisions were taken in accordance with an overriding rule or policy or at the direction or behest of others. But, if an inference is to be drawn from standard provisions, it is not enough to point to mere use. It is necessary to consider the content of the adopted provisions. The standard provisions widely used in this case were either statements of law or summaries of the substance of documentary material concerning conditions in Cambodia. The full documentary material was before each delegate. He or she had to decide whether or not to accept it. It seems to me that delegates who chose to accept that material could adopt already formulated summaries of its relevant content, without exposing themselves to the reproach of having surrendered their independence of judgment.”
However, as those passages and the decision in Lek in particular indicate, there is no general principle which precludes a decision-maker, and in particular in my view a Tribunal such the Refugee Review Tribunal, from making use of standardised sentences or as counsel for the applicant put it, a “template”. It is I think common ground that there are dozens, if not hundreds, of refugee cases involving persons coming from similar parts of the world, in this case from the Punjab in India. All refugee cases involve the same legislation, the Migration Act, incorporating the Convention.
It would be imposing, in my view, a ridiculous burden on an administrative tribunal, when considering the political situation in a particular country, to have to vary its clauses in each case, unless of course more information had come to hand or sufficient time had expired which required that to be done. I think it was demonstrated in this case, as I say, that there was a very substantial degree of standardisation of the paragraphs. But even having said that, it emerged as counsel on each side took me to the decisions which were said to demonstrate a standardised approach, that there were subtle differences even in the common areas to which I have just referred, such as the political situation in the country and the legislation and the common background. But that brings me to what I regarded as the more important part of the applicant’s submissions. That was that the standardisation extended beyond factors which would be common to any applicant at the particular time applying for refugee status and coming from the same area of India -in this case, the Punjab. To start with, the complaint was that the standardisation intruded into matters particular to this applicant. It started at page 9 of the Tribunal’s reasons, where the Tribunal said quite briefly, this:
“I accept that the applicant, being outside his country of origin, has a subjective fear of persecution.”
This whole paragraph was standardised, but those first two lines of course are peculiar to the applicant. If that stood on its own I think there might have been a great deal to be said for the applicant’s submission that, having made that finding and then turning to the objective test of a well-founded fear and finding that there was no well-founded fear, given that were the two incidents that I have mentioned in 1989 and in particular the incident in 1991 - the far more serious incident - that there was an inconsistency of the type referred to by Davies J in Eshetu v Minister for Immigration and Ethnic Affairs (1997) 145 ALR 621.
As many of the cases say, the reasons of the decision-maker, and in this case the Tribunal, are to be viewed as a whole. The Tribunal did not stop at that. It proceeded to assess, as I say, at considerable length, and as it had done in many of the other decisions to which I was referred, and to consider the general situation. Then from pages 25 onwards of its reasons it turned to the situation of the applicant. It is true even there, just after that part, that there are some paragraphs which have a degree of standardisation, but they were not completely standard. There were differences and they were differences which gave rise to a sufficient particularity - even on for example page 25. But on page 26 the inconsistency to which Mr Niall referred in his address in chief and again briefly in reply - despite what he put to me in reply - I think disappears. This is because what the Tribunal can be seen to be doing at page 26 is looking at the applicant's circumstances in particular, revisiting the question of the subjective fear and saying words such as, “I accept as credible and consistent from objective sources, the two incidents,” and accepting, as it says, the more serious incident in 1993 - accepting that the applicant was genuine in his belief that he was being pursued and if he returned to India would be arrested.
It was not in my view inconsistent for the Tribunal to accept the genuineness of the subjective fear on the basis that, as the Tribunal put at page 25, that “the subjective fear appears to be genuine”, and at the same time find objectively, for the reasons which I have earlier given and which, more importantly, the Tribunal gave for rejecting that subjectively held fear as not being objectively sustainable. That comes to a head in pages 25 and 26. So I do not see the inconsistency. Had there been any inconsistency, then this would have been an Eshetu case, but I do not think it was - for those reasons.
The other matter arising out of the use of standardised sentences was that there was either actual bias or a reasonable apprehension of bias. In terms of actual bias, the only evidence pointed to was the use - in itself - of the standardised paragraphs. As the authorities such as Bilgin v Minister for Immigration and Ethnic Affairs (1997) 149 ALR 281 and Sun indicate, this is a very grave matter. Does the use of these standardised paragraphs show that the Tribunal approached the matter with a closed or impartial mind? In that regard I think something can be gleaned from the two sets of contemporaneous Tribunal reasons that were put forward by the applicant and respondent respectively. I think that exercise for a start, demonstrates that the use of the standardised paragraphs did not show that the Tribunal had an approach of a closed mind, or a mind that had been made up. Sometimes it found for the applicant, sometimes it found for the respondent.
The text of the reasons as a whole also excludes, in my view, an inference of actual bias. This is not the type of case as was found in Sun. This is a different case. The Tribunal can be seen to have been debating the various issues and have come to a conclusion. So I dismiss the charge of actual bias. Then there is the question of perceived bias, the principles of which are explained in Bilgin and which are well-known. I adopt by incorporating the statement of the principles relating to perceived bias in Bilgin at pp 290-292. In my view, a reasonable person reading the Tribunal’s reasons would not come to the conclusion that the it was guilty of having a perceived bias.
Then, finally, there is the question of the proper exercise of power as narrowly confined within section 476(3)(c). First of all, counsel for the respondent says that no policy was pointed to by the applicant. The applicant in reply says in effect, “Well, it doesn’t have to be a policy dictated externally. It can be a policy developed and applied consistently by the Tribunal or decision-maker without having regard to the merits of the case.” I do not see a policy disclosed by either the reasons in this matter itself when taken on its own, or when compared with the two sets of contemporaneous reasons to which I have referred. In some cases, for example in this case, the country information is further developed. Furthermore s 476(3)(c) requires the policy to be a policy - a discretionary power exercised in accordance with the policy without regard to the merits of the particular case. My reading of the Tribunal’s decision as a whole indicates that it very much had regard to the merits of the case.
So for all of those reasons I have come to the conclusion that the Tribunal did not deny the applicant substantial justice, did not in that manner contravene s 420 and did not directly contravene s 476 of the Act in reaching its conclusion. For those reasons the application will be dismissed. There will be orders made in the following terms:
Application be dismissed.
Applicant pay the respondent’s costs of the application.
I certify that this and the preceding
seventeen (17) pages are a true copy
of the Reasons for Judgment of Justice Carr
Associate:
Date: March 1998
Counsel for the applicant: Mr R M Niall
Solicitors for the applicant: Erskine Rodan & Associates
Counsel for the respondent: Mr W Morley
Solicitors for the respondent: Australian Government Solicitor
Date of Hearing: 5 March 1998
Date of Judgment: 5 March 1998
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