Singh v Minister for Immigration and Multicultural Affairs

[2001] FCA 1114

FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2001] FCA 1114

BALJINDER SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Matter No S 60 of 2001

von DOUSSA J
ADELAIDE
3 AUGUST 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 60 OF 2001

BETWEEN:	BALJINDER SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	von DOUSSA J
DATE OF ORDER:	3 AUGUST 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

1.The application be dismissed.

2.The applicant pay the respondent’s costs.

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	S 60 OF 2001

BETWEEN:	BALJINDER SINGH APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	von DOUSSA J
DATE:	3 AUGUST 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant seeks judicial review of a decision of the Refugee Review Tribunal (the Tribunal) made on 30 March 2001.  The applicant is a citizen of Fiji.  He was born on 26 April 1973.  He arrived in Australia on 23 April 2000.  The applicant is of Indian ethnicity and of the Sikh religion.  He had come to Australia to be present at a family wedding.  Whilst he was in Australia, the May 2000 coup led by Mr Speight occurred. 

2. On 6 June 2000 the applicant lodged an application for a protection visa on the basis that he was a person to whom Australia owed protection obligations under the Refugee Convention as defined in the Migration Act 1958 (Cth) (the Act). On 18 October 2000, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa. That led to an application to the Refugee Review Tribunal to review that decision, an application which was unsuccessful.

3. The application to this Court is made on the basis that there are two grounds for review under s 476 of the Act.  The first ground alleged is that an error of law occurred within the meaning of s 476(1)(e).  The second ground is a no‑evidence ground alleged under s 476(1)(g).  Both these grounds are said to arise by reason of the following passage which occurred in the reasons for decision of the Tribunal. 

   “In relation to the applicant’s Post Traumatic Stress Disorder, the Tribunal finds the fact that no indication of the applicant’s condition was mentioned either in the initial Protection Visa application or in the Tribunal application and the fact that this aspect only came to the surface after the Tribunal decided it would not grant a deferment of the hearing requested on the grounds of needing to obtain more evidence, impugns the applicant’s credibility, especially given that the initial doctor’s letter indicated a commencement of treatment.  The applicant’s answer to the question of why he had not sought medical help until December 2000 was unconvincing as it did not explain why an illness which was, by the applicant’s own account, due to traumatic experiences undergone in 1993, would not have been dealt with earlier either in Fiji or in Australia.”

4. First, it is submitted that an error of law is evident in the above passage as it had the effect of substituting an evidentiary onus of proof test for the well‑founded fear test laid down in the decisions of Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 and Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379.

5. Secondly, it is submitted that the no‑evidence ground arises because there was no evidence for a finding that a post‑traumatic stress disorder as alleged by the applicant was suffered in 1993.  It is said that the Tribunal has assumed that such an assertion was made and has rejected it, then finding by implication that there was no post‑traumatic stress disorder at all suffered by the applicant.

6. In my opinion, there is no substance in either of these submissions.  The passage impugned by the applicant's submissions appears at the outset of that portion of the Reasons for Decision headed “Findings and Reasons”.  Before reaching that point in the reasons, the Tribunal has referred to the applicant's personal background, to relevant legislation and to the Refugee Convention, and has then identified the claims and the evidence before it.  The Tribunal, having turned to its “Findings and Reasons”, prefaced the impugned paragraph by saying:

   “Before considering the claims, the Tribunal wishes to state its concerns on a number of aspects of these claims.”

7. The impugned passage expresses the first of those concerns and is plainly directed to an aspect of the credibility of the applicant.  In my opinion, it is not in any way concerned with the real chance test and is concerned wholly and solely with an observation on the credit of the applicant.  The suggestion that there is some substitution of the real chance test with another test is unfounded.

8. It is submitted that the no‑evidence ground is substantiated by medical evidence before the Tribunal in the form of letters from doctors.  It is submitted that the Tribunal has misread the medical evidence which is to the effect that the applicant indeed suffers a post‑traumatic stress disorder that is the consequence not only of an assault which he says took place in 1993, but also of threats that have occurred thereafter, indicating, as I understand the applicant's argument, that the cause was a progressive one.  Further, it is submitted that the medical reports indicate that the condition is one that only recently became the subject of medical treatment.  The applicant submits that the reports, properly interpreted, indicate that the condition, though perhaps caused in part by events occurring as long ago as 1993, was one that had manifested itself only in more recent times.

9. It is submitted that the Tribunal, through its misunderstanding, has in the impugned passage effectively dismissed the evidence that the applicant suffers a post‑traumatic stress disorder and, to the contrary, has found that he does not suffer one.  It is submitted that in a material and important way this infects the balance of the reasoning of the Tribunal which culminates in a finding that there is no basis for a well‑founded fear of persecution.

10. In my opinion, the various submissions based on the impugned passage from the reasons of the Tribunal reflect a misreading of the reasons and, in particular, a misreading of the last sentence of the paragraph which I repeat:

    “The applicant's answer to the question why he had not sought medical help until December 2000 was unconvincing, as it did not explain why an illness which was, by the applicant's own account, due to traumatic experiences undergone in 1993 would not have been dealt with earlier, either in Fiji or in Australia.”

11. As I read that sentence, the Tribunal’s statement that the applicant’s illness was due to traumatic experiences in 1993 was based not on the medical reports but on assertions that were made by the applicant in giving an account to the Tribunal about his illness and what had brought it on.  I acknowledge, however, that there may be room to question that interpretation of the last sentence, because there is no transcript before the Court of the proceedings before the Tribunal.  If the decision of the Tribunal was based upon the impugned passage or if a finding as to the credibility of the applicant underlay the decision of the Tribunal, I would have adjourned the matter and called for a transcript of the hearing before the Tribunal.  In my opinion, however, the impugned passage plays no part in the reasoning process on which the decision of the Tribunal rests, and for that reason the arguments that have been put to the Court are beside the point.

12. I consider it is plain from a reading of the Tribunal’s reasons that the Tribunal has not rejected the essential aspects of the applicant's claims.  There is certainly no express finding that the evidence of his post‑traumatic stress disorder has been rejected and I infer that the Tribunal has not rejected it.  More importantly, however, the Tribunal in my view has by implication accepted his evidence that he suffers, subjectively, a fear of persecution if he were to return to Fiji.  That follows from the fact that the Tribunal has said that it accepts his evidence about the concerns of the family and about recent experiences of his family in Fiji.

13. It will be remembered that the applicant was not in Fiji in May 2000 and, accordingly, his case was based on the events which concerned other members of his family at that time.  It is against that background that the following passages from the reasons of the Tribunal must be understood.  The Tribunal said:

    “The applicant's claims relate to what has allegedly occurred to him and his family in the past.  The Tribunal is charged with deciding whether the applicant has a real chance of being persecuted for a Convention reason in the foreseeable future.  It is clear that during the coup of May 2000, a lot of Indo‑Fijians suffered harm at the hands of the Fijians.  The Tribunal accepts that the applicant's family had their house ransacked and their uncle was wounded.  The applicant himself was not there during this time of social unrest.  His parents have returned to Fiji and there was no indication given to the Tribunal that they are being subjected to any harm or harm which could be construed as a Convention persecution.  The situation in Fiji has stabilised. 

    In terms of the applicant's involvement with the Labor Party, the Tribunal accepts that he may have been participating in some minor capacity during elections, but there is no evidence before the Tribunal to indicate that even prominent figures in the Labor Party met with any harm, either before or since the attempted coup.”

14. The Tribunal then set out country information that was before it in the form of an article from the Australian Financial Review of 29 - 30 July 2000, a Department of Foreign Affairs and Trade report dated 20 September 2000, a report of 8 December 2000 available on a Fijian web site and, finally, an Australian and New Zealand Reuters News Service report dated 15 March 2001.  Based on that information, the Tribunal then expressed its conclusions in the following terms:

    “On the evidence available, the Tribunal accepts that from time to time Indo‑Fijians have been subjected to harassment and that this flared into some acts of violence during the attempted coup.  The situation has, however, been brought under control and the whole population can rely on the protection of the authorities. 

    In light of the above discussion, the Tribunal finds that there is not a real chance that the applicant will be persecuted for his ethnicity or his political opinion should he return to Fiji.  Accordingly, the Tribunal finds that the applicant does not have a well‑founded fear of persecution for any Convention reason, now or in the foreseeable future, should he return to Fiji.”

15. In my opinion, it is clear that the Tribunal, in saying that it refers to "the above discussion", is referring to the discussion in the country information, and that the finding which it has reached is a finding that there is no objective basis for any fear that the applicant holds.  I do not read those passages as rejecting the applicant’s claim that he has a subjective belief of fear.

16. In my opinion, the impugned passage was an aside about the applicant's credit which has not, in the end, translated in any way into the reasons for the decision, which were that, having regard to the stabilised position in Fiji that pertained at the date of the decision of the Tribunal, no objective basis existed for any fear that the applicant held.

17. In my opinion, no ground for review has been made out and the application for review is dismissed.

18. There will be an order that the applicant pay the respondent's costs.

    I certify that the preceding eighteen
    numbered paragraphs are a true copy
    of the Reasons for Judgment herein
    of the Honourable Justice von Doussa.

    Associate:

    Dated:

    Counsel for the Applicant:  Mr M Clisby

    Solicitor for the Applicant:  Mark Clisby

    Counsel for the Respondent:                Ms S Maharaj with Ms K Southcott

    Solicitors for the Respondent:               Sparke Helmore

    Date of Hearing:  3 August 2001

    Date of Judgment:  3 August 2001