CATCHWORDS

IMMIGRATION LAW - Refusal of refugee status - Judicial review - Non-observance of procedures required by the Act - Whether power to require medical examination a procedure - Whether Tribunal required to consider necessity of medical examination - Error of law - Whether Tribunal incorrectly interpreted meaning of “persecution”

Migration Act 1958 ss 427, 476

Dharam Raj v Minister for Immigration & Ethnic Affairs and Another (unreported, Federal Court of Australia, Davies J, 18 July 1996)

KULWANT SINGH v MINISTER FOR IMMIGRATION

& ETHNIC AFFAIRS and Another

VG 193 of 1995

Before:            NORTH J

Place:              MELBOURNE

Date:               21 NOVEMBER 1996

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VG 193 of 1995

B E T W E E N :

KULWANT SINGH

Applicant

AND

THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

First Respondent

AND

REFUGEE REVIEW TRIBUNAL

Second Respondent

MINUTES OF ORDER

BEFORE:      North J

PLACE:         Melbourne

DATE:           21 November 1996

THE COURT ORDERS THAT:

The application is dismissed with costs.               

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VG 193 of 1995

B E T W E E N :

KULWANT SINGH

Applicant

AND

THE MINISTER FOR IMMIGRATION & ETHNIC AFFAIRS

First Respondent

AND

REFUGEE REVIEW TRIBUNAL

Second Respondent

BEFORE:      North J

PLACE:         Melbourne

DATE:           21 November 1996

REASONS FOR JUDGMENT

        This is a review of a decision of the Refugee Review Tribunal, the second respondent, which affirmed a decision of the delegate of the Minister for Immigration & Ethnic Affairs, the first respondent, to refuse the grant of a protection visa to the applicant.

        The applicant, Mr Singh, is a citizen of India, aged 49, who entered Australia on 28 October 1989 as a ship’s deserter.

        On 30 November 1989, Mr Singh applied for refugee status to the Department of Immigration, Local Government & Ethnic Affairs (as it was then named). On 5 May 1994, the delegate of the Minister rejected his application. Mr Singh then sought a review by the Tribunal which, on 10 March 1995, determined to affirm that decision.

        By s 39 of the Migration Reform Act 1992, the decision of the delegate had effect as a refusal to grant a protection visa. A criterion for the grant of a protection visa is prescribed by s 36(2) of the Migration Act 1958 (the Act), as follows:

        “.... that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.”

The Refugees Convention is the Convention relating to the Status of Refugees adopted at Geneva on 28 July 1951 and the Refugees Protocol is the Protocol relating to the Status of Refugees adopted at New York on 31 January 1967 (s 5 of the Act). Under the Convention and Protocol, Australia has protection obligations to refugees as defined. Article 1A(2) of the Convention as amended by the Protocol defines a refugee as a person who:

        “owing to well-founded fear of being persecuted for reasons of race, 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 Tribunal determined that the applicant was not a refugee. On 12 April 1995, Mr Singh applied to the Court for a review of the decision of the Tribunal.

THE APPLICANT’S CASE BEFORE THE TRIBUNAL

        The applicant’s case before the Tribunal can be summarised as follows. He is a Sikh from Chakkalan in Jallandhar District in the State of Punjab. He served in the Indian Navy from 1966 to 1983 and reached the rank of Petty Officer. He then joined the merchant navy. He was detained twice in 1985 and once in 1987 on his return to India through the port of Bombay because the authorities confused him with a Sikh extremist of the same name. He was interrogated for 5-6 hours each time. He moved to Bombay after the authorities made enquiries as to his whereabouts in his home town, but he was beaten up by Hindus in 1987. He was also harassed by Hindus on board ship while working. He bore scars of severe wounds on both legs as a result of torture by fanatical Hindus in 1987 or 1988. He claimed discrimination in the Navy because he was a Sikh. After 15 years’ service, his contract was renewed for two years rather than the usual period of five years, and his service pension was stopped in 1990.

THE DECISION OF THE TRIBUNAL

        The Tribunal found Mr Singh had a subjective fear of persecution. It accepted Mr Singh as a credible witness and accepted his claims of mistreatment. It stated the remaining question as follows:

        “To satisfy the Convention definition of a refugee, this fear must be well-founded in the sense that there must be a ‘real chance’ of
persecution occurring for a Convention reason. The Applicant must demonstrate a present or prospective risk of persecution, irrespective of the extent or nature of mistreatment, which may have amounted to persecution, that he has suffered in the past.”

        After reviewing evidence of the position of Sikhs in India at length, the Tribunal held that there had been a dramatic improvement in the security situation in Punjab and, consequently:

        “.... there is substantially less than a real chance of the ordinary Sikh with no continuing involvement of any significance in separatist activities attracting the kind of detention and mistreatment which the Applicant has experienced in the past.”

The Tribunal found that Mr Singh had not suffered persecution until retirement from the Navy in 1983 because he had been promoted through the ranks and received a number of military commendations. The Tribunal then said:

        “I accept that the Applicant may have come to the attention of the authorities on a number of occasions when re-entering India because of his service background and confusion over his identity. Nevertheless, the Applicant on each occasion was able to convince the authorities of his identity and was released with no further action being taken. I find no evidence to show that these events constitute persecution in terms of the Convention nor that there is a real chance of the Applicant suffering persecution for this reason on return.

        .....

        The Applicant has evidently experienced severe injuries to his legs at some time which have left considerable scarring. At the Tribunal hearing, he was unable to provide detailed information as to how the injuries were incurred, stating initially that he was tortured by fanatic Hindus because he had been identified as a Sikh by his turban, and later claiming that they may have been government agents although they were dressed in civilian clothes. He concluded that he was unable to explain exactly how the injuries came about.
On this evidence, which suggests that the Applicant was the unfortunate victim of communal tensions at the time, I am unable to find that a real chance exists that such an event may recur on his return.”

This passage was the subject of specific argument which I will address under the heading “Section 476(1)(e) - Error of Law” later in these reasons.

        The Tribunal also found that stopping payment of the pension did not amount to persecution, because the authorities had indicated that payment would be resumed if certain “charges” were paid. This was evidence of corruption but not persecution. Furthermore, it was open to Mr Singh to live in India outside the Punjab. The Tribunal concluded:

        “Accordingly, in terms of the test laid down by the High Court in Chan, I find that there is less than a real chance that the Applicant would be persecuted because of his religion or imputed political opinion upon return at this time or within the reasonably foreseeable future.”

Mr Singh relied upon two grounds of review before the Court. I will deal with each in turn.

SECTION 476(1)(a) - NON-OBSERVANCE OF PROCEDURES

        Section 476(1)(a) of the Act provides for a right of review on the ground:

        “that procedures that were required by this Act or the regulations to be observed in connection with the making of the decision were not observed”.

Mr Niall, who appeared as counsel for Mr Singh, contended that the procedure relevant to this case was to be found in s 427(1)(d) of the Act, which provides that the Tribunal may:

        “require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination”.

He contended that the section required the Tribunal to consider whether to have the Secretary to the Department arrange for a psychological or psychiatric examination of Mr Singh. As the Tribunal had not considered the question, it had failed to observe a procedure required by the Act.

        The alleged requirement to consider the issue is not expressly stated. The contention is that it is implicit in the section. I doubt that s 476(1)(a) relates to matters which are not expressly stated in the Act. Examples of requirements which are expressly stated are the requirement that the Tribunal give the applicant an opportunity to appear and give evidence (s 425(1)(a)), the requirement that the Tribunal notify the applicant of an entitlement to appear and give evidence before the Tribunal (s 426(1)(a)), and  the requirement that the Tribunal give written reasons (s 430). In my view, there is no implicit requirement in s 427(1)(d) that the Tribunal consider whether to have the Secretary arrange a medical examination. The section is permissive. It gives the Tribunal a power. The Act does not require that the power be exercised, and it follows that it does not require the Tribunal to consider whether it should be exercised. Thus, although a failure to consider whether to exercise the power may be unwise in certain circumstances, it is not a failure to observe a procedure required to be observed by the Act.

        One difficulty with the notion of an implicit requirement is the problem of identifying the scope of the alleged requirement. Parliament cannot have intended that the Tribunal must consider exercising a power in circumstances where it would be totally irrelevant to the particular case before the Tribunal. For instance, in a case involving no medical question, there could be no requirement that the Tribunal consider whether to use the power to have a medical examination arranged. There would be no review available under s 476(1)(a) if the Tribunal failed to consider having the Secretary arrange a medical examination in such a case. Thus, the alleged implicit requirement to consider the use of the power must be limited to cases which raise an issue to which a medical examination would be relevant. See Dharam Raj v Minister for Immigration & Ethnic Affairs and Another (unreported, Federal Court of Australia, Davies J, 18 July 1996, at 4). Even if, contrary to my view, there was an implicit requirement that the Tribunal consider whether to exercise the power under s 427(1)(d), the present case did not raise an issue to which a medical examination would be relevant.

        Mr Niall referred to the following exchange between the Tribunal and Mr Singh as giving rise to the Tribunal’s obligation to consider the need for a medical examination:

        “MR ENDREY:   And how long did you spend in Bombay again before you found work once more?

        THE INTERPRETER:  I didn’t stay in Bombay that time I went back to Punjab. In Punjab the situation was not good and I was tortured at that time in Punjab. Sorry, I was tortured in Bombay.

        MR ENDREY:  What was the basis of the torture? What was the reason for it?

        THE INTERPRETER:  I was wearing a turban and Hindus there didn’t like Sikhs at that time

        MR ENDREY:  What did they actually do .... (indistinct) ....

        THE INTERPRETER:  If I was like this without a turban nobody take any notice and whenever I had a turban then I was in trouble.

        MR ENDREY:  So were you attacked by some Hindus at that time?

        THE INTERPRETER:  The .... (indistinct) .... Hindus they tortured me and I - both sides like this.

        MR ENDREY:  Where these related to the authorities in any way or who were these Hindus?

        THE INTERPRETER:  The Immigration Department, they called me in. They said we have to investigate and they checked me thoroughly and after that they didn’t listen anything. Just they did it.

        MR ENDREY:  I am sorry, do you mean the Immigration Department here?

        THE WITNESS:  Yes, I don’t know but I .... (indistinct) .... they are in English and Customs, may be police, civil rights .... (indistinct) ....

        MR ENDREY:  But not Immigration Department - in India there is not one.

        THE INTERPRETER:  No, I don’t know which department it was as they were .... (indistinct) ....  Also when Rajiv Gandhi came into power he .... (indistinct) .... against these things - can’t explain.

        MR ENDREY:  Was this the only incident of its kind or were there other incidents involving Hindus in Bombay?

        THE INTERPRETER:  It happened in 1987 again when - and 88 when I was there trying to leave the country it happened again.

        MR ENDREY:  What happened exactly?

        THE INTERPRETER:  I can’t explain exactly.

        MR ENDREY:  Were these incidents which occurred as you were returning to the country from your overseas travels?

        THE INTERPRETER:  Yes.

        MR ENDREY:  Do you want to have a glass of water, Mr Singh? Would you like to have a break for a few minutes? We can adjourn for 10 minutes, if you like and then come back.

        THE INTERPRETER:  Does .... (indistinct) .... want a cup of tea now?

        MR ENDREY:  Perhaps we will adjourn for 10 minutes, then you can have a rest outside. Would you like to do that?

        THE INTERPRETER:  Yes, all right. It’s all right.”

        Mr Niall contended that the answer “I can’t explain exactly” indicated that Mr Singh was unable to recall the circumstances of the torture, and that the answer should have caused the Tribunal to consider whether it should have the Secretary arrange a psychological or psychiatric examination in order to draw out the circumstances of the torture of Mr Singh. I do not accept this argument. Mr Singh was represented at the hearing by a migration agent. Neither he nor the agent requested that a psychological or psychiatric examination be arranged. Further, Mr Singh gave other evidence concerning the circumstances of the torture to which he had been subjected. The single answer relied upon by Mr Niall must be seen in the context of all the evidence given by Mr Singh on this issue. At an initial interview with an officer of the Department, Mr Singh spoke about his torture and he gave evidence at the hearing before the Tribunal both before and after the answer referred to. In that evidence, Mr Singh told of the year and the place and the participants in the torture and described other circumstances relating to
the events. I was also told that Mr Singh broke down during the hearing before the Tribunal at the time he gave the answer relied upon. This seems to suggest that Mr Singh may have taken the question to be asking about the specific nature of the physical attacks which constituted the torture, and that recall of such detail was terribly upsetting to him. Thus, it is likely that the answer expressed a desire to avoid going into the specific detail of his mistreatment. In all these circumstances, there was no reason for the Tribunal to believe that a psychological or psychiatric examination would be relevant to the case. Mr Singh had shown himself  to be quite capable of recalling the general circumstances of the torture. Thus, even if there was an implicit requirement that the Tribunal consider the use of the power to have the Secretary arrange a medical examination, the circumstances in which such a requirement would arise did not exist in this case.

        Mr Niall also argued that the Act required the Tribunal to have the Secretary arrange for a medical examination if the Tribunal formed the view that such a medical examination was necessary in respect of the review. That is to say, the Tribunal had no discretion to decline to have the Secretary arrange an examination where the Tribunal had formed a view that such examination was necessary for the purposes of the review. I doubt that this step in the argument is correct. However, the argument then proceeded that the Tribunal, in the present case, could not have avoided forming the view that a psychological or psychiatric examination was necessary and, consequently, in the present case the Act required the Tribunal to have the Secretary arrange for such an examination. For the reasons expressed in the previous paragraph, I do not agree that the Tribunal was bound on the facts to conclude that a medical examination was necessary in this case.

SECTION 476(1)(e) - ERROR OF LAW

        Section 476(1)(e) provides for a right of review on the ground:

        “that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found by the person who made the decision, whether or not the error appears on the record of the decision”.

It was argued that the Tribunal must have incorrectly interpreted the meaning of “persecution” because it held, in the first paragraph of the passage from the decision referred to earlier in these reasons, that there was no persecution arising from the detention of Mr Singh by the authorities. It was submitted that Mr Singh was tortured by the authorities on some of these occasions, and that the torture must have amounted to persecution.

        This is, however, too narrow a reading of the decision of the Tribunal. The issue of torture was dealt with separately in the second paragraph of the passage from the decision referred to earlier in these reasons. The Tribunal said that it “was unable to find that a real chance exists that such an event may recur on his return”. It may be that implicit in this conclusion is a finding that the torture of Mr Singh had amounted to persecution. However, it was unnecessary for the Tribunal to determine the question of whether the torture amounted to persecution in the light of its view about the lack of real chance of recurrence. Although, in making its assessment in this case, the Tribunal considered evidence of past acts of persecution, it was not required to determine that those acts constituted persecution and, even if it had done so, that
determination would not have been determinative of the applicant’s refugee status. Thus, in my view, the decision of the Tribunal does not reveal an error of law in the interpretation of the meaning of “persecution”.

CONCLUSION

        For the reasons expressed, the application is dismissed with costs.

I certify that this and the preceding

eleven (11) pages are a true copy of the reasons

for judgment of his Honour Justice North.

Associate:

Dated:             21 November 1996

APPEARANCES

Counsel appearing for the applicant:               R. Niall

Solicitors for the applicant:                             Baker & Armstrong

Counsel appearing for the respondent:           C. Gunst

Solicitors for the respondent:                         Australian Government Solicitor

Date of hearing:                                             14 November 1996

Date of judgment:                                          21 November 1996