Singh, Ex parte- Re Ruddock
[1998] HCATrans 205
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M88 of 1997
In the matter of -
An application for writs of prohibition, certiorari and mandamus against
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS, THE HONOURABLE PHILIP
RUDDOCK
First Respondent
A.A. ENDRY sitting as the REFUGEE
REVIEW TRIBUNAL pursuant to
the provisions of the MIGRATION
ACT 1958
Second Respondent
Ex parte -
MALKEET SINGH
Prosecutor/Applicant
HAYNE J (in Chambers)
TRANSCRIPT OF PROCEEDINGS
AT MELBOURNE ON TUESDAY, 2 JUNE 1998, AT 9.35 AM
Copyright in the High Court of Australia
______________________
HIS HONOUR: Yes, Mr Rose.
MR P.N. ROSE: If your Honour pleases, I appear with my friend MR G.J. MOLONEY for the Prosecutor in this application. (instructed by H.S. Wise Gershov and Co)
MR R.R.S. TRACEY QC: If your Honour pleases, I appear for the Respondents. (instructed by the Australian Government Solicitor)
HIS HONOUR: Yes. Gentlemen, how long do you think this matter will take? That is, can I say anything useful to Mr Hurley who is waiting in the second matter?
MR ROSE: I think we would want an hour, your Honour.
HIS HONOUR: Yes.
MR ROSE: We have reduced it to writing so - a fair bit of it - so we will endeavour to be quick.
HIS HONOUR: What do you think, Mr Tracey, an hour would be about safe?
MR TRACEY: Yes, I concur with that estimate.
HIS HONOUR: Yes. Mr Hurley, we will not take your matter before 10.30. Yes, Mr Rose.
MR ROSE: Your Honour, can I hand to you and my learned friend a copy of the Prosecutor's outline of argument.
HIS HONOUR: You should assume, Mr Rose, that I have got a general familiarity with the matter and have read them - I think all of them once. You should of course take me to matters that are of particular significance.
MR ROSE: Yes. Your Honour, our application is one for prerogative relief including - or alternatively, injunctive relief, your Honour. You will see that the proceedings or this application for an order nisi was lodged some seven months after the RRT decision was made and insofar as we need extensions of time, they are sought. It may well be that Order 55 rule 17 and rule 30 allow for an extension of time, and if not, order 60 does.
Your Honour, perhaps I should start with the point that, in effect, if you do allow the order nisi, this is one of those cases that cannot, unfortunately, be remitted to the Federal Court. Your Honour, there is - and I think my friend Mr Tracey will agree with this - a decision in a case called ex parte Abebe, the relevant part - and we have a copy for your Honour - is Gummow J.
HIS HONOUR: In 72 ALR at 630. In any event, what passage of Abebe (No 2) do you rely on?
MR ROSE: It is the one of 28 January 1998, your Honour. We have a - so that we are working from the same - can we give you a copy we have. Pages 9,10, 11 and 12 of that decision, his Honour deals with the problem that will be faced with. He sets out the history of the Abebe matter and on page 9 of 13 he notes the applications made, how it is made. I do not have to take your Honour through all of that - and the person went and made their application for a protection visa.
That was a case where they actually then went to the Federal Court and the Federal Court, Davies J, knocked them back in relation to their claim. It was a case where his Honour recognised that the claim came to the High Court under Section 75 of the Constitution and he drew attention to the fact that Section 475(2) of the Migration Act excludes certain grounds of review in the Federal Court. On page 10 at the top, he is again setting out the history and the problem and he then goes through and discusses on the next page the effect of 476(2) and (3). I think he deals with the crux of the matter, your Honour, on page 12, where he makes these comments, starting about the fourth line down:
The history to date of this litigation which I have outlined indicates the procedural difficulties for all concerned that arise from the legislative fragmentation of what is the truth, the one controversy between the parties.
He then notes what Section 485(3) of the Act states:
If a matter relating to a judicially reviewable decision is remitted to the Federal Court under Section 44 of the Judiciary Act, the Federal Court does not have any powers in relation to that matter, other than the powers it would have had if the matter had been as a result of an application made under this part. In the present case, that provision operates to exclude the exercise of the remitted power for which the parliament otherwise has made provision in Section 44. The power of remitter is of considerable importance in facilitating the exercise of this court of its primary and unique functions. These are first, in the original jurisdiction, the disposition of certain matters arising under or involving the interpretation of the Constitution and secondly, its function, subject to the grant of special leave as a final court of general appeal for the whole nation. The result achieved by the Act as it now stands is to encourage the twin evils of cost and delay and it would appear to impede the efficient administration of the migration laws.
What we say, your Honour, is it gives us no real joy to have to come to the High Court to seek this relief but we cannot avoid that unfortunate situation, where part of our case is that a number of the remedies that we would seek are excluded pursuant to section 476(2) of the Migration Act, that being the section which excludes natural justice and reasonableness from review.
HIS HONOUR: Why should I embark on considering those issues whilst Abebe is pending? Abebe was directed to be returned by notice of motion to a Full Court and it will, I assume, be some months before Abebe comes on. Why do you say I should now embark on considering grant or refusal of order nisi until the relationship between the exclusionary provisions of the Migration Act and the 75(5) jurisdiction is, if not worked out, at least illuminated by the decision in Abebe?
MR ROSE: Your Honour, provided our client was protected by either an undertaking or some agreement that there be no move to remove him from Australia until Abebe or the final determination of his case and provided he was left in the same position he is now, he currently has a visa which runs out on the 22nd of this month, a bridging E-class visa.
HIS HONOUR: It is 22 June?
MR ROSE: June 98. That permits him to remain in Australia until that date. We do not know what will happen after that. Provided he was protected, we would have no real difficulty of it going off until Abebe was decided, although of course we have different factual considerations from Abebe and ours will be determined on its own facts, if we are correct, as we say we are, that this court has jurisdiction to determine the various matters that we have raised. But in principle ‑ ‑ ‑
HIS HONOUR: Assume then that I were not to go down that path and assume for the moment that I were to seek to embark on consideration now of whether order nisi should go or not, could you perhaps state without for the moment pausing to elaborate on them, the principal bases on which you say order nisi should now go?
MR ROSE: Yes, your Honour. We set them out at page 3 of our outline at paragraph 6.
HIS HONOUR: Yes.
MR ROSE: We stated eight main grounds. Your Honour, perhaps you can read that and if I can indicate what we say. This was a case where your Honour will see there were a number of documents that were put in in support of this applicant. There were documents firstly said to emanate from India, from various support-type parties of the pro-Sikh movement. There were documents said to relate to a warrant for his arrest and there were documents said to be of a medical nature, all emanating from India.
HIS HONOUR: Now, as to those, the decision-maker expressed his view, for example, as to the statement emanating from police authorities that this man was wanted for banditry and terrorist-type offences. Well, if that were so, how did he come out regularly under his own name through the emigration system of India?
MR ROSE: Yes.
HIS HONOUR: As to other supporting documents like the lawyer's reference or letter, if I can describe it neutrally in those terms, the tribunal said, in effect, "Look, I don't believe it is genuine," and as to the medical condition of the applicant, am I right in understanding the decision-maker to say, in effect, "Yes, this man has at some time suffered the very serious range of injuries of the kind that he says he did, but things in the Punjab have now changed," so that his fears which he may hold are of a kind that it is unlikely that, or is there is not a real chance that - use the real chance test - that he will be persecuted for his relevant beliefs.
MR ROSE: I do not know that the last point you have made, your Honour, can be said that the decision-maker said that.
HIS HONOUR: Right. Leave that aside; for the first two points, have I captured the essence of what the decision-maker says?
MR ROSE: Yes, your Honour.
HIS HONOUR: Are those not simply decisions of fact founded in part on assessing the applicant's demeanour, looking at the documents and all those advantages which decision-makers have and which those who read the cold, hard papers do not have?
MR ROSE: They are in part, your Honour, and we accept that. The issue we take though is this, that where there is so much material, it is not just those documents but it is the documents emanating from America, it is the documents emanating from Australia, it is the medical evidence emanating from Australia, that all of this cries out for some verification, so it was one of those cases where the Full Court of the Federal Court in Singh and we say the High Court in Teoh would recognise that there may be a need for further inquiry. There are a number of lines where we say that inquiry could have been made, your Honour. Firstly, it is not beyond commonsense that the whole issue of this man's credibility is what led to the rejection of his real chance test, in effect.
HIS HONOUR: Is that right? If you go to page 37 of MS5 which is the reasons ‑ ‑ ‑
MR ROSE: I have it, your Honour.
HIS HONOUR: Dr Endrey says under Conclusions, "Unable to find," etcetera, but he then seems to talk of elimination of militant activity, return to normalcy in the Punjab, etcetera, as being facts which contribute to his conclusion and which are, if you like, facts independent of what the applicant has suffered or what the applicant believes will happen to him. It is, if you like, an assessment of the political situation in the Punjab.
MR ROSE: There are two difficulties with that, (1) it is not borne out by his earlier assessments when he goes through the various cables in relation to it - in fact, I think one of them says in the next two months, they are going to establish a system to oversee, but other cables say there are still ongoing problems. Secondly, he jumps about and accepts - and again if we are just dealing with page 37, where your Honour is - and he says:
It is evident the applicant sustained a number of injuries at the hands of the security forces.
Going on to page 38:
These appear to have taken place some years prior to his eventual departure from India and may have been as a result of the earlier instances of detention in 1982.
He then says:
The available evidence does not support the conclusion they were of more recent times.
He has jumped about, your Honour, and we have had some difficulty working out exactly what it is, but that is inconsistent with the evidence that he purports to accept. Just one quick example of that, your Honour, is if you go to the Australian doctor's medical report, which is in 7 ‑ ‑ ‑
HIS HONOUR: Exhibit 7?
MR ROSE: MS7, yes, your Honour, it's D of MS7.
HIS HONOUR: This is the ‑ ‑ ‑
MR ROSE: Dr Arora, dated 14 January 95.
HIS HONOUR: Yes.
MR ROSE: You will see there that Dr Arora writes to the adviser at that time saying:
He attended my clinic for a medical examination. He gave a history of being tortured by police in India during the last few years.
Then going down to the bottom, he says:
After going through the physical examination history he gave me, I am of the opinion that the physical injuries that have been sustained are consistent with the alleged torture described.
That is torture in the last few years, it is not torture in 1982, your Honour, which is what the decision-maker at page 38 has appeared to have said.
HIS HONOUR: Again, I am interrupting too much and I will be quiet at once, Mr Rose, but these matters seem, at first blush, to be an attempt to revisit the facts and to appeal against a series of factual findings that were made. I suspect that argument, if it was not already going to be made, may now be made against you. What answer do you make to that kind of criticism?
MR ROSE: Where the way in which the decision-maker has gone about the factual process is either so unreasonable or amounts to a denial of procedural fairness or natural justice, whichever term has currency, or in fact to a failure to give substantial justice, we can revisit those matters, your Honour, provided we can show that it falls into one of those categories.
HIS HONOUR: So it is Wednesbury unreasonable, is it?
MR ROSE: Yes.
HIS HONOUR: Procedural unfairness?
MR ROSE: Which is the Kioa‑type unfairness and it is the failure to accord substantial justice which is the Wu - 422, I think it is, of the Migration Act, your Honour. Indeed, it is also the type of consideration that Finkelstein J raised in a matter of Epeabakav the Minister 150 ALR 397. I will hand up a copy for your Honour.
HIS HONOUR: Thank you.
MR ROSE: The relevant part is at page 401, where his Honour goes through and discusses the decision of Mahon v Air New Zealand and Ors and the type of matters that the Privy Council had discussed there and at line 12 says:
Once it is accepted, as I think it should be, that the tribunal is required to base its findings on probative evidence, it must follow that the tribunal is also under an obligation to rationally consider that evidence. There would be little point to the imposition of an obligation upon a tribunal to decide a case on probative evidence if there was not an additional obligation to rationally consider that evidence. Each obligation is designed to ensure, so far as may be possible, that the tribunal does not indeed arrive at a decision which is a correct or preferable decision. Conversely, if each obligation is not imposed, there will be a tendency for administrative decision-making to be arbitrary.
We essentially say that is what the decision-maker failed to do, your Honour, on a fair reading of his reasons.
HIS HONOUR: Again, can I play it back to you just to make sure that I understand the point? As I understand your point, it is that there are what, such inconsistencies in the threads that you find in the reasons and such a treatment of the material that was before the decision-maker that if the Pochi test is to be applied, it could be concluded that the evidence had not been rationally considered?
MR ROSE: Yes, your Honour.
HIS HONOUR: Does that capture the heart of this aspect of your argument?
MR ROSE: Of this aspect, yes, your Honour.
HIS HONOUR: I am not saying it is the only one, but of this aspect?
MR ROSE: Yes, your Honour. If I can take what we consider perhaps the strongest points first, your Honour, and to move slightly away from the outline, once you have got to the matters that I set out in exhibit 7 to the affidavit - they are the letters from Dr Arora, the letters from India and so on - it was an easy matter to verify one or other or all of those documents. What the decision‑maker did was move off and say, "Look, the English in this is bad, therefore I do not accept it was written by this person. This is not on letterhead, therefore I don't believe it came from this hospital," and so on. But that is inconsistent with his findings that this man had scarring and had at some stage been severely beaten. What was crying out, your Honour, having found that there was a subjective fear, the first part of the Chan test, was to look at the question as at 1994, at the time the person has left - which I think you will find the courts have said is perhaps the starting point, among other things, as to when you start looking - "Look at what has happened at the time you are making your decision." That was particularly pertinent to the question of whether or not this man had suffered a beating in December 1993 or into 1994.
If I am correct in my interpretation on what we say is the plain reading of Dr Arora's report, this man had his beating in recent times, not in 1992, as is found at page 37 and 38 and it is consistent with his claims. Once you get to the stage where there are matters consistent with the claims, the requirement then, your Honour, is to do what Kirby J did in Wu - and I have it, your Honour. I will just hand you a copy. Just bear with me, your Honour, I have it here - at 293, your Honour, about halfway down where Kirby J says this:
Secondly, the decision-maker must not, by a process of factual findings on particular elements of the material which is provided, foreclose reasonable speculation upon the chances of persecution emerging from a consideration of the whole of the material. Evaluation of chance as required by Chan cannot be reduced to a scientific position. That is why it is necessary, notwithstanding particular findings, for the decision-maker in the end to return to the question, "What if I am wrong?" Otherwise, by eliminating facts on the way to the final conclusion, based upon what seems likely or entitled to greater weight, the decision-maker may be left with nothing upon which to conduct the speculation necessary to the evaluation of the facts taken as a whole, insofar as they are said to give rise to a real chance of persecution.
We say two things about that, your Honour. Firstly, the decision-maker never engaged in that exercise of speculation about the future and secondly, the way he dealt with the factual basis of the torture or the beatings that the applicant had had left him shutting out matters of credibility which could have assisted the applicant. Once you had that problem of saying, "Look, these injuries are consistent with a beating in 82," when that was against the medical evidence, he has used that to say, "Look, I just do not accept that this man had beatings in 94 or 93." If he had beatings in 93 and 94, the whole consideration of a well‑founded fear in the objective sense and a real chance test would have changed. Does your Honour understand how I am putting that argument?
HIS HONOUR: I think so, Mr Rose. It is an argument, is it, which focuses principally on the torture aspect. It argues from the accepted objective fact that the man has injuries of a kind consistent with treatment of the kind that he describes? You begin from that premise?
MR ROSE: Yes, your Honour.
HIS HONOUR: As I understand it, you would then argue from that to the proposition that the decision‑maker did not accept the applicant's version of events that the torture had occurred in recent years but attributed it to the period of 82 or thereabouts and was wrong in doing so?
MR ROSE: And there was no basis for him to do so - wrong in that there was no evidence and that the material - in fact there was evidence against it. I am sorry, I put that badly, your Honour: (1), there was no evidence to support 82; and (2), the evidence pointed the other way, that it was in the nineties. Further, there is advice to that, your Honour, and that is the Fuduche-type argument. Fuduche v the Minister was the decision of Birch J, your Honour - we will hand you a copy of that - which said that where medical science offered an answer, it is not rational for a layperson to brush that aside in favour of some theory of his own.
HIS HONOUR: But there is no doubt, is there, that the decision‑maker accepted that this man had suffered treatment of the kind that he described?
MR ROSE: Yes.
HIS HONOUR: The debate was, "When had he suffered it?"
MR ROSE: When.
HIS HONOUR: Was there objective scientific evidence that would date the injuries? I thought not.
MR ROSE: Not in terms of saying, "This happened on this day," but ‑ ‑ ‑
HIS HONOUR: Or "in this period"?
MR ROSE: Yes, it is. That's Dr Arora, your Honour. If he was not prepared to accept Dr Arora ‑ ‑ ‑
HIS HONOUR: But Arora says only this man presented with a history of recent years or - it was some qualitative rather than quantitative ‑ ‑ ‑
MR ROSE: He used the words "last few years".
HIS HONOUR: "Last few".
MR ROSE: This is in 95.
HIS HONOUR: Yes.
MR ROSE: "Last few", your Honour, and then he says it is consistent with the torture described.
HIS HONOUR: It must be a product of advancing age, Mr Rose, but the expression "last few years" tends to extend as you get on.
MR ROSE: I understand that and it seems to be quick - Your Honour, 82 as against the nineties.
HIS HONOUR: Yes.
MR ROSE: Now, what we say is then again, this raises the same issue of the duty to inquire. Either he says, "Look, 'last few years' is the nineties," which would be the plain meaning or, "I do not know what Dr Arora means." Then he has to do a number of things: (1), he has to say to the applicant, "Look, I have difficulty with that. I have difficulty with your credibility about suffering a beating in the nineties. What do you say about that?" and gives him the opportunity - in Kioa - to make a comment on it, the type of Kioa opportunity; or alternatively, he has a duty to inquire, as Singh would have and Teoh, and that was only a matter of, "Can we ring Dr Arora and he can tell us what he means by 'last few years'?" because this was crucial and fundamental to whether or not this applicant's credibility was going to be accepted. If you had evidence that accepted that it was in the nineties, then the whole basis of the way in which the decision‑maker was treating the question of real chance and treating the question of objectively well-founded fear changed.
HIS HONOUR: But how would the doctor who examined him have been able to assist? All he could have said was, "This man presented giving me this history."
MR ROSE: No, he may well have gone further and said that, "The scars are consistent with; they haven't faded so much. It is beyond my expertise." He may have done a number of things. We do not really know what he had done. What he has done so far is said that it is consistent with the history described which is the history of "in the last few years", which was likely to be 93, which is what the applicant - or the period the applicant gave evidence, that December 93 was when he was tortured.
That, we say, your Honour, points to the real need for them to go and make inquiries. Those inquiries could also have been made of the doctor in India. There are quite a number of documents here which, in the end, the decision‑maker rejects out of hand so as to fit his theory that the torture came some period before. If one was going to deal with the applicant on his issue of credibility without telling him, surely you have got to say to him, "Look, these documents have got all these problems. Either you go or I will go and get more information from these people." It is not beyond the realms of the Embassy's expertise to go around and visit, by their representatives, the various people or to make the phone calls in India. Even if one was concerned about doing this in India, because it might give the man a profile he did not otherwise have, you had people in Washington, you had people in Australia who were putting in letters of support, saying that this man had been subject to beatings and torture and mistreatment in the nineties.
HIS HONOUR: What do you say as to the reasons of the decision‑maker in exhibit 5 at page 35 in the second paragraph commencing on that page, "Nevertheless, I cannot accept"?
MR ROSE: We say that there is no rational basis for the decision‑maker coming to that conclusion, having accepted in the paragraph before that the applicant had been at some time the victim of significant physical abuse by the Indian security forces and that a violation of his human rights - it is in the paragraph before - cannot be condoned and must be condemned as persecutory behaviour, that it is inconsistent for him then to say, "Well, he has not had severe" - if that is what he is saying ‑ ‑ ‑
HIS HONOUR: I read it as talking about time of occurrence rather than severity, but perhaps I am wrong in that.
MR ROSE: It seems to be both, your Honour. In terms of time of occurrence, he does not seem to have had regard to Dr Arora. When he deals with Dr Arora on page 34 of those reasons for decisions in the second paragraph, he just says:
Dr Arora, in his description of the injuries, is broadly supportive of the observations recorded in the document discussed above -
which is the Indian document which has problems with its date, but again deals with injuries in the 93-94 period, but he just never faces up to that and in fact makes the quantum leap of going back and saying, "This all happened in 82, if it happened." If Kirby J is right, there has to come a time, your Honour, when the decision‑maker sat back and said, "What if this man has been beaten in 93 or 94? What is the position then?" and had to look at whether that was objectively well founded.
The next ground, your Honour, is a failure to advise - and I think we have probably dealt with this - and a failure to raise with the applicant to any extent the fact that he did not accept as credible these documents - he certainly raised some difficulties - but that he was going to, in effect, damn the applicant's credibility because of those documents. That is an odd situation, your Honour, because at some stage - and I will find the reference for you in a moment - the question of credibility was raised when they were having the interview in the transcript and the decision‑maker in the last few pages of the transcript - they are not numbered, your Honour - but it is ‑ ‑ ‑
HIS HONOUR: Sorry, which exhibit?
MR ROSE: This is 7. It's the first part of 7, the transcript, your Honour - 5, I think, is the transcript, or 6?
HIS HONOUR: 6. Three from the end?
MR ROSE: Four from the end, I think, your Honour.
HIS HONOUR: Yes, I have it.
MR ROSE: Starting at the bottom, the parting shots almost, Mr A:
Thank you, Mr Grosman, for those comments, which of course I will take each of those points into account.
Does your Honour have that?
HIS HONOUR: Yes, I have.
MR ROSE: Yes.
Without addressing point for point necessarily the issues you have raised that I might just say generally to allay any concerns that you might have, Mr Singh, regarding issues of credibility, you might recall from the outset when we first met, the tribunal was concerned primarily in establishing the facts of your case; in other words, your story there, your documents, and the tribunal as it is open to it, has to decide each individual fact of what it understands reality to be.
That gets interpreted. Mr A:
Because the tribunal is a fact-finding jurisdiction in the first instance, it is open to it to make a finding on fact that that should not be seem -
and that would probably be "seen" -
to be an attack on your credibility. The tribunal is not seeking to undermine or impugn your credibility in any way. It would certainly be inappropriate, in the tribunal's view, to conduct its hearings in such a manner.
It then goes on:
But when the tribunal has doubts about the authenticity of documents or about certain facts, it has to examine those and seek your explanations which might then address those concerns which might provide a reasonable explanation for the various doubts that may arise and so I simply make these points so that you are aware that it is the tribunal's right to examine each of the facts on their merits and make a finding. But I do not want you to have the expectation or leave the hearing today that I have made a decision one way or the other on these individual matters or overall, because I have not.
That would seem to suggest to your Honour that credibility at that stage was not an issue for the applicant, if one reads that as best one can. The first part of that that I took your Honour to seems to suggest that credibility is not the important issue that it perhaps might otherwise seem to be. Nevertheless, this whole case really turned on the issue of the applicant's credibility. We would say that (1) he has led him to a false expectation that credibility is not an issue; secondly, if it was, Kioa would have required - and the cases following - that he give him some intimation of that. Thirdly, because this is a case dealing with an issue of reformance of a person who is possibly a refugee, that a need for an inquiry existed. That is how we put that argument, your Honour.
HIS HONOUR: Yes.
MR ROSE: Going on, your Honour, there are some other matters that we put and we put them perhaps more briefly and not with as much force. There is the argument on section 150 of the Evidence Act that the seal on the arrest warrant was something that one would have to accept and he should not have rejected the arrest warrant.
HIS HONOUR: Which arrest warrant are we speaking of?
MR ROSE: It is perhaps the document from India which is the one with his photo. It is MS7A.
HIS HONOUR: He is wanted for ‑ ‑ ‑
MR ROSE: Wanted for atrocities and other banditry.
HIS HONOUR: Yes.
MR ROSE: Now, whether that is an arrest warrant is debatable, your Honour. There is a decision that I should indicate to you of Finkelstein J in Epeabaka where his Honour indicates, in dealing with section 150, that that would not apply to this type of document and in this situation to the tribunal. He does not believe that the tribunal, not being a court of law, is caught by the Evidence Act, but we have raised that as still an open issue. It is dicta in his Honour's case and it has not been dealt with by this court.
The next point, your Honour, was a relocation point, the Randhawa‑type point. We would argue again that that is unreasonable in the circumstances. You will see the almost throwaway line towards the end of the decision on page 37, on the second-last paragraph, that:
Should the applicant not wish to return to the Punjab to live in light of the turbulence of the past and to relocate to other parts of India where there are concentrations of Sikhs, this is not an unreasonable option.
We just say there is no evidence. The only evidence that dealt with that - and we refer to it in our outline, your Honour - is evidence that the applicant says he cannot relocate because of the problems with the police and the fact that if they were looking for him, they would look for him in other parts of India, so we say that has not been dealt with correctly.
There was a final issue - I have dealt with the medical issues, your Honour - and that was the question that was never properly considered or never considered at all as to whether or not the applicant might have become a refugee sur place. You will recall that there was some evidence, your Honour, relating to the death of the sister. The sister was killed in 1995 and after the application and after the applicant had come to Australia, there was a letter. There were two aspects of the sur place: firstly, the sister's death and the impact that that may have had on the claims by the applicant, that there was a chance of him being prosecuted on return was never considered; secondly, in the letter from the Babar Khalsa International Australia, which is MS7E, there was reference to him doing work outside of India.
All of that should have raised a consideration of whether or not the applicant had become a refugee sur place because of either getting an imputed authority due to his sister's death or alternatively because his action was outside India and none of that was considered. Again, whilst we put those points, your Honour, we do not put them as strongly perhaps as our first points, dealing with the duty to inquire, the duty to raise the issue of credibility and the fact that he has not properly dealt with the date and the medical evidence. In broad form, your Honour, I think you asked me to just outline how we put it and that is how we put it.
HIS HONOUR: Yes, thank you, Mr Rose. Mr Tracey, firstly, what do you say I should do, given the pendency of Abebe?
MR TRACEY: Your Honour, I think we would prefer that the court deal with this matter. Abebe, so far as we are aware, has not been given a hearing date. One may expect it will be in the latter part of this year. There will then be a reserve judgment, your Honour. It is a long way off and there is no guarantee that that reserve judgment will pass definitively on section 485 or Part 8. It could be dealt with without that.
HIS HONOUR: But given that it is pending, what am I to do about this application?
MR TRACEY: Yes, your Honour, if you were otherwise disposed to accede to it, then we would contemplate an order similar to that made by his Honour Gummow J in Abebe that the matter proceed on notice of motion before a Full Court.
HIS HONOUR: But surely it would be premature to do that until we saw what happened with Abebe. The Full Court is not going to want to take each of these as they come up, if it is possible - and I simply do not know if it is possible - to resolve the issues in Abebe. That may then lead, may it, to some different course of events in this application?
MR TRACEY: Indeed, it might, your Honour, but that could occur, notwithstanding that it was pending. It could be revisited and if need be, sent somewhere else, if the High Court was to take the view that that was possible. It would not be a barrier to that course, your Honour; simply that your Honour had made an order in this case.
Your Honour, can I be somewhat candid as far as the Minister's concerns in this regard are? If your Honour were to defer this case pending Abebe, the Minister would apprehend that there will be many more such cases that will come before this court for the exclusive purpose of getting an undertaking not to deport or otherwise act to prejudice pending the outcome of Abebe, so that there will then be a long line of cases that might otherwise have gone to the Federal Court waiting here, subject to undertakings.
HIS HONOUR: Yes, I can understand why the Minister might be concerned about that; indeed I can. But we have this division of jurisdiction; we have, as I apprehend it, at least unresolved for the moment what follows from the fact of division and, yes, that may lead to a considerable bottleneck in the system. But what follows from that fact?
MR TRACEY: I suppose the answer is, your Honour, what follows is who is going to be the least incommoded by a particular course. The worst that is going to happen as far as ‑ ‑ ‑
HIS HONOUR: It might also be of some importance whether at the end of it, both parties to this sort of proceeding are dealt with fairly. In the end, we have got to deal with this in a way where those in the position of Mr Singh - and, yes, the Minister and that aspect of the system - are both dealt with properly and fairly.
MR TRACEY: Indeed, your Honour. Your Honour, we would seek to persuade you in this case - and I will come back to the point that your Honour has raised - the issue really does not arise because firstly, the case is brought well out of time for no good reason. Secondly, there is no merit in the application that would warrant your Honour directing that the matter be referred on notice to a Full Court. So if we can persuade your Honour about that, the ultimate problem does not arise.
HIS HONOUR: I understand that. The other course that would be open is simply to stand over the application pending disposition of the Full Court matter in Abebe.
MR TRACEY: Yes.
HIS HONOUR: Ordinarily speaking, there would be much to be said against simply putting it in the too-hard basket which that might appear to be doing. But the sort of issue that is niggling at me at the moment, Mr Tracey, is this: that if, for example, a consequence of Abebe were to be that the remitter power was perhaps broader than might appear from a reading of Part 8, there would be much to be said for remitting this at once to the Federal Court where they are in a better position perhaps to deal with the issues than this court is.
MR TRACEY: Your Honour, there is another variable in all this. You will be aware that there is a bill before the Federal Parliament which has passed the House of Representatives but is a full Senate committee, I think, which would go some distance to resolving this problem. In any event, it would far more closely close the door to access to this court in preference to the Federal Court as a port of first call. What becomes of that is in the hands of the politicians but it is not inconceivable that even whilst Abebe is pending, that legislation might pass the parliament.
HIS HONOUR: Would the bill on its face be intended to cut off existing matters?
MR TRACEY: No, I do not think it operates retrospectively, your Honour. I merely mentioned it in the context of the backlog problem.
HIS HONOUR: Yes, I understand that. But this matter would ‑ ‑ ‑
MR TRACEY: No, this matter would proceed ‑ ‑ ‑
HIS HONOUR: - - - fall in the same case as Abebe.
MR TRACEY: Yes. Your Honour, this is a case that on the present construction of Part 8 either comes here or it is not dealt with and that really puts it in a distinct category.
HIS HONOUR: I can understand the point you make that those who instruct you fear that if this is put off, there will be a stream of people through the door seeking, in effect, to achieve a result without debate. Understanding that contention, are there other considerations that you say I should bear in mind in deciding what to do immediately about this application?
MR TRACEY: Yes, your Honour. The other one is that it is by no means certain that when Abebe comes on before a Full Court that the Full Court will pass on the construction of Part 8. It does not need to strictly to deal with Abebe.
HIS HONOUR: Has anyone given a section 78B notice in connection with Abebe?
MR TRACEY: Not that we are aware of, your Honour, no.
HIS HONOUR: So at the moment it presents as a construction point, not as a power point?
MR TRACEY: Exactly, your Honour. So that it may be that having waited for whatever time it takes for Abebe to come on and the decision to be handed down, we may be in no different position from that which we are in today. Your Honour, the third factor that we would urge upon your Honour is simply the uncertainty of the time that it will take to resolve Abebe and in the meantime, the applicant in this case will be in a state of uncertainty about his rights, as will, no doubt, hundreds of others.
HIS HONOUR: So far as this applicant is concerned, I rather suspect from the tenor of the submissions that that is a risk he is prepared to run. As for the fate of others, they may turn on their own case. As I understand it, your contention is I should go on and hear it out?
MR TRACEY: Yes, that is the submission, your Honour.
HIS HONOUR: Is that submission dependent upon my concluding consistent with, as I understand it, the tenor of your submission that no order nisi should go? That is, are you ‑ ‑ ‑
MR TRACEY: No, your Honour. If you were against us on the two points that we will seek to agitate against the making of the order nisi, then we would be inviting your Honour to make the same sort of order that was made in Abebe.
HIS HONOUR: Refer it then to a Full Court?
MR TRACEY: Directing that it be done by a notice of motion, yes, your Honour.
HIS HONOUR: I think I would take a deal of persuasion to do that, pending the determination in Abebe.
MR TRACEY: If we got to that point and your Honour was still of that view, then our submission would be that the course your Honour was proposing in argument - namely, that the further hearing of this matter be adjourned pending the outcome of Abebe - would be, in the alternative, the appropriate order.
HIS HONOUR: Thus - again just to make sure I am understanding the position - your preferred position would be refuse order nisi because you say it is out of time and no merits?
MR TRACEY: Yes, your Honour.
HIS HONOUR: Your next position would be if order nisi be granted, it should be on the same terms as in Abebe. Your last position would be, if otherwise minded to give an order nisi, simply adjourn the matter over, without doing so, pending the decision in Abebe. Are those the three choices that we now confront?
MR TRACEY: Exactly, your Honour, yes.
HIS HONOUR: Out of time and no merits, if there were merits, why should the time bear in on me?
MR TRACEY: They are linked submissions, your Honour, and plainly your Honour would be more disposed in the presence of a meritorious application or at least a prima facie meritorious application to pass over deficiencies in time.
HIS HONOUR: Are we better then to address first the question of merits?
MR TRACEY: I am happy to do that, your Honour. Your Honour, the principal point that is put by our friends is that Dr Endrey has acted unreasonably in the way he has gone about the task that is reposed in him and when asked to identify a prime example of that deficiency of process, the issue of the medical condition of the applicant is raised. Your Honour, we confront that head-on. Dr Endrey has given a reasoned judgment. It runs for some 39 pages and it is tightly reasoned, as one would expect. Essentially what is being made by way of an attack on it is an attack on findings of fact made by the tribunal.
The example that is given - and one imagines this is the high point of the case because it was the one focused on - is the Arora letter, the letter from Dr Arora. What Dr Arora did, as your Honour has seen in that letter in January of 1995, starts by recording the history that had been given to him by the applicant. He gave a history of being tortured by police in India during the last few years and then there is a description of that torture. Then there is a description of what the doctor found on physical examination. One then goes to the last paragraph:
After going through physical examination and history he gave to me, I am of the opinion that physical injuries he has sustained are consistent with alleged torture described -
not a word about an acceptance of the temporal argument or the history. All that the doctor is saying is that the injuries that he saw on physical examination were consistent with the type of torture that he had been told about; not a word about acceptance of the time at which that occurred. It is said against Dr Endrey, "Well, he accepted Dr Arora," and therefore when he came to his conclusions at 37 to 38 and said that he accepted that there had been these various injuries and that they appeared to have taken place some years prior to his eventual departure from India and may have been the result of the earlier instances of detention in 1982, that was somehow inconsistent with his acceptance of Dr Arora.
What he said about Dr Arora appears at page 34 of the reasons in the second paragraph to which your Honour has been taken. All that Dr Endrey says about Dr Arora is that the examination report, in its description of past injuries suffered by the applicant, is broadly supportive of the observations recorded in the Indian doctor's report. Your Honour, there is not a word in any of that about when the injuries occurred. There is therefore absolutely nothing inconsistent between what Dr Endrey says about Dr Arora's report on page 34 and the conclusions to which he came in relation to the injuries at 37 to 38.
What is important about the conclusions is that it is accepted that at some time before he left India, he was severely beaten by somebody and presumably by the people who he said had beat him. But the case did not ultimately turn on that point at all. The case turned on the changed situation in the Punjab. So regardless of what had happened in the past and when it had happened, Dr Endrey was of the view, based on material which he outlined - and it is not impugned in this proceeding - that things had changed for the better in the Punjab. That was a view that was open to him on the evidence and there is absolutely nothing inconsistent with his reasoning in that regard.
It follows from that that any adverse findings about credit also did not go to the central issue on which this case turned. Any issues relating to credit had regard to arguments about when particular events occurred and they did not have anything to do with the question of what the current state of the political situation, the security situation in the Punjab was.
It is also said, "Well, Dr Endrey was required to stand back and say, 'What if I'm wrong'?" There is reference to what his Honour Kirby J said in Wu's case. But our friends overlooked the majority decision in Wu which says that there is no need to stand back and say, "What if I am wrong?" if the decision‑maker is otherwise certain of the fact findings that are being made.
HIS HONOUR: Where do the majority say that?
MR TRACEY: I am going to have to ask for my friend's copy, if your Honour will bear with me. I was not aware that this was going to be cited. Your Honour, I think it is about 280. Your Honour, I think that I am mistaken in saying that it was the majority in this case that said it. It was in Guo that the point was taken because your Honour will remember that in Guo, the majority in the Federal Court had held that there should be a staged process, including as one of the final stages of decision‑making, the "What if I'm wrong?" point and the majority in Guo said that if the decision‑maker is certain of the correctness of factual findings, then it would be irrational and illogical to stand back and ask the question. That was one of the reasons for overruling the decision of the Federal Court in Guo's case.
Your Honour, the other authority that is relied on by our friends is the Fuduche decision in relation to medical matters. Your Honour will have noted that that aspect of his Honour Burchett J's decision is in fact cited and applied by Dr Endrey at 33 of his reasons. So as to the argument based on the medical issue, it is our submission that it is without merit and it is really inviting the court to embark on a review of the fact finding as distinct from the legal issues.
Your Honour, it is next said that there was a denial of natural justice in failing to advise the prosecutor that Dr Endrey had formed an adverse view of his overall credibility. Your Honour, in support of that it is said that this court's decision support the proposition that a decision‑maker has to expose his or her view of credit to somebody as an essential ingredient of according procedural fairness. Your Honour, there is no such decision of this court. The highest that it has been taken is that if there are facts adverse to an applicant to which the tribunal ascribes any weight or is proposing to ascribe any weight and those facts are central, relevant and credible to the decision, then they must be exposed. But there is no obligation on a tribunal, particularly one conducting an inquisitorial type of proceeding such as this, to tell somebody that an adverse view of credit has been formed and inviting submissions about that. But in any event, in this case, as we have already submitted to your Honour, the credibility issue was not determinative of the case and the applicant did not lose for that reason. Insofar as it was relevant, it was a peripheral matter.
Your Honour, as to the section 150 point, our friends properly draw your Honour's attention to the decision of his Honour Finkelstein in Epeabaka which was that the tribunal was not a court for the purposes of the Evidence Act and therefore not bound by section 150. We submit that is a plainly correct decision and we did not understand great weight to be put on the point. The other matter that was urged without great emphasis was point (g), the failure to consider the circumstances, and on the material before the tribunal, the prosecutor might have been become a refugee sur place. Now, the applicant was represented before the tribunal and there was no suggestion that that was a possibility. Indeed, it is a very speculative suggestion. That being so, in our respectful submission there is simply nothing in the point.
I think in short compass, I have traversed the grounds relied on and the conclusion in our submission is that there are just no legal bases to support this application.
HIS HONOUR: How high do you have to pitch that submission to induce me to refuse order nisi? I accept that in putting it in that way, there is an apparent reversal of onus. I am not making some point about onus. But how high do you have to get on this aspect of your argument?
MR TRACEY: I have to persuade your Honour that on the material, there is no reasonably arguable case in support of any or all of the grounds.
HIS HONOUR: It would be a test not very different from a final judgment test, General Steel Industries, all of those statements that you can find summarised there, that is, do not shut somebody out from the ordinary processes, unless very clear.
MR TRACEY: Yes, we accept that, your Honour. We say that this is such a case and therefore there is added weight to the submission that no proper basis has been established for enlarging time. If I may, I will deal with that very briefly. Your Honour, the only material that is before the court on that issue is an affidavit affirmed by Mr Alan Schnider on 15 October 1997 and in paragraph 4 of that affidavit, he deposes that the decision was handed down on 18 March last year. The applicant got it on 21 March last year. Then we come to the operative paragraph:
The applicant, after a conference, instructed me to institute these proceedings in the High Court.
The Court is not told when that conference took place in relation to the decision.
HIS HONOUR: I can understand the sorts of criticisms you would make of that, that it is less than informative, but I must say, Mr Tracey, at the moment my inclination would be that if there were merit sufficient to warrant grant of order nisi, the time is not likely to be a decisive issue. If there is no merit, then there is no merit. The merit seemed to me, if I may say so, to be the principal debating area.
MR TRACEY: Your Honour, we, with respect, agree with that and they conclude the submissions.
HIS HONOUR: Thank you, Mr Tracey. Mr Rose, firstly, do you accept that if I were persuaded that it was very clear that you had no arguable case, that I should then decline to extend time or refuse the order nisi matter on that which ‑ ‑ ‑
MR ROSE: Yes, your Honour, if it is very clear, in its terms that your Honour has used. We don't accept that it is very clear.
HIS HONOUR: I understand that. The test is not very different from the General Steel Industry's collection of tests and are not very clear etcetera.
MR ROSE: Yes, we accept that, your Honour. Your Honour, I don't wish to canvas the merits again. We disagree with part of what my friend says. We note in some of the matters that apart from saying he disagrees with it, he raises no argument, such as the sur place, against the proposition that we put forward, but again, we do not say that was our strongest point.
In relation to the medical condition, your Honour - and again, one that we do say is strong - we put that on a number of bases. One was Dr Arora meant; but secondly, was the fact that there could have been a duty to inquire that arose in the circumstances. Your Honour, at page 33 of the reasons for decision, he does set out the Fuduche test and my friend says the decision‑maker not only set out the test, but he cited it and applied it. We say, well, look, he cited it, he referred to it, but he didn't apply it. Indeed, he indicates at about halfway through the first substantive paragraph:
I have accepted therefore the advice that the applicant has at some point in time suffered severe physical injuries to extensive parts of his body which have left considerable scarring and he shows signs of post-traumatic stress disorder. It is quite clear that his significant injuries were accepted and that both Dr Sime, who dealt with the post-traumatic stress disorder, which was accepted, and Dr Arora, who dealt with the severe physical injuries, which were accepted, that the only issue became a time one.
We say that cried out for some further inquiry if it was felt that it wasn't clear from Dr Arora that this was referring to the 93-94. When one goes to page 34 of the decision, your Honour, under the first paragraph where he deals with the undated statement from the medical practitioner in Hosiapur, that deals with injuries and torture happening in December 1993, and then indicates that Dr Arora in his descriptions is supportive of the observations reported in that document.
So we say there is ample evidence to raise this issue in respect of when those injuries were suffered. As to the other matters, your Honour, unless there are matters I can help you with, I think we have gone across those and they are set out in our outline.
My friend - there is one other matter - he puts it that this is a case of a changed situation in the Punjab. You will recall, your Honour, that I indicated in our submission that the cables and the like that he has referred to do not support the proposition that this is change to remove a subjective fear which may, as at the time of the decision being made, be objectively well founded.
If I recall correctly, Chan indicated, your Honour, that a single act of persecution might be enough to warrant a person being recognised as a refugee. In this case there is no doubt that this man had a beating. There is no doubt it is accepted it is at the hands of the Indian Police. There is no doubt that it was severe. There is no doubt that he has a subjective fear. The question then is, does that fear remain to be objectively well founded and that's the relevant or the real Chan test and we say that has not been properly considered. Unless there are other matters, your Honour, there is nothing further I can add.
HIS HONOUR: Yes, thank you, Mr Rose. The reasons for decision which I am about to give will be subject to revision when I have had an opportunity to review the transcript.
Malkeet Singh is an Indian national. He arrived in Australia on 28 April 1994, travelling on a temporary visa. He was given a temporary entry permit entitling him to say in this country until 28 July 1994. On 28 July 1994 he applied for a protection visa. He supplied a written statement in support of that application and was later interviewed by a departmental officer.
On 22 November 1994 a delegate of the Minister refused his application. On 11 September 1995 Mr Singh applied to review that decision and on 29 November 1995 the Tribunal, as then constituted, affirmed the decision of the Delegate to refuse to grant a protection visa.
Mr Singh commenced proceedings in the Federal Court of Australia for an order of review of the Tribunal's decision and on 14 May 1996, by consent, the Federal Court made orders remitting the matter to the Refugee Review Tribunal, constituted differently, to be determined according to law.
The matter came on for further hearing before the Tribunal, constituted by Dr Endrey, and the hearing proceeded in November 1996. On 18 March 1997, the Tribunal decided that it was not satisfied that Mr Singh is a refugee and affirmed the decision not to grant a protection visa. The Tribunal gave reasons for its decision which extended over 38 pages.
Although the decision was given in March 1997, it was not until some considerable time later, in October 1997, that the Applicant applied to this Court for prerogative relief directed to the Minister for Immigration and Multicultural Affairs, and the Refugee Review Tribunal. The Applicant seeks extension of time for the bringing of these proceedings.
The proceedings are instituted in the original jurisdiction of this Court because, so it is submitted, Part 8 of the Migration Act would restrict the grounds on which the decision might be reviewed by the Federal Court, but does not, so the submission continues, restrict the jurisdiction of this Court under Section 75(v) of the Constitution.
Questions raised by the relationship between provisions in Part 8 of the Migration Act and the jurisdiction given to this Court by section 75(5) are likely to arise on the return of an application for prerogative relief in the matter of Abebe. On 28 January 1998, Gummow J ordered that the application for prerogative relief in that matter should be made by notice of motion to a Full Court (see Re Minister for Immigration and Multicultural Affairs Ex parte Abebe (No 2) (1988) 72 ALJR 630).
The matter of Abebe now being pending, a question arises whether I should embark upon the determination of the present applications. Counsel for the respondent contended that the applications now made were devoid of merit and that accordingly I should simply refuse the applications that were made for order nisi. He acknowledged that in reaching the decision whether the applications were as lacking in merit as he contended, I should apply a high standard of satisfaction; that is to say, he accepted that I should not refuse the Prosecutor/Applicant's claim unless plainly satisfied that it was without any arguable ground.
It is necessary then to consider the nature of the case which the Prosecutor/Applicant seeks to mount. As I have already noted, the reasons for decision of the Tribunal are extensive. The conclusions reached by the Tribunal were put in these terms. The Tribunal said:
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.
Although it is evident that the Applicant has sustained a number of injuries at the hands of the security forces in the Punjab, these appear to have taken place some years prior to his eventual departure from India and may have been the result of the earlier instances of detention in 1982. The available evidence does not support the conclusion that they were any more recent in time as a result of ongoing maltreatment of the Applicant by the police.
With regard to his current physical and mental condition, the Applicant states that although he keeps thinking about his family in India and has pain in parts of the body subjected to electric shocks, he has been able to work in Australia as a farmhand, picking fruit, whenever he is able to find employment.
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.
As is apparent from that statement of the Tribunal's conclusions, there was much debate in the proceedings before the Tribunal about whether what the Tribunal found was the Applicant's subjective fear of persecution, was in fact well founded. A principal part of the Applicant's case before the Tribunal was that he had suffered ill-treatment and torture at the hands of Indian police. There was before the Tribunal a deal of evidence, particularly medical evidence, which showed that, as the Tribunal found, the Applicant had in fact sustained a number of injuries and that those injuries had been sustained at the hands of the security forces in the Punjab. There was, however, a question in the proceedings before the Tribunal about the time at which those events had occurred.
There was also a significant issue in the proceedings before the Tribunal about whether conditions in the Punjab had changed to such an extent that it was, as the Tribunal found, a remote or insignificant chance that the Applicant would suffer persecution on his return to India because of his religion or political opinion.
In Attorney-General for New South Wales v Quinn (1990) 170 CLR 1, Brennan J said at pages 35 to 36:
The duty and jurisdiction of the Court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the Court avoids administrative injustice or error, so be it, but the Court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
It is in the light of that proposition that the majority of the Court held in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 that:
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.
(185 CLR at 272 per Brennan CJ, Toohey, McHugh and Gummow JJ).
The Prosecutor/Applicant would seek to make a number of attacks upon the decision of the Tribunal. The primary attack which it is sought to mount is that the decision reached by the Tribunal was unreasonable. Although a number of aspects of the reasons of the Tribunal were identified, it is I think fair to say that the principal attack mounted on behalf of the Prosecutor/Applicant in this regard was an attack upon the conclusion of the Tribunal that the mistreatment which the Tribunal found the Applicant had suffered at the hands of the security forces in the Punjab, had been suffered no more recently than some years prior to his eventual departure from India and may have been the result of his detention in 1982.
The Prosecutor/Applicant contends that that conclusion was unreasonable because the evidence that was before the Tribunal and material that would have been available to it, had it made sufficient and appropriate inquiries, would have revealed that the mistreatment suffered by the Applicant had occurred in the period very shortly before he left India.
Particular emphasis was placed by counsel for the Prosecutor/Applicant on a medical report supplied in the material presented to the Tribunal by a Dr Arora. That report dated 14 January 1995, recorded that the Prosecutor/Applicant had attended Dr Arora's clinic on 20 December 1994 for medical examination. The report says:
He gave history of being tortured by police in India during the last few years.
The report then goes on to describe the nature of the torture which it was said that the Applicant had undergone and describes the many scars which the doctor observed on the body of the Applicant.
As I understand it, one of the principal contentions which the Prosecutor/Applicant would seek to mount in these proceedings is that in light of what Dr Arora said, and also in light of what had been said in the report of a consultant forensic psychiatrist, Dr Sime, it was unreasonable for the Tribunal to conclude that the torture sustained by the Prosecutor/Applicant had not been sustained immediately before he left India to come to this country.
It may be that this contention enlivens the kind of dispute discussed by Finkelstein J in Epeabaka v the Minister (1997) 150 ALR 397 at 401, where his Honour says that:
Once it is accepted, as I think it should be, that the Tribunal is required to base its findings on probative evidence, it must follow that the Tribunal is also under an obligation to rationally consider that evidence -
and it may therefore raise for consideration questions of the kind discussed in Pochi v Minister for Immigration and Ethnic Affairs (1979) 26 ALR 247, and on appeal, (1980) 31 ALR 666, particularly in the decision of Deane J at 685; and in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 357, per Mason CJ.
It is, however, I think not necessary to express any view on the correctness of what is said in Epeabaka. I am content for present purposes to assume, without deciding, that the principle enunciated by Finkelstein J in Epeabaka either does apply or arguably may apply in proceedings of the present kind.
Even, however, accepting that such a principle applies, and that there is an obligation on the Tribunal, not only to decide a case on probative evidence, but to rationally consider that evidence, the question then becomes whether it is arguable that the decision of the Tribunal in this matter can be characteristised as not having rationally considered the evidence that was available to it.
Further, given that the Applicant contends that the evidence was such as to require the making of further inquiry by the Tribunal, it may be that the question can be framed as whether the Tribunal's decision fails to reveal that it rationally considered the evidence that was before it or could properly and should properly have been obtained by it.
In this respect I consider that it is very important to recall a number of matters. First, the medical report of Dr Arora upon which the Prosecutor/Applicant placed some weight is a report that records the history given by the Applicant. So far as that report purported to date the injuries, it is a report that did so by recording the history given by the Applicant, not by identifying medically observable facts.
Next, the question whether the Applicant had, as he contended, suffered torture immediately before he left India, was one that was much affected by and perhaps primarily dependent upon consideration of whether his evidence in this regard should be believed. As to that, I note that the Tribunal said that:
I cannot accept on the evidence that the pattern of detention and abuse was either as severe or as recent as the Applicant has claimed.
I note further that the Tribunal described the examination report of Dr Arora as being "broadly supportive of the observations" recorded in various other documents submitted to the Tribunal, but that having regard to that material in its entirety, the Tribunal concluded that the available evidence did not support the conclusion that the maltreatment was any more recent than some years prior to his eventual departure from India.
I am not persuaded that an arguable case of unreasonableness, whether in the Wednesbury sense or in the sense mentioned by Finkelstein J in Epeabaka, if that is different, is made out in this respect. In saying that, I do not discard or discount the contention made by the Applicant that consideration should have been given to obtaining further or other material. Even taking account of that contention, I am not persuaded that a sufficiently arguable case is made on this ground.
Many other grounds were advanced on behalf of the Prosecutor/Applicant, but as Counsel acknowledged, those grounds were not put at the forefront of the argument as was that with which I have just dealt. Nevertheless, it is important that they are noted.
Among the material presented to the tribunal was a document purporting to be issued by authorities in the Punjab, recording that the Applicant/Prosecutor is a proclaimed offender and is wanted by authorities in the Punjab in many cases of offending. The Tribunal did not accept that that document was authentic. In this regard, the Tribunal appears to have been moved by the fact that the Applicant had left India, travelling under his own name and on his own documents, and concluded that if the Applicant were then a subject of current interest by the authorities, it is very likely that he would have been detained then.
It is then I think, in light of that conclusion, not necessary to consider whether some question arises under Section 150 of the Evidence Act about taking judicial notice of the authenticity of the seal appearing on the copy document put in evidence before the Tribunal. Even if some question of judicial notice were to arise under Section 150 of the Evidence Act, it would seem to me that that could not debar the Tribunal from concluding, as it did, that the document was not reliable in the sense that it was not a document which led to the conclusion contended for by the Applicant.
Other similar comments were made by the Tribunal in respect of various other documents presented in the course of the hearing by the Applicant/Prosecutor. I do not think it necessary to stay to examine the detail of those.
The Applicant/Prosecutor then contended that he had been denied procedural fairness in the course of the proceedings because adverse findings were made about his credibility without any or sufficient notice to him that his credibility was in issue. As to those, it is enough if I say that on examining the necessarily incomplete and imperfect transcript of proceedings before the Tribunal, the issues that were ripe for decision by the Tribunal were fully and fairly ventilated to the Applicant and his representative in the course of that hearing.
As for the other points that have been raised, again points which were not at the forefront of the argument, it is enough if I say that I am not persuaded that they are grounds having sufficient prospect of success to warrant the grant of our order nisi.
In all the circumstances and for these reasons, I am of the opinion that the application for order nisi should be refused and the proceeding should stand dismissed. Gentlemen, other than to certify for Counsel, is there any other matter that I need to deal with?
MR TRACEY: No, your Honour.
HIS HONOUR: The proceeding will be dismissed. I will certify for counsel. Thank you for your assistance, gentlemen.
MATTER ADJOURNED AT 11.36 AM
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