Singh, Lakhbir v The Minister for Immigration & Multicultural Affairs
[1997] FCA 205
•4 APRIL 1997
CATCHWORDS
IMMIGRATION - review of decision of Refugee Review Tribunal not to grant a protection visa - failure to identify any provision requiring the establishment of a particular matter under s 476(4)(a) - observations or comments not amounting to findings of fact under s 476(4)(b) - allegation of 'substantial injustice' contrary to s 420 in conducting interview - allegation not made out - no need to decide if such breach amounts to failure to observe procedures under s 476(1)(a) - application dismissed.
Migration Act 1958 ss 420, 420(2)(b), 476(1)(a), 476(1)(e),
476(1)(g), 476(2)(a) and 476(4)
Handbook on Procedures and Criteria for Determining Refugee
Status, Office of the United Nations High Commissioner
for Refugees, January 1992
Chan Yee Kin v Minister for Immigration and Ethnic Affairs
(1989-1990) 169 CLR 379
Xiang Sheng Li v Refugee Review Tribunal (Sackville J,
23 August 1996, unreported)
Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212
Eshetu v Minister for Immigration and Ethnic Affairs (Hill J,
31 January 1997, unreported)
Velmurugu v Minister for Immigration and Ethnic Affairs
(Olney J, 23 May 1996, unreported)
Wannakuwattewa v Minister for Immigration and Ethnic Affairs
(North J, 24 June 1996, unreported)
Zakinov v Gibson (North J, 26 July 1996, unreported)
No SG 30 of 1996
LAKHBIR SINGH v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Mansfield J
Adelaide
4 April 1997
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 30 of 1996
)
GENERAL DIVISION )
BETWEEN:
LAKHBIR SINGH
Applicant
- and -
THE MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent
MINUTES OF ORDER
CORAM: Mansfield J
PLACE: Adelaide
DATE: 4 April 1997
THE COURT ORDERS THAT:
The application be dismissed.
The applicant is to pay the Minister's costs of the application to be taxed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA )
)
SOUTH AUSTRALIA DISTRICT REGISTRY ) No SG 30 of 1996
)
GENERAL DIVISION )
BETWEEN:
LAKHBIR SINGH
Applicant
- and -
THE MINISTER FOR IMMIGRATION
AND MULTICULTURAL AFFAIRS
Respondent
REASONS FOR JUDGMENT
CORAM: Mansfield J
PLACE: Adelaide
DATE: 4 April 1997
This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 1 March 1996, by which the Tribunal found that the applicant is not a refugee and affirmed the decision of the delegate of the Minister to refuse to grant a protection visa to the applicant under the Migration Act 1958 ("the Act").
Applicable Law
The applicant applied for refugee status in Australia on 4 March 1994. At that time, s22AA of the Act provided the legislative foundation for the application for eligibility for the status of refugee; it was to be determined by reference to
the definition of "refugee" in s4 of the Act. That definition adopted the definition of "refugee" in the 1951 Convention relating to the status of refugees as amended by the 1967 Protocol relating to the status of refugees ("the Convention"). Upon the coming into effect of the Migration Reform Act 1992, on 30 September 1994, the application then for refugee status was taken to be an application for a protection visa under the Act: s39, Migration Reform Act 1992. The criteria for the grant of a protection visa include that the applicant is a non citizen in Australia to whom Australia has protection obligations under the Convention: s36(2) of the Act, and clause 866.211 of Schedule 2 to the Migration Regulations. Such a person must be a refugee as defined in the Convention. Accordingly, the relevant criterion for the purposes of the application did not alter.
The relevant provision of the Convention is Article 1 Clause A(2) which provides that "refugee" applies to 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; ...".
The crux of this application generally was whether the applicant had a "well-founded fear" of being persecuted for reasons of one or more of the five Convention grounds referred to. That fear contains both subjective and objective elements: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989-1990) 169 CLR 379. As is sometimes the case, the Tribunal in this instance assumed, without positively finding, that the applicant did have a subjective fear of being persecuted for a Convention reason if he were to return to his country of nationality. Its decision turned upon whether that fear was, in the relevant sense, well-founded.
The application to this Court for review of its decision under s475(1)(b) of the Act is confined to the grounds specified in s476 of the Act: s485(1) of the Act.
Background
The applicant was born on 13 June 1969. He is a Sikh.
As the basis of his application changed over time, it is necessary to note both the initial and ultimate foundations for his claim. The change itself explains in part the Tribunal's decision.
As appears both from the Tribunal's reasons for decision, and from the initial record of decision of the delegate of the Secretary given on 28 June 1995, the applicant first claimed in his application that his arrival in Australia was undocumented, after having fled India in September 1993, and there having travelled to Indonesia under false documentation and then to Timor, and then by fishing boat to Broome. His initial claim was that he, and others, were active members of the Akali Dal movement openly supporting Sikh separatism for the Punjab region of India, including providing succour and protection for those supporters of Sant Jarnail Singh Bhindranwale who had escaped from the Golden Temple following the attack on it in June 1984. In August 1989, he and others had been arrested, detained and tortured by the police but was released after one month. He was then further re-arrested and tortured. Then he and others, whilst being taken to court, were rescued by armed members of the Bhindranwale Tiger Force, but during that rescue two policemen and at least one other person had been killed. He had been in constant hiding since then, until his escape from India.
That account of events was not true.
He acknowledged that when confronted about it in circumstances referred to below.
Investigations by the Department disclosed that the applicant had arrived in New Zealand on 19 January 1989 on an Indian passport. He apparently married an Australian citizen in New Zealand, and applied to migrate to Australia as the spouse of an Australian citizen. That application was rejected on 14 August 1989. He subsequently applied for residence in Australia on 29 November 1991, on transitional grounds, at which time he claimed to be single. That application was also refused on 2 July 1992. On 31 August 1992 he had applied for refugee status within Australia, the ground of his alleged persecution then being because of his father's membership of the Ba bbar Khalsa movement, and claiming to have been arrested by police on two occasions because of the involvement of his father. That application was rejected on 9 December 1992. An appeal from that decision was subsequently withdrawn. He was thus in New Zealand during the events of his alleged mistreatment by the authorities as he first expressed them.
The present application was made on 4 March 1994. When investigations had disclosed the apparent falsity of his claims, he was interviewed by the delegate whose decision it was, ultimately, to refuse the application.
At the time, the applicant was advised by, and represented by, a migration agent. The interview was initiated by that agent, to the delegate at his home. It was conducted through an interpreter. In the circumstances, with at least the agreement of the applicant through his agent, it was recorded in note form by the delegate in the absence of facilities to otherwise record the interview. Because point was taken about it, I find that the interpreter was not sworn, the record of interview (of just over one page) was not then shown to the applicant, and was not signed by him, nor by his migration agent, nor by the interpreter.
The delegate, according to the record of interview, first ensured that the applicant understood the reason for the interview, and that he was able to understand the interpreter. It was then put to him that the information as to the circumstances of his arrival in Australia was untrue. It is recorded then as follows:
"The applicant stated that what he had said in his application and at interview were lies. He was instructed by his friends to put those claims. He stated that he had never been arrested or persecuted. He went as a visitor to New Zealand on 21 January 1989 and stayed there until 1993. He stated that he travelled on his passport to New Zealand and that he had his Indian passport with him. He apologised for misleading the department and emphatically stated that from now on he will be telling the truth."
After some discussion about his marital status, and a work permit, the delegate notes that he told the applicant that he would be making a decision on his application for a refugee status in the near future, and asked him whether he wanted to add anything to his application. He stated that he was sorry for telling lies. The delegate, in the light of that information, considered the applicant's claims for persecution for reason of each of the Convention grounds. He did not identify any claims made in respect of nationality, race, or membership of a particular social group. In the light of the additional information put to, and accepted by, the applicant at the interview, he concluded that the applicant had not established a claim that he faced a real chance of persecution for reasons of his political opinion or his religious beliefs. He then considered whether the applicant's membership of the Sikh faith of itself might give rise to a well-founded fear of persecution. It is obvious that the political situation in the Punjab is not entirely peaceful. However, he concluded that there was no evidence to indicate a real chance of the applicant facing persecution for his political opinion or his Sikh faith were he to return to India.
The applicant, in his evidence to the Tribunal, said that his father was a member of Ba bbar Khalsa and had been killed because of that association, probably about 1985. He did not know anything about Ba bbar Khalsa, but because his father was a member, he said that extremists came to his place both before and after his father's death. He said that, for that reason, the police searched his house more or less regularly every week or two between 1985 and 1989 when he had departed to New Zealand. On one occasion, all his family members, including himself, were taken to the police station where he said he had been beaten and released the next day. He was unable to remember when that was.
His claim for refugee status thus was based upon a fear of returning to the Punjab because of the political situation. The Chief Minister Beant Singh had recently been killed there, and a prominent singer also killed. He regards the police as corrupt, and that it is unsafe to return to the Punjab. There was extensive material and a lengthy submission put to the Tribunal on the issue of the political situation in the Punjab, in particular as to how Sikh's were treated, the detail of which was noted by the Tribunal.
The Tribunal's decision
Having heard his evidence, the Tribunal considered it appropriate to address his application as related to persecution for reasons of religion or political opinion.
His interview with the delegate referred to above was at no time retracted in his application to the Tribunal, either by himself through his interpreter or by his migration agent. The Tribunal found that the basis of his claimed fear of persecution was "for the most part vague and confused and it is difficult to place much credence on it". The Tribunal observed that it was difficult to accept such frequent police inspection or search of his family property in the face of his statement to the delegate in the interview that he had never been harassed by police, and observed similarly in respect of his evidence that he and his family had only once been taken in for questioning by police, that it was difficult to accept given the level of asserted police interest in his home and family, particularly as that related to a period during which activities by Sikh militants were at their height and the police were operating with unrestrained brutality in pursuit of extremists. Clearly enough, ultimately, the Tribunal did not accept his version of those events as given at the hearing before it. When the Tribunal invited comment on that last mentioned matter, the applicant changed his story again and indicated that he may have been taken in for questioning on more than one occasion. The Tribunal did not accept it as plausible that he could not remember whether he had been taken in for questioning by the police on only one or more than one occasion over a period of several years. The Tribunal was not satisfied that he was ever taken in for questioning.
The Tribunal accepted that the applicant is illiterate, and that other family members may have made claims on his behalf and may have instructed him on what to say in his initial claim. Because he admitted having lied to the department, and the way in which he gave evidence, and the content of his evidence, the Tribunal concluded that it could not accept much of what was said at the hearing and in particular that it could not accept that his family harboured Sikh extremists, and was as a consequence subjected to frequent visits by police over a period of approximately five years. Even accepting that on one occasion he had been taken to the police station and interviewed, it noted that that occurred at a time when questioning of young Sikh men was common, and his unconditional release the following day (on his own version) led the Tribunal to conclude that the police was satisfied that he was not involved with extremists. That accorded with his own evidence at one point. Again on his own evidence, and initial Tribunal probing, he had no further problems with police. He made no claims that he had any difficulty in obtaining a passport or in leaving India to go to New Zealand.
Having assessed the evidence and material before it, the Tribunal accepted as correct the applicant's statement at the second departmental interview that he had never been harassed or tortured by police. It concluded that at the time he left India, he was of no interest to the authorities and did not then face a real chance of persecution. It found that the applicant has had no involvement with Sikh organisations in Australia, such as to have the potential to cause him problems on his return to India. The remaining question for the Tribunal was whether, as a result of events which have occurred in India since his departure, he is at risk of persecution should he return to India.
The Punjab has experienced a long period of instability and violence resulting in thousands of Sikh deaths since 1983, although evidence before the Tribunal indicated that more recently the situation has greatly improved. The Tribunal referred to extensive material in support of that conclusion, including that the assassination on 31 August 1995 of the Chief Minister of the Punjab, Beant Singh, did not signal a wholesale revival of turmoil. The killing of a Sikh singer was said merely to emphasise the point that there is still danger in the Punjab, but the evidence of a great improvement in the situation from the time the applicant left in 1989 was said to be overwhelming. In reaching that conclusion, the Tribunal specifically considered the extensive submission put to it on behalf of the applicant by his migration agent to the contrary, including extensive documentary material.
It therefore concluded that there was not a real chance of the applicant being persecuted for a Convention reason if he were to return to India.
Grounds of Review
Ultimately, in submissions, four grounds of review were pressed on behalf of the applicant:
that in respect of eight "findings" the decision should be reviewed pursuant to s476(1)(g) and (4) of the Act;
that the Tribunal erred in failing to address the "claim" by the applicant that he was being persecuted for being a Sikh, namely for reasons of race, nationality, and membership of a particular social group as well as political opinion and religion;
the Tribunal erred as a matter of law under s476(1)(e) in "not giving the applicant the benefit of any doubt"; and
the Tribunal erred under s476(1)(a) in failing to observe procedures required by the Act to be observed in connection with the making of the decision, in particular in failing to exclude from its consideration the information provided in the interview with the delegate of the Minister referred to above when the applicant admitted to having lied in his application and said that he had never been arrested or persecuted by the police in India; it was contended that such evidence should have been excluded or given "very little evidentiary weight". The procedure alleged not to be have followed is that that record of interview was "fundamentally and inherently unreliable and ought not have been accepted under s420 of the Act".
Section 476(1)(g) and (4)
Section 476(1)(g) and (4) mirror the provisions of s5(1)(h) and (3) of the Administrative Decisions (Judicial Review) Act 1977. No submission was made that decisions under those provisions of that Act are not relevant.
Although the grounds of appeal in the amended application refer to s476(4)(a) of the Act, no provision was identified which, either explicitly or by implication, was said to require that to reach the decision a particular matter must be established. Sackville J in Xiang Sheng Li v Refugee Review Tribunal (23 August 1996, unreported) distinguished between a particular fact the existence of which was necessary to be proved for the ultimate decision to have been made on the one hand, and the ultimate decision itself on the other. I agree that that distinction is an appropriate one, and determines certain of the complaints under this heading, even assuming
that it is not necessary to have a requirement by law, whether expressed or by necessary implication, that a particular matter in the nature of a threshold or qualifying or precondition fact to the ultimate decision must exist. In my view, the particular complaints, do not fall within the scope of matters which is contemplated by s476(4)(a). I shall deal with each of them separately below.
Nor do I think that the applicant has successfully brought any of those matters of which he complains under s476(4)(b). For that section to obtain, there must be a finding of fact that is critical to the ultimate making of the decision complained of, albeit a fact which is not the only link in the chain of reasoning; it must be a link in the chain of reasoning such as that its absence would prevent that chain of reasoning from enabling the conclusion ultimately made; Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-224. Furthermore, what were called "facts" in the grounds of review in some instances do not represent either particular matters required to be established or the existence of particular facts as found, but merely observations or comments which in some, but not all, instances led to the making of findings of facts. In addition, in my view there was evidence or other material from which the Tribunal could reasonably be satisfied as to the findings of fact - to the extent that the matters complained of represent findings of fact - complained of.
I turn to consider the several matters identified in the grounds of review.
It is said that the Tribunal erred in not finding that the applicant's subjective fear of persecution is objectively founded, and that there was no evidence to justify the making of that decision. In my view that is not a conclusion which is open to attack under s476(1)(g) for the reasons given. In any event it is no more than an attempt to substitute a conclusion on the merits on the part of this Court for the views of the Tribunal; that is not the function of this Court on review. It complains not of a finding of a particular fact but of the absence of finding of a conclusion. The ultimate conclusion was one which resulted from a series of factual findings, including findings as to the reliability of the evidence of the applicant, and very largely based upon the rejection of his evidence as unreliable. Once that assessment of his credibility was made, the conclusion that this complaint should be rejected is virtually irresistible.
It is next complained of a "finding" that the members of the applicant's family should have been arrested and charged instead of being detained by police for questioning, as to which it is said there was no evidence to justify that finding. In my view that misrepresents what the Tribunal was doing. It was an observation made by the Tribunal relevant to its consideration of the applicant's credibility. It is entirely appropriate for a Tribunal or fact finder to make such observations as to the inherent likelihood or unlikelihood of a version of events being correct, both in terms of assessing what findings it might or might not make and in terms of whether it might or might not accept that particular version of events from a witness as credible. It did not make the finding complained of at all. Similar comments apply in respect of the complaint as to the "finding" that the applicant and his family could have evaded police so easily over a period of years if the police had a genuine interest in them.
It is next complained that the Tribunal erred in not finding that the applicant had become confused over the telephone during the interview referred to, as there was no evidence to justify the making of that decision. In my view it is a misconceived attempt to bring this topic under s476(1)(g). It is not a finding at all. In any event a finding as to his confusion or lack of confusion would not necessarily and probably not at all, on the authorities, amount to a finding as to a particular matter or as to a particular fact within the section. The failure to make a finding, where there is no requirement of law that a finding on the topic of his confusion or otherwise should have been made does not enable s476(1)(g) to have been invoked; nothing was, or I venture to say could have been, pointed to which as a matter of law required such a matter to be established before the decision could be made.
The next complaint is of a failure to find that the (assumed) subjective fear of persecution was not objectively founded, having concluded that the applicant was questioned on one occasion at the police station and that this was during a period of great police activity against Sikh extremists when the questioning of young Sikh men was common. Apart from the matters referred to as to ultimate facts in issue, that is simply not correct. There was evidence to justify the making of the decision. Indeed similar comments apply in respect of the complaint, somewhat repetitiously, that there was a finding that the applicant had no objective basis for his fear of persecution. Once the finding of credibility was made, it was entirely proper for the Tribunal to have rejected his complaint as to the facts upon which the real chance of persecution was sought to be made out. The Tribunal went beyond rejection of his complaint to look at the evidence generally to see whether, in the light of it, despite rejecting his evidence, there was a real chance of persecution should he be returned to India and concluded that there was not.
Section 476(1)(e) - Errors of Law
There were two errors of law complained of.
In my view neither is made out.
Firstly it is said that the applicant's claim for refugee status based upon persecution for reasons of race, nationality and membership of a particular social group as well as political opinion and religion was not considered. Fundamentally, it is said that his claim that he suffered persecution for being a Sikh was not considered.
In my view that misrepresents what the Tribunal has done. It is not a proper complaint that the Tribunal did not specifically refer to the application relating to the applicant being a member of a particular social group, namely followers of Sant Jarnail Singh Bhindranwale the religious leader, because of course that was formulated on the basis of a claim which the applicant admitted to have been a lie. He did not press it before the Tribunal. The Tribunal said that it considered his application as appropriate under Convention claims for his religion (the Sikh religion) and for his political opinion. It proceeded to do so. Having rejected the applicant's claims that he was of a special interest to the authorities, and at the time that he left India he faced the real chance of persecution should he return, and having noted that he made no claims to any involvement with Sikh organisations in Australia, the Tribunal nevertheless specifically went on to consider whether as a result of events which have occurred in India since his departure he is at risk of persecution should he return to India. It considered the materials available to it. That included the question of whether, simply by reason of him having been a Sikh, he might be at risk of persecution should he return to India. It involved having regard to the submissions made on his behalf and the material put forward on his behalf by his migration agent directed to that topic. Ultimately the conclusion was, quite apart from the applicant's own absence of any claim to have been persecuted because he was a Sikh, that there was no such real chance. Any risk to him, either because of his personal activities and experience, or because of his family activities, or because of him being a Sikh, was assessed by the Tribunal. Whichever of the five Convention labels the applicant applies to the categorisation of his complaints, in my view they were considered.
The second complaint under this heading is said to be the failure to give the applicant the benefit of any doubt. It was based upon par203 and par204 of the Handbook on Procedures and Criteria for Determining Refugee Status, Office of the United Nations High Commissioner for Refugees, January 1992. Paragraphs 203 and 204 read:
After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.
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."
In my view, whilst the use of the Handbook might be of assistance on occasions, it does not prescribe a matter of domestic law. Nor do I consider those observations to be particularly apposite to the applicant's present circumstances. Part of the picture was that some of his statements were lies; he said as much. The balance of his statements as to his father's involvement in Ba bbar Khalsa was accepted by the Tribunal, but what was not accepted was his assertions as to the extent of police interest in him and his family before he left India in 1989. In my view, the Tribunal did approach his complaints sympathetically but, at the end of the day, concluded that he was not presenting a reliable picture to it. It did so not simply based upon his evidence, his earlier statements, but also upon the information available from the variety of sources as to the treatment of Sikhs in the Punjab during the years to 1989 and subsequently. No error of law is shown.
Sections 420 and 476(1)(a)
The interaction of ss420 and 476(1)(a) of the Act, particularly in the context of s476(2)(a) of the Act which precludes the Court from reviewing a decision on grounds that the principles of natural justice were not complied with, has been the subject of a number of decisions of this Court at first instance, including very recently the decision of Hill J in Eshetu v Minister for Immigration and Ethnic Affairs (31 January 1997, unreported). The issue as to whether s420 lays down any procedure required by the Act to be observed in accordance with the making of a decision, so as to expose the Tribunal's processes under s420 to review under that subsection, and then as to the scope of operation of s476(1)(a) in the face of s476(2)(a) are there discussed. In the circumstances of this case, it is unnecessary for me to add to that picture.
For the purposes of dealing with this application for review, I am prepared to assume that s420(1) and s420(2)(b) do prescribe a procedure required by the Act to be observed in connection with the making of the decision complained of. The particular focus of the applicant was upon the obligation to accord "substantial justice" under s420(2)(b). I am also prepared to assume that a procedural obligation to accord substantial justice is one which is reviewable by the Court despite the provisions of s476(2)(a) of the Law. I emphasise that I am not making a decision to that effect but simply making those assumptions for the purposes of this application. Even so, I do not think the ground of complaint is made out in any event.
It was not contended that s420, so far as it is capable of laying down a procedural requirement, can in any event give rise to any opportunity for a review on the merits: see Velmurugu v Minister for Immigration and Ethnic Affairs (Olney J, 23 May 1996, unreported); Wannakuwattewa v Minister for Immigration and Ethnic Affairs (North J, 24 June 1996, unreported) and Zakinov v Gibson (North J, 26 July 1996, unreported).
The substantive complaint is as follows:
"The Applicant has never been given an opportunity to have the record of interview read to him and he has never been given an opportunity to comment upon the record of interview after it was typed up. He has never been given an opportunity to sign the record of interview nor to initial it. In fact he has never signed nor initialled the record of interview. The record of interview does not indicate how long the interview took; whether the interpreter was properly qualified; whether the interpreter was properly sworn; and it does not identify what language or languages were used during the interview. Moreover, the interpreter did not sign the record of interview. At the Tribunal hearing which was conducted on 13th February, 1996 the Applicant stated that he was confused at the telephone interview. The Tribunal has also made a finding that the Applicant is illiterate and that other family members may have made claims on his behalf and may have been instructing him on what to say."
On those matters, it is submitted that the Tribunal proceeding according to "substantial justice and the merits of the case" should have excluded the record of interview as evidence or placed very little evidentiary weight on it, as it was "fundamentally and inherently unreliable". It was also initially the subject of complaint that the officer of the Department of Immigration who conducted the interview was the delegate who was the primary decision maker in the matter, but that particular complaint was not pursued.
It is correct that the record of interview was not read to the applicant, nor was he asked to sign it. It does not indicate how long the interview took, nor identify the qualifications of the interpreter, nor the language interpreted during the interview. It was not signed by the interpreter. The interpreter was not sworn.
In my view, none of those things either of themselves or taken collectively amount to the Tribunal failing to accord substantial justice to the applicant.
The interview, although invited by the Tribunal, took place as and when it did at the request of the applicant and in the presence of and with the support of his migration agent. An interpreter was present. I have no reason to think, nor was anything put in submission, to suggest that the interpreter did not interpret effectively. No authority was put forward to support the contention. It appears to fly in the face of the spirit of s420(1) and (2)(a) to provide a fair, just and informal review and not to be bound by technicalities or rules of evidence to suggest that such matters per se constitute grounds for exclusion of obviously relevant material. Nor was anything put to suggest that in any specific way the interview had taken place in a manner not consistent with the Code of Procedure for dealing fairly, efficiently and quickly with visa applications: Subdivision AB, Division 3 of the Act, which applied to the delegate. Whilst one cannot say there will never be circumstances in which the procedure adopted may be inappropriate, and even perhaps give rise to a ground of review under s420, there is nothing specifically to suggest that that was the case in the present circumstances.
It is not correct to assert that the applicant was not given an opportunity to comment upon the record of interview. At the hearing on 13 February 1996, after the preliminary observations of the Tribunal, the applicant started by dealing with his personal circumstances including the fact that he came to Australia on 31 January 1993. The Tribunal then proceeded:
"MR GLAROS: Okay. Mr Singh, initially when you were interviewed by the Immigration Department you made claims that you were tortured by the police and the information you gave related to a period when, in fact, you were living in New Zealand. At a second interview conducted by the Immigration Department you admitted that you had been lying and you said that you had never been arrested or harassed by the police in India.
THE INTERPRETER: Yes, I remember that.
MR GLAROS: So, the most recent information I have then is that at the second interview you said that you had never been arrested or harassed by the police in India. If that is the case, what then is the basis of your claim for refugee status?
THE INTERPRETER: One of my friends told me in Sydney to apply like that but one point, I want to make it clear that my father is in an organisation named Ba bbar Khalsa."
That is an acknowledgment of the interview and the substantive part of it which was the subject of focus in the submissions. He then said that he did not know anything about the organisation Ba bbar Khalsa other than that his father was a member of it, that his father was killed, and that he was not sure by whom or when, probably around 1985 or 1986. After some more questions as to why he was afraid to return to India, the focus of the answers being that because of his father's membership of Ba bbar Khalsa the police used to check
his home randomly in case other extremists were there, an experience which he said happened regularly and frequently and that once he and the other members of his family had been taken to the police station and beaten but then released the next day, the Tribunal observed:
"MR GLAROS: This conflicts with the evidence you gave at the second Immigration Department interview, that you had never been tortured or harassed by the police. I am surprised that you never mentioned this incident at the second interview. Is there any particular reason you did not?
THE INTERPRETER: The interview as on the phone, on the telephone and I lied on that.
MR GLAROS: But you said at that interview, you said that you had lied in the past but from this moment onwards you are telling the truth, that is what you said at ---
THE INTERPRETER: I lied in the first story, I lied in the first story.
MR GLAROS: Right, okay. You admitted this at the second interview that you had lied before that. What I am saying to you is if in fact it is true that the police took you and your family to the police station and beat you, this does not - this conflicts with the evidence you gave at the second interview where you said you had never been harassed or tortured by the police.
THE INTERPRETER: I couldn't remember why did I say that.
MR GLAROS: So what I am saying to you is, at the second interview over the telephone, you made it plain that you had no problems with the police, you had never been harassed by them or tortured by them. If in fact the story you are telling me now is correct, I find it rather surprising that you never mentioned it at the second interview, that you were beaten by the police.
THE INTERPRETER: I was actually confused on the phone."
At that point, the Tribunal observed, inviting comment from the applicant, that it was surprising that the police had come
so many times and found extremists a number of times but had detained the applicant and his family only once; the applicant explained that he and his family then regularly escaped every week or two every time the police came. He then became unsure as to whether there was only the one occasion that he been taken to the police station. The course of that transcript indicates ambiguity, slippage of meaning, and the like upon which even without more the Tribunal might have been unsatisfied as to the unreliability of the applicant. For present purposes, however, what is plain is that the Tribunal did put to the applicant the essential matters raised in the record of interview and the applicant acknowledged having said them. He did not complain as to the terms of the record of the interview as to its accuracy or as to the circumstances in which the interview took place. It was only when pressed with an inconsistency between his record of interview and his evidence at the Tribunal that he then claimed to have been confused.
It was up to the Tribunal to accept or not accept that version of events. In conducting the examination as and when it did, and in putting to the applicant for his comment during the course of his evidence the essential features of that interview, in my view the Tribunal did not act in any way which could be identified as unfair or as not according substantial justice to the applicant. Moreover, the applicant acknowledged both the interview and the substantial components of it as having been accurate, in the sense of having accurately recorded what he said in the course of his evidence before the Tribunal. There is nothing otherwise to suggest that he did not say the things which he is recorded to have said, although at one point he explained that he said certain parts of that record of interview as he was "confused". The Tribunal took that into account. It was up to the Tribunal to give that evidence what weight it considered appropriate.
I see nothing in the applicant's own evidence which indicates that the record of interview is fundamentally and inherently unreliable. It accords with the departmental records which were put to him, and which he accepted, as to his movements from 1989 and with the evidence which he gave at the Tribunal. The only aspect which was contested in submissions was whether he had been arrested or persecuted by the police. In his evidence, he acknowledged having said that he had not been arrested or persecuted by the police. His evidence was that he had been detained overnight on one occasion and then released. There was an inconsistency. The weight that the Tribunal gave to his evidence, bearing in mind his observation that he was confused at the time of that interview, was for it.
The matters complained of do not, in my view, go any way to supporting the assertion that the record of interview was fundamentally and inherently unreliable, or that the Tribunal in having regard to it at all, and in particular in making use of it in the way which it did, failed to accord substantial justice to the applicant.
Accordingly, even making the assumptions as to the law which I have set out above, I do not think the Tribunal has failed to accord substantial justice to the applicant or has failed to conduct itself in a fair way, so as to attract the possible operation of s476(1)(a) of the Act.
Conclusion
It follows that this application should be dismissed, and that the applicant should pay the Minister's costs of the application to be taxed.
I certify that this and the preceding pages are a true copy of the Reasons for Judgment of the Honourable Justice Mansfield.
Associate:
Dated:
Counsel for the Applicant : Mr M Clisby
Solicitors for the Applicant : Paul Kirk Roberts & Co
Counsel for the Respondent : Ms S Maharaj
Solicitors for the Respondent : Australian Government
Solicitor
Hearing Date : 10 March 1997
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