Singh v Minister for Immigration and Multicultural Affairs

[1997] FCA 1258

FEDERAL COURT OF AUSTRALIA

MIGRATION - application for review of decision of Refugee Review Tribunal (“RRT”)  that applicant is not a refugee - whether RRT acted in accordance with substantial justice and the merits of the case - where applicant submitted additional evidence after RRT hearing - adverse findings as to credibility of applicant - whether applicant should have been given further hearing - whether RRT should have referred applicant to specific sections of material it was intending to rely upon

Migration Act 1958 (Cth), s 420

Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, cited
Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 5 November 1997, Full Federal Court), cited

GURJIT SINGH v
THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VG 188 of 1997

TAMBERLIN J
MELBOURNE
14 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 188  of   1997

BETWEEN:	GURJIT SINGH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	TAMBERLIN J
DATE OF ORDER:	14 NOVEMBER 1997
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The application be dismissed.

1. The applicant pay the costs of the respondent.

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

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VG 188 of 1997

BETWEEN:	GURJIT SINGH APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	14 NOVEMBER 1997
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

The applicant seeks review of a decision of the Refugee Review Tribunal (“the RRT”), under s 476 of the Migration Act 1958 (Cth) (“the Act”) made on 9 April 1997.

The RRT was not satisfied that the applicant was a refugee and it affirmed the Ministerial delegate’s decision not to grant a protection visa.

Background

The applicant, who is a Sikh by religion, was born in the Punjab, India in 1974. He left India, and arrived in Australia on 23 May 1992. An application for refugee status was made on 19 December 1992. This application was refused by the delegate on 7 December 1992.

The applicant applied to the RRT for review of this decision. The RRT on 31 March 1994 affirmed the decision of the delegate. This decision was then set aside by Marshall J of this Court on 5 July 1996, on the grounds that there had been a denial of natural justice. The matter was remitted to the RRT. On 9 April 1997 the RRT again affirmed the decision of the delegate that the applicant is not a refugee.

When the applicant was 15 he joined the All India Sikh Student Federation (“AISSF”). The AISSF is a militant youth group of the Akali Dal. As a member of the AISSF the applicant says that he spoke on behalf of the AISSF and received death threats. At this time he was attending a college in Jallandhar, 30 km from his home. He said that he was often searched at road blocks, questioned and roughly treated by the police.

The applicant claimed that he was held by the authorities for two days after being involved in tearing a flag at a demonstration on Independence Day on 15 August 1990.  During this detention he was mistreated and sustained a number of injuries, including a broken tooth, a cut lip and bruising to his legs. The applicant was released on payment of a bribe.

The applicant also states that he was detained later in 1990 when enquires were made about a senior member of the AISSF.

According to the applicant his cousin and friends were arrested and tortured.

The applicant claims that his father is a member of the Akali Dal, and has been beaten by police officers as a consequence. He further alleges that his father was arrested a week before he left India, but only detained for one night. He states that his father is now living at various temples as the police are looking for him. The applicant also claimed that his brother had been tortured.

The applicant claims to be a member of the International Sikh Youth Federation (“ISYF”). He says that he attended its meetings and two demonstrations since 1996.

The applicant states that his grandfather has learned that the applicant has been placed on a “hit list” since his departure.

The applicant’s grandfather gave evidence to the RRT. He also stated that the applicant’s father had been given a difficult time by the authorities due to his involvement with Akali Dal. He claimed that the applicant would not be safe anywhere in India.

After hearing the application, the RRT on 4 February 1997 forwarded additional material concerning the current situation in India to the applicant’s adviser, inviting further submissions. No further submissions were received in response to this material.

In March 1997, the applicant submitted an affidavit to the RRT.  In the affidavit the applicant claimed that after August 1990 he had been promoted to the upper ranks of the AISSF and that his position had given him access to privileged information.  He also claimed that he was an ordinary member of an AISSF committee and as a result was associated with high profile people; made frequent speeches; engaged in propaganda work, and knew of militant operations. The reason the applicant gave for not revealing the level of his political activity previously was a fear that he may be excluded from the definition of refugee due to his knowledge of crimes against humanity. He claimed that his brother has been harshly treated by the authorities because they are aware of the applicant’s own political involvement and knowledge. The applicant stated that the pursuit of his brother indicated that the authorities were still searching for the applicant.

RRT findings

The RRT stated:

“The Tribunal is satisfied that the applicant was a member of the AISSF and that he engaged in activities on its behalf in ways claimed by him at, and prior to, the latest hearing. He had not claimed to have been an active member of the AISSF or to have had a prominent role within the organization until after the latest hearing. In view of the numerous opportunities the applicant had had during the course of his application to outline the extent and nature of his involvement with the AISSF, his belated claim that he was a high profile member of the AISSF raises serious questions of credibility.”

The RRT concluded that the applicant’s belated claim to high profile activity with the AISSF and to privileged knowledge of militant operations was not credible. Accordingly it was not necessary to consider the provisions of Art 1F of the Convention Relating to the Status of Refugees as amended by the Protocol Relating to the Status of Refugees (“the Convention”).

The RRT accepted that the applicant had been detained and mistreated in August 1990. It also accepted that later in 1990 the applicant had again been detained, and this time questioned about a senior member of the AISSF.  The RRT noted that on neither occasion had the applicant been charged with any offence.  It also noted that the applicant had remained in India until mid-1992 without encountering serious difficulties and was then able to legally depart India.  A claim by the applicant that he was only able to leave India by removing his turban was rejected by the RRT due to the fact that the photograph of the applicant in his passport showed him wearing a turban.

The RRT found that the applicant was not of continuing interest to the authorities.  It decided that the applicant’s problems with the authorities during 1990 did not signal that he now, or in the foreseeable future, faced a real chance of persecution for a Convention reason.

The RRT accepted that the applicant’s cousin and friends of the applicant had been arrested and tortured while the applicant was still in India, but concluded that they had higher profiles than the applicant and that therefore their situation was not comparable.

The RRT did not find the applicant’s claim that his father had been arrested just prior to him leaving India credible. Nor did the RRT accept that the applicant’s father belonged to Akali Dal Man. However, it went on to say that, even if the applicant’s father was a member of a separate group or faction of Akali Dal, there was no basis for finding that the applicant would, as a result, face a real chance of persecution. The RRT found the allegation that the applicant’s father was being pursued by authorities due to his association with Akali Dal “implausible”.

In relation to the applicant’s claim to be a member of the ISYF, the RRT noted that he had made no mention of this until just prior to the second hearing. However, the RRT accepted that the applicant had developed an association with the ISYF, but found that there was no real chance of persecution as a result of this association. In reaching this conclusion the RRT referred to a Department of Foreign Affairs and Trade (“DFAT”) cablegram of 3 January 1996 which stated that an active member of the ISYF in Australia would be of little interest to the authorities in India.

In relation to the evidence of the applicant’s grandfather and a declaration of Kuldip Singh, which was presented at the hearing and stated that the applicant was on a hit list, the RRT found that:

“... the applicant and his grandfather have contrived to give false evidence in support of the applicant’s claim to refugee status. In view of the inconsistencies with the applicant’s evidence concerning his father’s period of hiding, exaggerations in relation to the prevailing situation in Punjab, and anomalous evidence concerning the preparedness of police to reveal false cases against the applicant’s family at the same time that they are allegedly seeking the applicant (and others), the Tribunal finds that the declaration by Kuldip Singh is contrived and is part of a self-serving endeavour by the applicant, in league with others, to establish a claim to refugee status.”

The RRT stated that it did not find it believable that the applicant was now wanted by authorities for a Convention reason.  Nor did it find it credible that any problems experienced by the applicant’s family since his departure were attributable to the applicant for a Convention reason.

The RRT then reviewed material in relation to the current situation in the Punjab.  It referred to various sources of information, including reports by Amnesty International, DFAT and the US State Department, as well as national and international newspapers and journals.

The RRT concluded:

“In considering the evidence before it, the Tribunal finds that there has been a substantial change in circumstances in Punjab since the applicant left, and more particularly over the past few years. The indiscriminate violence of both the authorities and some Sikhs pursuing their aims has dissipated and been replaced by a situation where the authorities target those people it suspects of being ‘militants’ or who have ‘some established history of terrorist associations.’ The applicant does not have credible claims that bring him within those groups at risk of attracting the interest of the authorities and, significantly, was able to leave India legally.”

The RRT went on to find that if the applicant did not wish to return to the Punjab he could safely relocate to other parts of India, where he would be free from any real chance of persecution.

The applicant’s case

The case argued before me on behalf of the applicant was in two parts.

First, it was submitted that the RRT had not acted in accordance with the substantial justice and merits of the case as required by s 420(2) of the Act. This is said to be because after the hearing, which took place on 10 January 1997, the applicant had submitted an affidavit, sworn by him on 25 March 1997, setting out additional material. This was sent under cover of a letter from Baker & Armstrong, solicitors for the applicant, dated 25 March 1997. The terms of that letter are important and read as follows:

“Dear Sir,

Gurjit Singh

We are sending a copy of an affidavit by Mr Singh deposing to further important and relevant information.

This information relates to his involvement in a very prominent way in propaganda for the AISSF, and for a separate Khalistan. It relates also to his possession of very dangerous information about other people involved in militant activities.  This is why Mr Gurjit Singh was afraid earlier to mention the level of his involvement in anti government activities to the Tribunal.

The new information also explains why the authorities were so determined in their pursuit and torture of Gurjit’s brother; they had good reason to try to detain a person with such sensitive information.

We submit that the new evidence of Mr Singh’s affidavit be accepted. If the Tribunal has any questions about the contents or truth of the affidavit, expressly made to have the same force as evidence in a court, we request as a matter of substantial justice and the merits of the case, that the Tribunal offer the applicant the opportunity to respond to those questions at another hearing.

If you have any queries in this matter, please contact Anthony krohn (sic) at this office.

yours faithfully,

BAKER & ARMSTRONG”

The affidavit of 25 March in substance asserts that the involvement of the applicant after he participated in the burning of national flags on 15 August 1990 was at a higher level of responsibility than had previously been asserted.  Accordingly, because of the increased degree and level of his involvement he came to know dangerous information and knew people who were involved in militant operations.  The affidavit seeks to explain why the claims to a higher and more responsible level of involvement in the activities of the AISSF were not asserted prior to or during the hearing.  It was because of his extreme fear of revealing his intimate connection with an organisation some of whose members were involved in terrorist activities.  The applicant elaborated on this reason by saying that the information was very dangerous if leaked to Indian authorities and he was afraid that the Australian authorities might regard him as excluded from any possibility of protection as a refugee.  He subsequently understood that because he was not himself a militant and did not engage in any crimes against humanity, he was not excluded from consideration as a refugee.

In the reasons for decision of the RRT this additional evidence was referred to in several parts of the judgment. The most important reference was to be found in the following paragraphs:

“The applicant has had many opportunities over a period of almost five years to outline his claims in full.  He has several times signed statements or otherwise indicated that he has done so.  He has had access to legal advice.  Yet, he has made a claim to high profile involvement with the AISSF and to intimate knowledge of militant activities that may constitute crimes against humanity only after two hearings at the Tribunal, and after many other opportunities to detail his claims.  Documentation forwarded to the applicant after the last hearing, on natural justice grounds, included a statement that ‘the authorities target those people it suspects of being ‘militants’ or who have ‘some established history of terrorist associations’.  The applicant had never previously claimed any knowledge of militancy; nor had he claimed high profile involvement with the AISSF, even though such a profile is not tantamount to having intimate knowledge of militant operations that he claims he was loath to reveal.

In considering all the information before it, and particularly, the considerable time and number of opportunities the applicant had to reveal the profile he now claims to have had with the AISFF, the Tribunal finds that his belated claim to high profile activity with the AISSF and to privileged knowledge of militant operations is not credible.  In view of that finding of credibility the Tribunal has not found it necessary to consider whether the applicant would be excluded from the definition of a refugee by virtue of the provisions of Article 1F of the Convention.”

The applicant says that the Tribunal did not afford substantial justice to him because it did not give him an opportunity to orally address or deal with the additional material in the affidavit of 25 March 1997, in circumstances where the covering letter from Baker & Armstrong specifically sought an opportunity to respond to any questions which the Tribunal might have at a further hearing.

The argument in substance is that the requirement to afford substantial justice is a procedure within the meaning of s 476(1)(a) of the Act. Because the applicant was not given an opportunity to address the concerns which were ultimately raised in the decision of the Tribunal then substantial justice was not afforded. Accordingly, the decision was invalid.

It is evident on a fair reading of the reasons for decision that considerable importance was placed on the “belated nature” of the claim set out in the affidavit of 25 March 1997.  It was seen as casting doubt on the credibility of the applicant which of course was a most significant factor in the outcome.  It was not of course the only matter taken into account on credibility.  In other parts of the judgment the RRT refers to other matters which can be seen as going to his credit.  These matters included assertions about the current situation in India.  It tests his assertions against country information.  It notes contradictions in his evidence with that of his grandfather.  It notes the late mention of association with another body, the ISYF.  It made a positive finding that the applicant’s grandfather had contrived, with the applicant, to give false evidence in support of the applicant’s claim to refugee status.  It refers to inconsistencies and exaggerations and anomalous evidence as regards the willingness of the police to raise false cases against the applicant’s family.  It considered that he was involved in a self-seeking endeavour to establish a claim to refugee status.

However, notwithstanding these other adverse findings as to lack of credibility, the question which must be answered is whether, in order to afford substantial justice, it was necessary or appropriate for the RRT to afford the applicant a further hearing in the course of which the RRT was obliged to express any concerns which it had in relation to the material furnished in the March 1997 affidavit.

The applicant’s submission on this question is based on the Full Federal Court decision in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 in which the majority (Davies and Burchett JJ) decided that the requirement that the RRT must act according to substantial justice and the merits of the case prescribed a procedure required by the Act to be observed and was not to be read down by the express exclusions contained in s 476(2), (3) and (4) of the Act. The requirement to act according to substantial justice and the merits of the case was considered to have a wider operation than simply being a reference to following a fair and just procedure. The approach is formulated by Davies at 625-626 in these terms:

“The Migration Act has substituted for the rules developed by the common law and the rules incorporated in the ADJR Act rules of its own. Section 420 provides that the mechanism of review shall be ‘fair, just, economical, informal and quick’ and shall be directed to arriving at the ‘substantial justice and the merits of the case’. If the procedures of the tribunal have not met that prescription, the decision of the Refugee Review Tribunal may be set aside. It matters not that the breach may also have amounted to a breach of the rules of procedural fairness developed by the common law. The matter is to be determined not by the common law but by the words of the statute. A breach of the statute is not saved by s 476(2).”

Burchett J at 642 found himself in complete agreement with Davies J.  Whitlam J did not.

The decision in Eshetu is at present the subject of an Application for Special Leave to Appeal before the High Court which has not yet been heard.  However, for the purposes of the present matter before me, the controlling principles which I must follow are those set out in the majority judgment in Eshetu.

In Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 5 November 1997) Davies J, with whom Burchett and Whitlam JJ agreed, said at 6:

“As was said in Eshutu, there are procedural elements in the s 420(2)(b) requirement that the Tribunal must act in accordance with substantial justice and merits of the case. The procedure adopted by the Tribunal must be directed to ensuring that a decision on the case can be arrived at in accordance with substantial justice and the merits of the matter. If the Tribunal does not act in such a way as to permit that to be done, it will breach a procedure which the Act prescribes. Section 420(1) specifies in addition that the procedures adopted should be ‘fair, just, economical, informal and quick.’”

Underlying the applicant’s submissions is the assumption that there is an obligation on the RRT member to disclose to an applicant its proposed line of reasoning and to seek the comments of the applicant on that reasoning, after the applicant has been afforded the full opportunity of presenting evidence and making submissions in support. It seems to me that the imposition of such an obligation is not necessary in order to afford substantial justice to the applicant in the present circumstances. While not determinative it is important to note that s 420(1) requires the RRT when carrying out its functions to pursue the objective of providing a mechanism which is fair, just, economical, informal and quick. Obviously the prime considerations are affording a review which is fair and just. The other objectives are not without significance. If, for example, as a general obligation, the RRT was required to expose its reasoning after hearing for further oral submission then the process may be dilatory, unduly formal and uneconomic.

On a hearing such as that before the RRT in the present case, the RRT must give the applicant an opportunity to appear before it and to give evidence.  There is no requirement that the applicant be given an opportunity to make submissions, although I am prepared to accept this is an appropriate implication.  There is no requirement in s 425 that an applicant must be informed of every piece of evidence or every consideration or line of reasoning which the RRT might adopt in assessing his or her credibility. Under s 425(2) the RRT has, in my view, a discretion to allow a person to address it orally about the issues arising in relation to the decision under review.  Of course, the position is different where the RRT obtains information, of which the applicant is unaware, and proposes to use it against the applicant.  In such circumstances it is necessary to inform the applicant of such material and to seek submissions on it: cf Kioa v West (1985) 159 CLR 550 at 587; FAI Insurances Ltd v Winneke (1982) 151 CLR 342; and Cole v Cunningham (1983) 49 ALR 123. There is a need to bring to an applicant’s attention the critical issue or factor on which the administrative decision is likely to turn so that he or she may have an opportunity of dealing with it. Indeed, in an earlier hearing in relation to another aspect of this matter, Marshall J of this Court, set aside a decision of the RRT on an ADJR application on the ground that the applicant was not afforded procedural fairness because material in a DFAT cable of 6 July 1992 to the effect that membership in the AISSF would not attract adverse attention from the authorities, was not put to the applicant. However, in the present case the additional material was advanced by the applicant himself after the hearing.  The gravamen of the complaint is that the applicant was not given an opportunity to argue his credibility, explain his own affidavit, or be questioned by the RRT in relation to that material. It can readily be inferred that the RRT, did not consider it either necessary or desirable to interrogate him on his affidavit.

In my view, in the circumstances of the present case, there was no obligation on the RRT to summon the applicant before it to explain the additional material or to ask questions to clarify matters in the material or to express doubts engendered by the contents of the additional material.  What amounts to substantial justice for a determination in accordance with the merits of the case, will depend in every case on the particular factual circumstances.  In the present case the applicant was given every opportunity to put all his evidence before the RRT at the hearing on 10 January 1997.  Furthermore, when furnishing the additional material, the applicant was well aware that it might be seen to impact on his credibility and therefore explicitly sought a further hearing.  Indeed, the material proffered by the applicant went further than simply foreshadowing an adverse reaction by the RRT because it went on to explain in some detail the reasons why the material was furnished at a late stage.  In view of these circumstances it was not incumbent on the RRT to provide a further hearing or to seek an elaboration of the additional material or an explanation of it.   It could certainly not be said that the applicant was taken by surprise because reference was made to the belated nature of the additional material after having been given every opportunity to fully present his case before the RRT.

The RRT was entitled to take into account and make use of the additional material in such way as it saw fit.

For these reasons I do not accept the submission of the applicant.

A second matter which was raised was that the RRT referred to the DFAT cable of 6 July 1992 and quoted a particular part of that cable.  The Tribunal did not specifically raise with the applicant the particular lines quoted in the decision.

In my view the RRT did not err in law in this respect.  The cable was well known to the applicant by reason of the earlier application before Marshall J.  There was nothing to prevent the applicant taking issue with any part of the cable he thought appropriate.  He did not do so.  There was nothing therefore in the nature of substantial injustice as a result of the use of that information as a consideration in the Tribunal decision.  It is not necessary in the present case in order for the Tribunal to act according to the requirements of substantial justice and the merits of the case, to highlight in advance of writing its decision every part of every document which it may rely upon in giving its decision.  It is clearly sufficient if the material is furnished to the applicant and the applicant has an ample opportunity to deal with such parts of the material as he or she thinks appropriate in the circumstances.

A similar submission is made in respect of a copy of a DFAT cable of 3 January 1996 which was furnished to the applicant on 4 February 1997 under cover of a letter which invited comment on that material and also on further materials, being excerpts of country specific information or views from which the RRT proposed to rely.  No comments were received.  In view of the failure to comment on this material it cannot be said that the RRT failed to act in accordance with substantial justice and the merits of the case.

A further submission is made that the RRT erred in law in giving substantial weight to the DFAT cable of 6 July 1992.  In the reasons, the following paragraphs appear:

“The Australian Department of Foreign Affairs and Trade (DFAT) stated, in cablegram ND84486 of 6 July 1992, that:

‘The AISSF (All India Sikh Students Federation) itself is not a proscibed organisation.  Mere membership or support for the AISSF would not attract any attention form the authorities. The AISSF proper is one voice among many mainstream Sikh political factions, who splinter from day to day.  Last year the AISSF was given permission by the Punjab; administration to hold a unity summit in Amritsar...[The AISSF] is active all over India, just as Sikhs can be found throughout the country.  The AISSF was briefly proscribed in 1984/85.’

On the basis of that information and further information cited below concerning the situation of the Sikhs in India in recent years, the Tribunal finds that the applicant does not face a real chance of persecution for a Convention reason due to his involvement with the AISSF.”

The applicant’s submission is that this material was too remote in time to be given any significant weight and yet it is evident from the paragraph quoted above that the information was used as the basis for a decision the applicant did not face a real chance of persecution for a Convention reason.

This submission really turns on the interpretation of the second paragraph.  In my view, it says no more than that the RRT took into account, as part of the relevant history, the material in the 1992 cable and formed a view based on that and further extensive and more current information set out later in the reasons for decision.  As the High Court cautioned in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272:

“... the reality [is] that the reasons of an administrative decision-maker are meant to inform and not 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.”

Reasons for decision of an administrative tribunal such as the RRT are not to be construed minutely and finely with a view to detecting error but rather regard must be had to the substance of the matter. This approach is confirmed by the provisions of s 420 of the Act itself. Substance not form is controlling.

Although other grounds were raised in the Notice of Appeal the case was conducted before me on the basis of the above submissions.  For the reasons given above I am not satisfied that the applicant has established any permissible grounds of review. Accordingly, I dismiss the application with costs.

I certify that this and the preceding twelve (12) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:            14 November 1997

Counsel for the Applicant:	Mr T A Fernandez
Solicitor for the Applicant:	Nathan Legal Practitioner
Counsel for the Respondent:	Mr R M Downing
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	12 November 1997
Date of Judgment:	14 November 1997