FEDERAL COURT OF AUSTRALIA

MIGRATION - appeal from Refugee Review Tribunal (“RRT”) decision refusing refugee status – whether RRT failed to properly consider the immigration policy at time applicant arrived in Australia – whether RRT failed to take into account relevant considerations and did not act according to substantial justice and merits of the case – whether RRT exercised power not authorised by the Migration Act and Regulations – whether RRT exercised power in an improper way in contravention of the Migration Act – whether decision involved and incorrect application of law to facts as found by RRT – whether there was evidence or other material to justify the making of the decision – whether RRT properly considered applicant’s specific situation – human rights situation in country of origin underwent radical change – applicant no longer has profile of interest to authorities

Migration Act 1958 (Cth), ss 420, 476

Migration Regulations (Cth)

Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397, cited

Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259, cited

HARMEL SINGH v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 151 of 1998

O’CONNOR J

SYDNEY

28 SEPTEMBER 1998

THE COURT ORDERS THAT:

The application be dismissed with costs.

NOTE:             SETTLEMENT AND ENTRY OF ORDERS IS DEALT WITH IN ORDER 36 OF THE FEDERAL COURT RULES.

REASONS FOR JUDGMENT

This is an application for the review of a decision of a member of the Refugee Review Tribunal (“the Tribunal”) dated 4 February 1998 affirming the decision of the delegate of the Minister for Immigration and Multicultural Affairs not to grant a protection visa.

The grounds (as stated in the amended application) are:

1.         That the Tribunal did not take into proper consideration the immigration policy at the time the applicant arrived in Australia having regard to the lack of factual evidence.

2.         That the Tribunal erred in law by failing to take into account relevant considerations and did not act according to substantial justice and the merits of the case.

3.         That the Tribunal exercised a power not authorised by the Migration Act 1958 (Cth) (“the Act”) and the Migration Regulations (“the Regulations”) in contravention of s 476(1)(c) of the Act.

4.         That the Tribunal exercised the power conferred by the Act and the Regulations in an improper way in contravention of s 476(1)(d) of the Act.

5.         That the decision involved and error of law, being an error involving an incorrect application of the law to the facts as found by the person who made the decision in contravention of s 476(1)(e) of the Act.

6.         That there was no evidence or other material to justify the making of the decision in contravention of s 476(1)(g) of the Act.

7.         That the Tribunal did not take into proper consideration the merit of the case as per  the applicant’s specific situation.

8.         That the decision is manifestly unreasonable.

LEGISLATIVE CONTEXT

The relevant provisions of the Act in respect of this application are as follows:

“Refugee Review Tribunal’s way of operating

420.  (1)  The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick.

(2)  The Tribunal, in reviewing a decision:

(a)       is not bound by technicalities, legal forms or rules of evidence; and

(b)       must act according to substantial justice and the merits of the case.

...

Application for review

476.  (1)  Subject to subsection (2), application may be made for review by the Federal Court of a judicially-reviewable decision on any one or more of the following grounds:

(a)       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;

...

(c)        that the decision was not authorised by this Act or the regulations;

(d)       that the decision was an improper exercise of the power conferred by this Act or the regulations;

(e)        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;

…

(g)       that there was no evidence or other material to justify the making of the decision.

  (2)  The following are not grounds upon which an application may be made under subsection (1):

(a)       that a breach of the rules of natural justice occurred in connection with the making of the decision;

(b)       that the decision involved an exercise of power that is so unreasonable that no reasonable person could have so exercised the power.

  (3)  The reference in paragraph (1)(d) to an improper exercise of a power is to be construed as being a reference to:

(a)       an exercise of a power for a purpose other than a purpose for which the power is conferred; and

(b)       an exercise of a personal discretionary power at the direction or behest of another person; and

(c)       an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;

but not as including a reference to:

(d)       taking an irrelevant consideration into account in the exercise of a power; or

(e)               failing to take a relevant consideration into account in the exercise of power; or

(f)        an exercise of a discretionary power in bad faith; or

(g)       any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c).

  (4)  The ground specified in paragraph (1)(g) is not to be taken to have been made out  unless:

(a)               the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or

(b)               the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”

A criterion for the grant of a protection visa is that Australia has protection obligations in relation to the applicant because he is a refugee in accordance with Article 1A(2) of the Convention, as amended by the Protocol, that is, he is a 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

The applicant seeks an order that the decision under review be set aside and remitted back to the Refugee Review Tribunal for reconsideration according to law.

FACTUAL BACKGROUND

The applicant is a national of India.  He is a Sikh born in the Punjab in 1957.

The applicant’s claims are based on his membership of, and activities with the Simarnjit Singh Mann faction of the Akali Dal (known since 1 May 1994 as the Shiromani Akali Dal) which he joined in 1990.  The applicant claims he was a committed and active member who gave speeches, attended political rallies and encouraged others to join.  He never engaged in any terrorist or violent activities, however he was well known in his local area.

From 1991 to 1995 the applicant claims he was involved in several incidents as follows:

.           In 1991, after attending a meeting of the Akali Dal party where he was one of four of speakers at that meeting he was arrested by the police, detained, questioned and at times beaten before being released after protests by his father ;

.           In 1992, he attended a large party meeting which was broken up by the police.  The applicant was arrested, questioned, given beatings and electric shocks and released.

.           In 1995 the applicant was due to be the main speaker at a party meeting.  The police came to the house where he was staying and arrested him.  He was beaten and mistreated.  He was released after his father paid a bribe.  However the police returned three days later to arrest the applicant but he was not there.  The applicant’s father was shot and the applicant believes his father was shot by mistake for himself.

The applicant then went into hiding, moving from place to place, changing his appearance and only working casually on farms.  He obtained a passport and visa through an agent and came to Australia in March 1996.  The applicant claims he will be killed in a fake encounter if he returns to India.  The applicant also referred to the general mistreatment of Sikhs in India, particularly in the Punjab.

The applicant applied to the Department of Immigration and Multicultural Affairs for a protection visa on 24 April 1996.  The delegate’s decision refusing the application was made on 27 February 1997.  The applicant applied for a review of that decision by the Tribunal on 18 March 1997.  The application for review was rejected by the Tribunal and his application for protection visa refused on 4 February 1998.

TRIBUNAL’S DECISION

The Tribunal found the applicant to be a “reasonably credible” witness and accepted the applicant’s account of his experiences in India as truthful.

The Tribunal also accepted that the applicant would have been facing a “real chance” of persecution in 1995.  He had experienced persecution on several occasions from 1991 onwards.  Moreover, the Tribunal was not prepared to conclude that merely because the applicant was non-violent and not a leader of his group, that he would have been safe from persecution because it was reasonable to conclude that in 1995 in India, such incidents might recur.

The Tribunal found however that since 1995 there had been a radical change in the human rights situation in the Punjab.  The Tribunal referred, in coming to this conclusion, to independent country information and found that a Sikh, such as the applicant, who never practised terrorism or violence but merely advocated, in a peaceful manner, the creation of an independent Sikh homeland, would not face a real chance of persecution any longer.  The applicant, who disputed this at the hearing, could not provide independent evidence of his assertion that large-scale atrocities against Sikhs were continuing in the Punjab.

SUBMISSIONS OF THE PARTIES

At the hearing, in addition to filing with leave the amended application, the applicant sought to tender an affidavit with a number of annexures.  The first 7 annexures were the decision of the RRT and a number of Independent (general Country information) Reports dealing with the Punjab and India generally. This affidavit was admitted, by consent, for the purpose of the submission made by the applicant that the Tribunal had misinterpreted this material and could not have come to a conclusion based on it that the situation in the Punjab had “changed radically” since 1995.   In so doing, relying on the principle enunciated in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 406-7, the applicant submitted that the Tribunal failed in its procedural obligation to act rationally and reasonably when it made the finding that there was, objectively, no real chance of this applicant being persecuted if he were to return to the Punjab.   The respondent submits that this case is not one where there is no probative evidence on which to base the conclusions reached.  

In Paragraph 3 of the applicant’s claim, the applicant makes a series of factual assertions about matters which he claims point to an “increased risk” to the applicant if he returns to India.  These are relied on in addition to the assertion that “general country information” has not been properly regarded.   The respondent submits that these assertions or particulars are no more than a challenge to findings of fact made by the Tribunal or suggesting findings which could have been, or should have been, made.  As such it is an attempt to have merits review because, unless there is an error in the way the Tribunal arrived at its factual conclusions, such findings are unreviewable.

As stated above the applicant relied, in the amended application, on eight grounds for its application.  At the hearing, only the matters raised above were canvassed by the applicant. Both parties provided the Court with written submissions referring to the grounds of the application.  It is, therefore, convenient to summarise their substance even if it results in some repetition.

Ground 1

“The Respondent did not take into proper consideration the immigration policy at the time the Applicant arrived in Australia having regards to the lack of factual evidence.”

The respondent interpreted this ground as referring to s 476(1)(a) and s 420 of the Act and submitted that:

“No evidence has been pointed to, or even any particular provided, which suggests that the RRT’s determination of the applicant’s claim did not take place according to both the requirements of sections 476(1)(a) and 420 of the Act.

It complied with all procedures specifically required of it by the Act, and exercised its discretions as to the conduct of the application in a manner that afforded the applicant every “procedural fairness”.

For example the RRT,

Considered the applicant’s claims “on the papers”, and offered him the opportunity of attending a hearing when it was unable to make a decision favourable to him [section 424 and 425 of the Act].

In conducting its review, the RRT can be demonstrated to have:

            Exercised its discretion to allow the applicant to be assisted by an interpreter at the RRT hearing, which it provided [section 427(7)].

                        Permitted the applicant to give evidence at a hearing on 28 January 1998 [section 425(1)(a)].

                        Obtained relevant further information and gave the applicant the opportunity to respond to it at the hearing.

                        Considered all material submitted by the applicant along with the information before it under section 418 of the Act.

                        Gave the applicant “the benefit of the doubt” in relation to inconsistencies in his evidence, taking into account his assertion that he had difficulty recalling things, and the principle that minor inconsistencies should not be overemphasised.”

The applicant said the Tribunal:

“(a)     failed to properly investigate the “independent evidence”

  (b)     failed to utilise the Case Management Action Requests or properly investigate the matters

  (c)      failed to provide the applicant with an opportunity to respond to the adverse view formed before the hearing.”.

which all amounted to procedural error.   Details of these failures were not provided.  The submissions suggest that other material could have been accessed by the Tribunal but it was not specified.  Nor was it put as highly as a duty to enquire in the circumstances of the case.

Ground 2

“The Respondent erred in law by failing to take into account relevant considerations and did not act according to substantial justice and the merits of the case.”

This also appears, the respondent submits, to be based on the obligation imposed by s 420 of the Act and it repeats its submissions in relation to Ground 1.

Grounds 3 and 4

“The Respondent exercised a power not authorised by the Migration Act and the regulations in contravention of section 476(1)(c) of the Migration Act 1958.

The Respondent exercised the power conferred by the Migration Act and the regulations in an improper way in contravention of section 476(1)(d) of the Migration Act 1958.”

The respondent submits that these grounds are baseless.  The applicant made no reference to them in submissions.

Ground 5

“The decision involved an error of law, being an error involving an incorrect application of the law to the facts as found by the person who made the decision in contravention of section 476(1)(e) of the Migration Act 1958.”

The respondent submits that the Tribunal applied the well established principle that the subjective fear of persecution must be objectively well founded to come to the conclusion that the applicant did not possess a political profile which would expose him, in 1998, to a risk of persecution in India.  The applicant submits that such a conclusion based on the material before the Tribunal is irrational and amounts to an error of law.

Ground 6

“There was no evidence or other material to justify the making of the decision in contravention of section 476(1)(g) of the Migration Act 1958.”

The respondent submits that this ground is unsustainable because the qualifications to s 476(1)(g) in s 476(4) are not satisfied.  The applicant made no submission directly referring to this ground.

Grounds 7 and 8

“The Respondent did not take into proper consideration the merit of the case as per the Applicant’s specific situation.

The decision is manifestly unreasonable.”

The respondent submits that Ground 7 is either a rearticulation of Ground 2 or attempted merits review and that Ground 8 is excluded by the operation of s 476(2)(b).   The applicant made no submissions directly referring to this Ground.

DECISION

Referring to the principles in Minister for Immigration and Ethnic Affairs v Wu (1996) 185 CLR 259 the applicant accepts that the Tribunal’s reasons for decision must be given a beneficial reading.   The gist of the applicant’s case for judicial review, in spite of the eight grounds put in the application, is contained in the following passage from the reasons for decision headed “Prospect of Persecution”.

“Although the applicant states that he was never involved in any terrorism or violence, active propaganda in favour of an independent Khalistan could, in the view of the Tribunal, account for the adverse attention of the authorities to the applicant.  The Tribunal would not conclude that merely because the applicant was non-violent and not a leader of his group, he would be safe from persecution.  It should, I think, be accepted that the applicant was facing a real chance of persecution in 1995.    He had experienced persecution on several occasions beginning in 1991.  It was reasonable to expect, in 1995, that such incidents might recur.

However, since 1995 there has been a radical change in the situation of human rights in the Punjab.  In the view of the Tribunal, this is sufficient that one may now say that a Sikh such as the applicant, who never practised terrorism or violence but merely advocated in a peaceful manner, the creation of an independent Sikh homeland, would not face a real chance of persecution any longer.”

In the remainder of the decision the decisionmaker discusses in detail the information he took into account to reach that conclusion.

He refers to cables from Australian Authorities, US State Department reports, Amnesty International reports and other independent bodies and concludes that the few reports which have been made of mistreatment of Sikhs since 1995 concern “wanted militants with profiles entirely different from that of the present applicant”.

He refers to the fact, that having put this before the applicant at the hearing, it was disputed.  This disputation was rejected because the applicant could not independently confirm assertions which ran counter to the evidence before the Tribunal.

The applicant, in fact, at the hearing, did not deny that the situation for Sikhs like the applicant has improved since 1995.   What was submitted was that this change was not a “radical” change and that a report which states that there is “increased awareness of human rights issues” in the Punjab is not evidence of change, in particular, radical change.

I read and evaluated the materials exhibited to the affidavit relied on by the applicant to demonstrate that the conclusions drawn, by the decisionmaker, could not be made and were unreasonable.  In my view, he was able to come to the conclusions he did on the material available to him.   These materials give details of police activity and human rights abuses in India.  However, they support the conclusion of the decisionmaker that people with a profile like the applicant are no longer of interest to these authorities in 1998.

None of the assertions of “procedural error” were seriously pressed by the applicant.  The respondent’s submissions referred to above correctly summarise the procedures followed.   What the applicant wished to do before the Court, was re-agitate the arguments and submissions which were not accepted by the Tribunal as to the merits of his case .

None of the eight grounds of review are made out.   The Tribunal was entitled to come to the conclusion it did on the material before it and in so doing made no legal error.

The application is dismissed with costs.

Associate:

Dated:              28 September 1998