FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [1999] FCA 1126

MIGRATION - refugees - protection visa - requirements to be complied with by the Refugee Review Tribunal under s 430 the Migration Act 1958 (Cth) - discretionary considerations under s 481 the Migration Act 1958 (Cth)

Migration Act 1958 (Cth), ss 430, 476, 481

Administrative Decisions (Judicial Review) Act 1977 (Cth), s 16

Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24, considered

Logenthiran v Minister for Immigration and Multicultural Affairs (Full Court, Federal Court of Australia, unreported, 21 December 1998), considered

Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165, considered

Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, considered

Sellamuthu v Minister for Immigration and Multicultural Affairs (Full Court, Federal Court of Australia, unreported, 19 March 1999), considered

Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811, not followed

Collins v Minister for Immigration (1981) 58 FLR 407, referred to

Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 59 ALR 51, considered

Styles v Department of Foreign Affairs (1988) 84 ALR 408, considered

Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225, considered

Islam v Secretary of State for the Home Department [1999] 2 WLR 1015, considered

BALJIT KAUR SINGH & ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 202 OF 1999

DRUMMOND J

17 AUGUST 1999

SYDNEY

ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.                  The decision of the Refugee Review Tribunal affirming the decision of the delegate of the Minister not to grant protection visas be set aside.

2.                  The matter be referred back to the Refugee Review Tribunal to consider whether the visas sought should be granted.

3.                  Further consideration of the matter by the Refugee Review Tribunal directed by Order 2 be limited to the applicants’ claim for protection visas based on their claim that they are refugees by reason of their having a well-founded fear of persecution for the reason of their being Sikhs.

4.                  The respondent pay the applicants’ costs of and incidental to the appeal.

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

ON APPEAL FROM THE REFUGEE REVIEW TRIBUNAL

REASONS FOR JUDGMENT

1                     This is an application under s 476 the Migration Act 1958 (Cth) for review of the decision of the Refugee Review Tribunal of 10 February 1999 that affirmed the decision of the delegate of the respondent not to grant the application made on 16 November 1993 by the applicant for a protection visa, which included also her husband and three daughters.  All are citizens of India who arrived in Australia on 29 September 1993.  They are Sikhs from the State of Punjab.  They claimed refugee status on 16 November 1993.  It is that claim which has given rise to the application before me.

2                     A Tribunal, differently constituted from that which gave the decision now sought to be reviewed, rejected the applicants’ claim on 12 February 1998.  That decision was, however, set aside by consent and the application remitted to the Tribunal for re-determination.  The second Tribunal, in an extremely detailed decision, rejected the claims of Mr and Mrs Singh, that each was a refugee.  Because no specific Convention claims were made by or on behalf of the three children, the Tribunal rejected their claims for protection visas on the basis that they were governed by the outcome of the claims made by their parents, a conclusion not challenged in the present application.

3                     The relevant legislation and the legal principles that govern whether a person is entitled to refugee status in this country that are applicable to this case are set out at pp 2 to 4 of the Tribunal’s reasons.

4                     Mr Singh’s claim to refugee status centred on his contention that, in the period up to his departure from India, he was persecuted by the Punjab police by reason of his being an active supporter of the Sikh separatist religious leader Bhindranwale.  The Tribunal, however, did not accept this.  It also rejected his claim that he was one of the Sikh defenders of the Golden Temple against the Indian Army’s assault on 3 June 1984.

5                     However, the Tribunal did accept that Mr Singh was a deeply religious Sikh who had been arrested and detained by the Punjab police on a number of occasions between 3 June 1984 and 1993.  It held that the pattern of arrest, brief detention and release which Mr Singh and his wife said he experienced in this period reflected the common practice of the Punjab police “in most of the violent decade following Operation Bluestar”, ie, the assault on the Golden Temple.  The Tribunal concluded:

“There has been a significant positive change in the attitude of the Punjab police since 1993 as discussed above.  There is no reason to believe that the Punjab police would have any continuing interest in the applicant husband.  The Tribunal does not accept that the applicant husband is on a police list of habitual offenders.  The applicant is not a high profile militant suspect, nor is he a high profile successionist (sic).  He has never engaged in violent anti-State acts.  The Tribunal finds, therefore, in the light of the independent evidence discussed above and the applicants’ own evidence, that the applicant husband has nothing to fear from the Punjab police and therefore does not have a well-founded fear of persecution for reasons associated with his run-ins with Punjab police.”

6                     The Tribunal did not expressly consider whether the victimisation which it accepted that Mr Singh did experience in the decade following 3 June 1984 at the hands of the police was sufficient to amount to persecution or whether any such persecution was for a Convention-related reason.  But it appears implicit in the approach the Tribunal took to evaluating the evidence before it and the comments it did make that it did deal with the case by accepting that such was the situation:  implicit in the Tribunal’s findings is the conclusion that, although he did not attract detrimental police attention to himself by reason of any pro-Sikh activities of his own, Mr Singh was, like “large numbers of young Sikh men”, mistreated by the police because other Sikhs were causing violence in the Punjab and he was a Sikh.  That he had the misfortune to belong to that particular religious group, some members of which engaged in active confrontation with the Indian authorities, is the only reason capable of explaining his victimisation at the hands of the police which the Tribunal found that he suffered.

7                     The Tribunal rejected Mr Singh’s claims to refugee status essentially for two reasons.  Firstly, a review of material available to the Tribunal on conditions in the Punjab since 1993 showed that attempts by the central government to control the Punjab police, ie, by suppressing the unlawful behaviour they engaged in towards Sikhs generally in the decade following the incident at the Golden Temple, has had a substantial measure of success.  Secondly, Mr Singh was not a person with such a profile as a Sikh activist as to attract police attention to him in recent, more stable times.  Accordingly, the Tribunal found that, at the date of its determination, the applicant had nothing to fear from the Punjab police and could not show a well-founded fear of persecution.

8                     Mrs Singh claimed that, once her husband had been identified as involved in the episode at the Golden Temple, both were frequently harassed by the police, being, on a number of occasions, called into the police station, abused and beaten.  She says that, on 14 August 1993, she and her husband were taken again to the police station at Batala where, after interrogation, a police officer beat her husband with a stick and then raped her in front of him.  They left India and came to Australia soon after.  Although it did not accept all of what she said, the Tribunal accepted that the rape occurred, adding:

“The Tribunal notes, however, that this incident was a single isolated event.  Despite the applicant’s claim that she has been harassed by the police for many years, she was never raped or physically abused in any way prior to August 1993.  It is apparent that the applicant was raped on this occasion in order to harm her husband.  The rape of a man’s wife in front of him is the ultimate humiliation which a man could suffer.”

9                     This finding, while not necessarily inconsistent with the Tribunal’s finding that Mr Singh does not have a high profile with the police as a Sikh activist, emphasises the extent to which the police were prepared to go in persecuting Mr Singh, who was singled out for mistreatment solely because he was a Sikh.

10                  The Tribunal referred to its conclusion that Mr Singh was of no continuing interest to the Punjab police and that, while the applicants suffered at their hands in August 1993, a humiliating, degrading and inhumane experience, there was no reason why Mrs Singh herself would be of any continuing interest to the police.  It rejected her claim to refugee status saying:

“There is no evidence to satisfy the Tribunal that there is a real chance that the incident of August 1993 will be repeated.  It was a single, violent attack made by a police officer who was taking advantage of the position of power which he held.  The Tribunal is confident that the steps taken by the Indian and Punjabi authorities to rein in the past excesses of the Punjab police mean that the applicant no longer faces the prospect of being arrested and treated in this brutal way again.  The Tribunal finds that the applicant does not have a well-founded fear of being raped again by the Punjabi police.”

11                  Mrs Singh’s claim to refugee status can be seen to be closely bound up with her husband’s:  the most violent episode of victimisation she herself suffered at the hands of the police was directed at her husband.  Mr Singh was victimised because he was Sikh and she, in turn, was subjected to ill treatment because she was a Sikh married to a Sikh.

12                  Mrs Singh also claimed refugee status on the ground that the consequences of her being raped for her were such that she would be subjected to severe social disapproval in the community in which she lived.  The Tribunal, however, rejected her claim so based, saying:

“The Tribunal finds, however, that occasional gossip or unkindness from the community, although distressing, does not amount to persecution in the Convention sense.  It does not amount to a significant detriment or disadvantage which is serious enough to amount to persecution.  There is no reason to believe that such unkindness will affect the applicant’s ability to live a normal and safe life in her community.  The Tribunal finds that the applicants (sic) do not have a well-founded fear of persecution in India for a Convention reason as a result of being shunned by members of their community.”

13                  The Tribunal summarised its conclusions in this way:

“In sum, the Tribunal does not accept that the applicant husband was at the Golden Temple during Operation Bluestar in June 1984 and was not arrested and detained as he has claimed following that incident.  The Tribunal also does not accept that he was a Bhindranwale preacher, although he is a deeply religious man.  The Tribunal does accept that the applicant husband was arrested and briefly detained on many occasions between 1984 and 1993.  However, the Tribunal has found that since 1993 the Indian and Punjabi authorities have taken significant steps to reign in the excesses which the Punjab police committed in the past.  The Tribunal finds that there has been a significant change in circumstances in Punjab since 1993 such that the applicant husband no longer has a well-founded fear of persecution at the hands of the Punjab police.  The Tribunal finds that the applicant was raped in front of her husband by a Punjab police officer in August 1993.  However, the Tribunal finds that this was a single isolated event and there is no reason to believe, given the significant change in circumstances in Punjab since 1993, that it will be repeated.  The Tribunal finds that the applicant does not have a well-founded fear of persecution for a Convention reason at the hands of the Punjab police.  Finally, the Tribunal accepts that the applicant and applicant husband may be treated unkindly by members of their community in Punjab.  The Tribunal finds, however, that this is not a significant detriment or disadvantage which could amount to persecution in the Convention sense.  The applicant husband and applicant wife do not have a well-founded fear of persecution in India for a Convention reason.  They are not refugees.”

14                  In seeking review of the Tribunal decision the applicants rely, firstly, on s 476(1)(a) and contend that the Tribunal failed to comply with the requirements of s 430(1) in that it failed to deal in its reasons with the submission made by the applicants about the durability of the peace in the Punjab and the information submitted on their behalf, which suggested it could collapse, and that it also failed to comply with s 430(1) in that it failed to set out its reasons or material findings or refer to the evidence or other material concerning Mrs Singh’s claim that she would be persecuted by her community as a result of her rape by the police.  Secondly, Mrs Singh relies on s 476(1)(e) and contends that the decision involved an error of law constituted by the Tribunal’s failure to consider all of the substantial claims and information in support of those claims put forward by her in respect of her claim that she would be persecuted by her community because she had been raped by the police.

15                  Section 430(1) provides:

“(1)     Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that:

(a)               sets out the decision of the Tribunal on the review; and

(b)               sets out the reasons for the decision; and

(c)                sets out the findings on any material questions of fact; and

(d)               refers to the evidence or any other material on which the findings of fact were based.”

16                  The foundation for the applicants’ challenge to the decision based on s 430(1) is the judgment of Wilcox J in Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24.  After referring to s 430, Wilcox J, at 27, said:

“I accept the submission of counsel for the Minister that this section does not impose on the Tribunal an obligation to make findings about every factual matter mentioned in an applicant’s claim.  Paragraph (c) of subs (1) refers to ‘findings on any material questions of fact’.  Findings need be stated only in relation to questions that are material to the ultimate decision.  I also accept that such findings as the tribunal does make should not be construed in an over-critical way, ‘with an eye keenly attuned to the perception of error’ …  On the other hand it is important that a reader be able to discern what conclusions the tribunal reached about the issues relevant to the ultimate decision.  One of the purposes of s 430 is to ensure that unsuccessful applicants for a protection visa are told why their application has failed; if the reason, or one of the reasons, was that the Tribunal rejected a significant factual claim, the tribunal must say so and indicate the factual material on which the adverse finding was based.”  (emphasis added)

17                  His Honour held that there was reviewable error constituted by the RRT’s failure to meet this requirement.  Paramananthan was a Tamil; the Tribunal accepted that he had been mistreated at the hands of the authorities both on the Jaffna peninsula to about April 1997 and in Colombo from then, until September 1997, when he left Sri Lanka.  One of the reasons the Tribunal gave for determining that there was no real chance of persecution if he returned to Sri Lanka was that the Amnesty International 1996 report on Sri Lanka showed a recent improvement in human rights in that country.  In addition to this document, the applicant had also put before the Tribunal a British Refugee Council paper on Tamil refugees dated February 1997.  Wilcox J observed that it was difficult to see how the Tribunal could draw comfort from the comments in the Amnesty International report about improvements in human rights treatment:  those comments were heavily qualified.  The British Refugee Council report, based on a visit to Sri Lanka in December 1996 by two senior officers, dealt at length with the position of Tamils in Colombo in the period 1995 to the end of 1996; it reported continuing serious abuse of the human rights of Tamils in Colombo which the Government appeared to be unwilling or unable to prevent.

18                  It was the Tribunal’s failure to deal with this British Refugee Council report in its reasons that led Wilcox J to conclude that the decision contained reviewable error.  His Honour said, at 31:

“The tribunal was not, of course, bound to accept the information or opinions contained in this report.  But the report was a recent, comprehensive, and carefully compiled analysis of the position of Tamils in Sri Lanka, including Colombo.  It bore directly upon the matters in relation to which Mr Paramananthan expressed fears and spoke of mistreatment that included the type of mistreatment which, the tribunal accepted, he had suffered.  The matters of fact alleged in the report were clearly material.  But the tribunal member gave no inkling as to her reaction to them.  Did she accept the report to be factually correct?  If not, why not?  If it was factually correct, how could it be an answer to Mr Paramananthan’s claim of a real fear of persecution to refer to the (earlier) Amnesty comment that abuses were not so widespread as before?  There may be persecution at a particular time notwithstanding there was more widespread persecution at an earlier time.  Although it was for the tribunal to decide what finding to make about the matters stated in the British Council report, it was obliged, by s 430(1)(c) of the Act, to set out its findings and, by s 430(1)(d), to refer to the evidence on which they were based.  The tribunal did not do this.  Apart from acknowledging its receipt, the tribunal made no reference to the report anywhere in its reasons.”

19                  In Logenthiran v Minister for Immigration and Multicultural Affairs (Full Court, Federal Court of Australia, unreported, 21 December 1998), the Court set aside a decision of the RRT on the ground that, by failing in two respects to comply with s 430, the Tribunal had failed to observe procedures which it was required by s 476(1)(a) of the Act to observe.  Logenthiran was a Tamil who gave evidence that he had been ill-treated by the Sri Lankan authorities, including the police, on three occasions in 1995 and on two later occasions in 1997, one in April and one in June, when he was living in Colombo.  He left Colombo a few days after the last incident.  In its reasons, the Tribunal referred to all five episodes, found that he had been mistreated by the authorities on the three occasions in 1995, but made no findings in relation to the two occasions in 1997.  The Tribunal, in reliance on a DFAT cable of 24 January 1997 that stated that there had been very few reports of serious mistreatment in detention in Colombo in 1996 of Tamils owing to improved police practices and a greater demand for police accountability, concluded:

“… that given these recent improvements in police conduct, the chance that ill-treatment in custody will recur is remote.”

20                  It referred to a number of reports, the most recent dated April 1997, containing information that also supported the Tribunal’s conclusion that his fear of persecution by the authorities, if returned to Sri Lanka, was not well-founded. It also had before it a British Refugee Council report of February 1997 on the uncertain position of Tamils in Colombo, with which it did not deal in its reasons.

21                  Wilcox and Lindgren JJ (Merkel J agreeing and adding further reasons of his own) said, of the Tribunal’s reasoning to its conclusion:

“… the RRT moved from finding ‘credible’ Mr Logenthiran’s account of the three instances of arrest, detention, interrogation and beating in Colombo in 1995 to dealing with the prospect of repetition if he were to return, without referring at all to the intervening events of April and June 1997 …

We do not accept the Minister’s submission that it was sufficient, in relation to such an important matter, that the RRT referred to these important events [ie, the two incidents in 1997] in the ‘Claims and Evidence’ section of its Reasons.  What did the RRT make of Mr Logenthiran’s claim that in mid-April 1997 … he was arrested by the Sri Lankan Army and beaten during interrogation?  What did it make of his claim that in June 1997 in Colombo, he was arrested by the police and kept in custody for a week, during which time he was beaten?  What did it make of Mr Logenthiran’s claim that on each of these two occasions, uncle Siva paid substantial money for his release?  What did the RRT perceive to be the relationship between these events and the general information that police practices have improved, there is a greater demand for police accountability and there were few reports of serious mistreatment in detention in Colombo in 1996?  Answers to these questions are not to be found in the RRT’s Reasons for Decision.”

22                  Their Honours referred to the primary judge’s conclusion that the RRT had complied with s 430(1) and continued:

“With respect, we agree with his Honour that on the question whether Mr Logenthiran’s current fear of persecution is ‘well-founded’ the RRT was entitled to weigh up information of a general nature as to the circumstances prevailing in Sri Lanka in 1997 against Mr Logenthiran’s own claims and evidence, and, in the case of conflict and approaching the matter properly, to prefer one to the other.  But, we do not think that it was open to the RRT in carrying out that exercise, not to address, or make findings in respect of, Mr Logenthiran’s claims as to what allegedly befell him from the Sri Lankan Army and the Colombo police in April and June 1997 respectively, shortly before his departure from Sri Lanka, having regard to the obvious relevance of those claims to the issue whether his fear was well-founded …

There is another aspect of failure to comply with s 430 of the Act; the failure of the RRT to deal with the information contained in the British Refugee Council report, Protection denied: Sri Lankan Tamils, the Home Office and the forgotten war, discussed, in a different context, in judgments delivered today in two other cases involving young Tamil males … There is no finding about the claims made in this document which appears to be a carefully prepared and comprehensive report dealing directly with the situation in Colombo in 1997 of young Tamil males from LTTE-controlled areas in the north and east, and which Mr Logenthiran, through his solicitor, supplied to the RRT.   While it was open to the RRT, as a tribunal of fact, to reject the claims made in the report, it was not open to it to do so without setting out its own findings in respect of the situation claimed by the report and the evidence or other material on which those findings were based.  The RRT’s non-compliance with s 430 of the Act activates the ground of review provided for in s 476(1)(a).”  (emphasis added)

23                  In Perampalam v Minister for Immigration and Multicultural Affairs [1999] FCA 165, a differently constituted Full Court (Burchett, Lee and Moore JJ) applied the approach of Wilcox and Lindgren JJ in Logenthiran to hold that the RRT’s failure to deal in its reasons with matters raised by the applicant for refugee status that the Court considered were relevant to a proper assessment of whether she met the Convention requirements constituted a breach of s 430 sufficient to invalidate the Tribunal’s decision.

24                  In Thevendram v Minister for Immigration and Multicultural Affairs [1999] FCA 182, another Full Court (Spender, North and Merkel JJ) applied Logenthiran and said of the RRT’s duty under the Migration Act 1958 (Cth) to determine the merits of the case and thus each of the material issues raised before it (at par [37]):

“That duty, in our view, is a fundamental incident of the statutory function of the RRT.  In determining those issues the RRT must make findings on the questions which are central to the case raised on the material and evidence before it … The cumulative effect of the statutory provisions to which we have referred is that the RRT is under a duty to review the decision of the delegate on the merits and in doing so must have regard to all of the material and evidence before it and make findings on all of the material questions of fact raised by that material and evidence.”

25                  Again, the Tribunal’s decision against an applicant for refugee status was overturned because of the Tribunal’s failure to deal in its reasons with material put before it by the applicant and relevant to whether he could bring himself within the Convention requirements.

26                  In yet another case involving a claim by a Sri Lankan Tamil to refugee status, Sellamuthu v Minister for Immigration and Multicultural Affairs (Wilcox, Hill and Madgwick JJ, unreported, 19 March 1999), a Full Court set aside the decision of the RRT for non-compliance with s 430(1)(c); the Tribunal failed to deal in its reasons with issues raised by the applicant’s solicitor as to whether there was objective circumstantial evidence sufficient to satisfy the Tribunal that the applicant had been mistreated by the Sri Lankan authorities in the past and might therefore fear more mistreatment.  There was also the question whether, even if he had suffered no actual harm in the past, what nevertheless would his future be on account of his race and/or the possible imputation to him of a political opinion supporting the Tamil Tigers.  The Court applied Paramananthan and Logenthiran, saying:

“Thirdly, s 430(1)(c) requires that the Tribunal ‘set out the findings on any material questions of fact’.  The two questions we have identified are factual ones and, in our view, undeniably material.  Moreover, the applicant’s submissions and the Tribunal’s own short findings on the situation in Sri Lanka, to which we have referred, themselves raised a number of ‘material’ questions of fact in the sense that they were critical or crucial to a proper determination of the matter.  But no such findings were ‘set out’ in the written statement of the Tribunal’s reasons.  The requirements imposed by s 430 may aptly enough be described as ‘procedures’.  Alternatively, it is clear that the requirement that ‘the findings on any material questions of fact’ be ‘set out’ is meaningless unless the Act, on its proper construction, implicitly requires that such findings be made.  …”

27                  The dicta of the majority of the Full Court in Ahmed v Minister for Immigration and Multicultural Affairs [1999] FCA 811 are, in my opinion, inconsistent with the approach adopted in this line of authority.  The question there was whether the RRT decision refusing to recognise that a Somali woman was a refugee should stand.  The Tribunal rejected her evidence as untrustworthy and, for that reason, concluded that there was no information before it sufficient to substantiate her claim to refugee status.  However, it went on to consider certain information, relevant to whether she had a well-founded fear of persecution, as to the prospect of a ceasefire enduring and with it inter-clan violence in Somalia becoming a thing of the past.  In addition to material supporting that view of the situation in the country, the applicant’s adviser placed before the Tribunal, after the hearing had concluded but before its decision was delivered, a copy of a Reuters article of 5 March 1998 that reported an outbreak of inter-clan violence on 16 February, ie, a little over two weeks after the ceasefire.  This information contradicted other information before the Tribunal which it referred to to reach its conclusion that there had been a significant change in circumstances as a result of the ceasefire which told against any claim the applicant could make to have a well-founded fear of persecution if she returned to Somalia.  The Tribunal made no reference to this in its reasons.  Branson J inferred that, due to an administrative error, the material was not drawn to the Tribunal’s attention.

28                  Lee J observed that, unless the attack made on the Tribunal’s finding that material changes in circumstances in Somalia have removed any basis on which it could be said objectively that a fear of being persecuted in that country was well-founded based upon the Tribunal’s failure to mention the Reuters report was made out, the appeal had to fail.  His Honour held:

“[8]    In making that finding the Tribunal was not required under s 430 of the Act to set out how it had dealt with an item such as the press report of a clan disturbance occurring in the period after the ceasefire agreement.  Obviously it was a matter to be assessed and weighed with other material but if the Tribunal did not conclude that it gave cause for some other finding, it was not required by s 430 to make specific reference to it in its written statement prepared under that section.

[9]      It was a finding of fact open to the Tribunal and though it may not have been an obvious finding on the material before the Tribunal, reaching that finding did not involve a departure from the decision-making procedures of the Act to attract an entitlement to judicial review as provided by the Act.”

29                  Marshall J, the other member of the majority, pointed out that there was material before the Tribunal referring to developments in Somalia on 3 March 1998, ie, after the gunfire incident, sufficient “to again raise hopes for a return to peace”.  His Honour said:

“[52]  Consequently the crucial aspect of the RRT’s reasoning in this regard … is supported by the totality of the material which was before the RRT notwithstanding that the RRT appears not to have had regard to one isolated instance of resumption of hostilities in mid February 1998.

[53]    In my view, the RRT complies with s 430(1)(c) & (d) … by setting out its findings on any material question of fact and by referring to evidence on which the finding was based.  In the current matter the RRT set out its finding concerning changed circumstances and referred to evidence to support that finding.  The fact that the RRT did not refer to evidence to the contrary does not mean that it has not complied with its obligations under s 430(1) of the Act.”

30                  Branson J dissented.  The view her Honour took of s 430 is quite different from that of the majority:

“[32]  … It is, in my view, too technical a view of the obligation imposed by s 430 of the Act to construe it as obliging a Tribunal to refer to material before it which supports a finding on a material question of fact but as never requiring reference to be made to material which suggests against a finding made.  Section 430, in my view, is to be understood as requiring an exposure of the reasoning process undertaken by the Tribunal and a justification of its findings of fact …  Where weight is not placed by the Tribunal on apparently probative evidence or other material, a reference to ‘the evidence or other material on which the findings of fact were based’ will involve, in my view, an explanation for the apparently probative material not being accorded weight.”

31                  Her Honour supported her conclusion with a reference to Paramananthan.

32                  Apart from the majority’s reasons in Ahmed, the line of authority commencing with Paramananthan to which I have referred speaks, in my opinion, with one voice in requiring the Tribunal to explain why it has rejected apparently probative material relevant to a material issue even though there may be sufficient or indeed even an abundance of material the other way to support the conclusion on that issue that the Tribunal, in fact, reached.  Even if, by reason of the majority decision in Ahmed, it may, in theory, be open to me to decline to follow the other Full Court decisions explaining s 430, I think that I should follow such a clear approach, repeatedly stated by a number of Full Courts.  Further, they, and Branson J’s dissent in Ahmed, in my respectful opinion, correctly identify the role s 430 plays in the particular scheme contained in the Migration Act 1958 (Cth).

33                  These authorities show that s 430, in requiring the Tribunal to set out its findings on material matters, is not directed to matters which the Tribunal considers material:  it is directed instead, to matters that are objectively material to whether a person is in truth a refugee.  They also show that s 430 imposes a more stringent fetter on the Tribunal’s freedom of decision-making than does the existence of error of law constituted by a want of evidence to support the decision, as a ground for review.  This only exposes an administrative decision to review if there is no evidence to support a critical finding:  see Collins v Minister for Immigration (1981) 58 FLR 407 at 410 - 411.  These authorities also show that, while it is not permissible to subject the Tribunal’s reasons to over meticulous scrutiny for possible error, once an issue favouring an applicant for refugee status is identified as a material one, the Tribunal must explain why it finds against the applicant on that issue, if it is not to breach s 430.  In such a case, the Tribunal’s decision cannot be supported on appeal because there is material, even an abundance of material, which the Tribunal was entitled to accept and which is sufficient to justify the decision against the applicant.

34                  As is apparent from the length of that section of the Tribunal’s reasons headed “Claims and Evidence”, the Tribunal had much information before it touching on the events of June 1984 and on conditions in the Punjab from then until the time it gave its decision.  The material reviewed by the Tribunal at pp 23 to 32 of its reasons strongly indicates that from the second half of 1992 there was a rapid decline in Sikh militancy in the Punjab and a virtual return to normalcy.  The material here surveyed by the Tribunal does contain occasional references to violent episodes, eg, the assassination of the Punjab Chief Minister in late August 1995 (although that is mentioned in the context of it being described as “the last major terrorist incident to have occurred in Punjab” in a paper produced in February 1997).  The Tribunal noted a later bombing incident in July 1997, but observed “there is no indication that this is indicative of an upsurge in militant activity in Punjab, but rather isolated instances of terrorism”.  The Tribunal also referred to a statement in the February 1997 paper to the effect that, while the militants’ ability to assert themselves may have been temporarily suspended, “future manifestations of Sikh militancy could not be discounted”.  However, the overwhelming impression of the considerable volume of material surveyed by the Tribunal in this section of its reasons is one of a return, certainly by the beginning of 1997, to a very large measure of normalcy in the Punjab, with police excesses there of the kind directed against Sikhs in the decade following the Golden Temple incident being a thing of the past.

35                  In sharp contrast, a reading of the Country Research Service report of September 1998 procured by the applicants creates an impression that the perception held in recent times by people in authority in India is of a real risk of a further outbreak of Sikh militancy.  It reports the official who was Director-General of Police in the Punjab through the first half of the 1990s saying, in mid 1997:  “At one point … I imagined that terrorism in Punjab was over.  Now I believe that there is no way we can stop terrorism from returning to Punjab”. The current Director-General of Police in the Punjab is reported as stating in August 1997 that “There is definitely a concerted effort by the Punjab militants to revive terrorism in the state”.  The report states that:  “Since 1997 there have been reports of a revival of Sikh militant planning and activity” and that information possessed by the police, albeit only in outline, identifies “the structure of a rejuvenated terrorist set up”.  It refers to the assassination of the Punjab Chief Minister in August 1995, only recently publicly acknowledged as the work of Sikh militants; to bomb attacks, causing many deaths, in different parts of the Punjab in April and June 1997 and on 8 and 9 July 1997, that provoked comments by the Punjab Congress President that the last blast was “concrete evidence that terrorism was once again raising its head in the State” and a reference by the leader of the Communist Party of India to “what is definitely a comeback effort by Punjab militants”.  The report also refers to the arrest in February 1998 of two Sikh activists implicated in planning attacks on the Prime Minister and Sonia Gandhia on their visits to the Punjab.  It refers to a number of reports of militant activities through 1997/1998 reflecting “not only a rejuvenation of activity but also a new strategy”, characterised by stealth, including a move towards the use of explosives rather than rifles.  A statement to that effect by the Director-General of the Punjab police in early 1996 is noted.  The report also refers to evidence of recently formed links between the Sikh militants and other separatist movements, including the Kashmiri Muslims and the tribal peoples in the north east of India, who are currently engaged in seriously disruptive activities, and also the emergence of links between Muslim fundamentalists and Sikh terrorists.

36                  At p 32 of its reasons in the section headed “Claims and Evidence”, the Tribunal referred to this report, saying:

“The paper focuses on the current state of the Sikh separatist movement and recent actions by militants.  The paper does not focus in any significant way on the excesses of the Punjab police which is what the applicants claim to most fear.”

37                  The Tribunal then went on to refer to comments in the report about setbacks suffered by the Sikh militant movement since 1993 and comments about the way in which the police in the Punjab have been brought under greater control.  The Tribunal, at p 37 in the section headed “Findings and Reasons”, repeated what it had to say here about the Country Research Service report.

38                  The report, with its theme of the risk of resurgent Sikh militancy, raises issues material to the applicants’ claims to refugee status.  That Mr Singh may personally be of no interest to the police and that the police may, since the early 1990s, have been brought under greater control than was the case in the years following June 1984 is no answer to the issue raised by this report of the risk of a resurgence of Sikh militancy in the Punjab.  If the risk of a significant further outbreak in Sikh militancy is realised, there is the associated risk that the police will revert to their former brutal treatment of Sikhs generally in which the Tribunal found Mr Singh was caught up.

39                  In view of the material concerning the risk of renewed Sikh militancy, the risk of renewed police persecution of Sikhs is one which the Tribunal needed to consider.  The information in the Country Research Service report and the submission made on behalf of the applicants in reliance on that material requires that consideration.  Moreover, the information before the Tribunal cannot be said to show that the risk of the police reverting to their old ways in response to a renewal of Sikh activism is only a remote or fanciful one:  in this situation, the materiality of the issues raised by the report for the purposes of s 430 is clear.  Even though the Tribunal found that more control had been imposed on the Punjab police in recent years by higher authorities, there is much material before the Tribunal suggesting that it is still far from a tightly disciplined force, a matter relevant to how the force is likely to respond to any further Sikh activism.  Apart from the Country Research Service report of September 1998, the two most recent reports referred to by the Tribunal were, India:  Information from four specialists on the Punjab, the Documentation, Information and Research Branch, Immigration and Refugee Board, Canada, 17 February 1997 and India Report on Human Rights Practices for 1997, US Department of State, 30 January 1998.  The Canadian report,  in the section headed “Punjab Police”, contains the following:

“The panel agreed that in recent years the central government has been attempting to rein in the Punjab police, who during the insurgency were responsible for large numbers of extrajudicial executions and disappearances …

While Brack acknowledged that occasional violations might still take place, he predicted that the likelihood of future disappearances at the hands of the Punjab police is very low.

Both Nair and … Mann maintained, however, that the climate of impunity for Punjab police officers has been deeply ingrained over many years, and will take a long time to change …

Furthermore, according to Nair, the current signals being sent to the Punjab police regarding impunity are not always straight forward …

In Mann’s opinion, the recent judicial actions against some Punjab police officers will not solve the problem of impunity or abuses.  Mann stated that the Punjab police, with an ingrained culture of using brute force, retain the power to do many unacceptable things without being called into account. …”

40                  The US State Department report does say that the pattern of disappearances prevalent in the early 1990s in the Punjab appears to be at an end, although only limited official action has been taken to date to bring to account the many police and security officials involved in serious human rights abuses committed during the counter-insurgency of 1984 - 1994.  But in a comment relating to the current situation in the Punjab, the US State Department report notes:

“There are credible reports that police throughout the country often do not file required arrest reports.  As a result, there are hundreds of unsolved disappearances in which relatives claim an individual was taken into police custody and never heard from again.  Police usually deny these claims, countering that there are no records of arrest.”

41                  Given that the Tribunal did deal, in some detail, with the Country Research Service report, can it be said that it breached its duty under s 430 to explain why it did not regard this report as showing that there exists a real risk of future police persecution of Sikhs in the Punjab?

42                  It cannot be said that the Tribunal missed the point that emerges from the Country Research Service report, viz, that there is good ground for fearing a further outbreak of Sikh militancy in the Punjab:  the Tribunal noted that the paper “focuses on the current state of the Sikh separatist movement and recent actions by militants” and it also recorded (without comment) the submission made on behalf of the applicants that the material before the Tribunal showed that the root causes of the problems in the Punjab remain largely unaltered and experts are concerned that peace will not last.

43                  The Tribunal does not, however, explain whether it accepted the reliability of the statements made in the report about that issue, including statements the report attributes to highly-placed Punjab officials; if it did accept those statements as reliable, it gives no explanation for declining to hold that those statements raise, as a real risk, that the police may respond with renewed persecution of Sikhs.  To dismiss the report, as the Tribunal did, because it does not deal in any significant way with the excesses of the Punjab police is, in my opinion, no explanation for why the Tribunal rejected the quite extensive material in the report that raises the spectre of resurgent Sikh activism there, in the reasonably foreseeable future.  It is this which, if it becomes a reality, is likely to bring with it a renewal of that persecution of Sikhs engaged in by the police which the Tribunal accepted occurred in the decade following the incident at the Golden Temple and which Mr and Mrs Singh then experienced.

44                  I therefore consider the Tribunal failed to comply with s 430 in this respect.  Its decision rejecting the claims by the applicant, his wife and the children must therefore be set aside.

45                  The Tribunal’s decision is also challenged on the basis that it failed to explain, to the extent required by s 430(1), why it rejected Mrs Singh’s claim that she would be persecuted by her community as a result of having been raped by the police.

46                  The Tribunal rejected what it took to be the claim by both applicants on this ground.  The case was argued before me, however, on the basis that the evidence only went to show that Mrs Singh was at risk of persecution in her community because of her rape by the Punjab police:  this ground was put forward as one upon which only Mrs Singh could rely to challenge the Tribunal’s decision rejecting her claim to refugee status.

47                  I have already set out the relevant passages from the Tribunal’s reasons in which it deals with the claim here made and explains why it rejects it as a ground for accepting that Mrs Singh is a refugee.  Essentially, the Tribunal characterised the consequences for Mrs Singh of the rape as no more than a quite low level of disdain by her community towards her:  it concluded that this “occasional gossip or unkindness from the community” which will not “affect the applicant’s ability to live a normal and safe life in her community”, was not sufficiently serious a disadvantage to amount to persecution.  It could not therefore constitute persecution within the meaning of that term in the Convention.

48                  While Mrs Singh herself was reticent in the oral evidence she gave to the Tribunal about this incident, there was a body of material before the Tribunal suggesting that the consequences for Mrs Singh, in terms of the likely community reaction to her having been raped, are likely to be much more harmful than the Tribunal found to be the position.  This material comprises the following:

(a)                In his oral evidence, Mr Singh, when responding to the invitation to explain what else he thought might happen when he returned to the Punjab, said, pretty clearly enough in relation to the rape:

“We know that police they will come.  They insulted me very badly.  They insulted her also very badly.  And I would like to point out in our society you will probably know that a woman once she goes through that fate is not accepted and we would be humiliated in our own society as it is here she has got this fear in her.  Most of them die after that, I can say.”

(b)               Question 66 of Mrs Singh’s application for refugee status asked:  “Have you, or a member of your close family, ever been subject to discrimination or mistreatment from sectors of the population in your home country other than the authorities?”  To this, Mrs Singh answered “Yes”.  She did not respond, in either box provided, to the next question:  “If ‘Yes’, did the authorities offer you/your family effective protection?”.  But, in answer to the direction in the form to describe what happened, she stated:

“Because of police treatment, nobody, neighbours and relatives likes me.  They think I am not clean now.  This is village people belief.”

(c)                Mrs Singh gave what appears to be the fullest account of what she fears as the consequences for her by way of community reaction to her having been raped in what she said to the psychologist, Ms Anita Duffy, whose report was before the Tribunal.  The psychologist noted:

“… and in addition to this the humiliation and shame she suffered as a victim of rape would effectively ostracise her from her society …

She said the rape occupies her mind all the time.  She constantly thinks about it and feels shame and humiliation.  She says in India if a woman is raped she cannot face society and would be ostracised.  Following the rape incident, she could not stay at home and was secreted to various relatives in hiding, before arriving in Australia …

Her situation is further worsened by the fact that as a victim of rape she faces ostracisation (sic) and disgrace in her culture.  Thus, she will receive no support, and would be an outcast in her society …”

Ms Duffy considered that Mrs Singh appeared “highly traumatised by the rape experience and its sequelae” and that as a result of various psychological tests which she administered to Mrs Singh, she considers her “to be suffering from symptoms of Major Depression as well as Post Traumatic Stress Disorder in response to a series of incidents which occurred in her homeland of Punjab in India, culminating in her arrest and rape in front of her husband by police”.

(d)               The earlier RRT, whose decision was before the second Tribunal, dealt with the applicants’ claim to refugee status, in relation to her rape experience, saying:

“The Tribunal is cognisant of the life-long social implications of the harm done to the applicant in the course of the persecution she underwent.  It agrees with the applicant husband’s assertion that she would be constantly humiliated if she were to return to her village, an assertion which corresponds with the range of country information available on gender in India …”

The first Tribunal, however, considered that the humiliation or ostracism Mrs Singh would suffer would be because of having been raped and could not amount to persecution “in the Convention sense”.  It also concluded that she could not be regarded as a member of a particular social group for the purposes of the Convention, whether that group be defined as “women in India who have been raped” or more widely as “women”.  The first Tribunal’s conclusions and opinions were not, of course, in any way binding on the second Tribunal.  But that the earlier Tribunal, evaluating Mrs Singh’s claim as to the harmful consequences of the rape, took a significantly more serious view of those consequences than did the present Tribunal emphasises the importance of an explanation being provided by the second Tribunal for why it reached the conclusion it did as to the relatively minor nature of those consequences.

49                  All this material suggests that the consequences of the rape, in terms of community reaction, were likely to be significantly more serious for Mrs Singh than the Tribunal found to be the case.  Yet the Tribunal did not even refer to some of this evidence, eg, that of the psychologist, and did not, in any event, explain why, in the face of that evidence, it came to the quite different conclusion it did.  The Tribunal therefore failed to do that which s 430(1) required it to do.

50                  However, that the Tribunal’s decision contains this reviewable error in relation to this claim by Mrs Singh to refugee status, does not mean that the decision must be set aside.  Relief, where reviewable error has been found in a Tribunal decision under s 481 the Migration Act, is discretionary.  Cf the authorities on s 16 the Administrative Decisions (Judicial Review) Act 1977 (Cth), the provision from which s 481 is copied, collected in Vol 2 of the CCH Federal Court Practice at para 23-227.

51                  A deliberate decision by an applicant not to put material before an administrative tribunal on a particular relevant issue and delay in pursuing a claim for review are examples of conduct by applicants capable of providing good reason for denying administrative review, notwithstanding the fact that the applicant has been able to demonstrate reviewable error on the part of the Tribunal.  Cf Peko-Wallsend Ltd v Minister for Aboriginal Affairs (1985) 59 ALR 51 at 59, 79 and 87 and Styles v Department of Foreign Affairs (1988) 84 ALR 408 at 433.

52                  Before the Tribunal could find in her favour, it would have to be satisfied that Mrs Singh had a “well founded fear of being persecuted for reasons of … membership of a particular social group” within the meaning of that composite expression in Art 1A(2) of the Convention:  per McHugh J in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 256 - 257.  Conduct, whether by private persons or officials, and even though it may inflict serious harm on the target, will still only amount to persecution for the purposes of this Article of the Convention if it is conduct which the State in question either encourages or is, or appears to be, powerless to prevent:  Applicant A at 257 - 258 and Islam v Secretary of State for the Home Department [1999] 2 WLR 1015 at 1018, 1030.  The conduct said to amount to persecution must also have been engaged in (so far as is presently relevant) for reasons of the refugee-claimant’s membership of a particular social group.

53                  No attempt was made, in argument before me, to demonstrate that there was material before the Tribunal sufficient to enable it to come to a finding in favour of Mrs Singh on each of these two issues.  There is little evidence touching on the second, viz, whether Mrs Singh could show that, as the victim of rape, she was a member of a particular social group for the purposes of the Convention.  It may be possible to establish the existence in some, even if not in all countries, of such a social group:  see Applicant A at 265 - 266 and Islam, an important recent decision of the House of Lords on this aspect of the Convention.  However, counsel did not attempt to make out such a case before me and I doubt very much whether there was material in the voluminous evidence before the Tribunal to support a finding by it on this particular issue in Mrs Singh’s favour.

54                  As I read the material before the Tribunal, there is nothing in it sufficient to support a finding that any ostracism that Mrs Singh could expect to experience within her community, otherwise capable by reason of its severity of amounting to persecution for the purposes of the Convention, is conduct in respect of which Mrs Singh would have no effective protection from the Indian State.  Nor did counsel suggest any error on the part of the Tribunal in failing to make a finding in favour of Mrs Singh on this particular issue.

55                  The argument that Mrs Singh was entitled to refugee status by reason of the social consequences of her rape was put unsuccessfully to each of the two Tribunals that have now dealt with the matter.  Both specifically dealt with the question whether the conduct Mrs Singh fears is capable of amounting to persecution within the Convention.  In neither does it appear that any attempt was made to establish, by appropriate evidence, that the community response she can expect to be confronted with amounts to such persecution by reason particularly of it being a response in respect of which the applicant cannot expect protection by the Indian State.

56                  While there is no reason to conclude that Mrs Singh’s case here has been deliberately run on a limited basis to buy time, an applicant in proceedings before the RRT is expected, like litigants in ordinary litigation, to raise for the Tribunal’s consideration all matters relevant to their being granted the relief they seek.  There should be no encouragement to applicants to string out cases before the RRT by running them on a limited basis, in the expectation that, if they can show reviewable error in a decision adverse to them, the Court will give them further opportunity to pursue their claims in another further hearing before the Tribunal. 

57                  The issues of whether Mrs Singh can show that the ostracism she fears is by reason of her membership of a particular social group and whether it is detrimental conduct in respect of which she cannot claim effective protection from the Indian State are essential ones to her claim to protection as a refugee.  She has had opportunity in two Tribunal hearings, in both of which she was legally represented, to raise those issues.  Given this and given the way she has conducted her case in this regard before both Tribunals and in this Court, I consider she is disentitled to a third Tribunal hearing, even though she has shown reviewable error on the part of the second Tribunal in the way it dealt with her claim to refugee status on the basis of the community response to the rape.

58                  It is doubtful, in view of the restriction on the scope of review for error of law imposed by s 476(1)(e), that the Tribunal can be said to have made any reviewable error of  law, of the kind contended, in its decision adverse to Mrs Singh.  But if it did make a reviewable error by failing to deal in its reasons with the information I have referred to above as to the magnitude of the consequences for her of the rape, if she returns to her community, I would refuse to set aside the Tribunal’s decision here, for the reasons I have given for refusing to set aside this part of the decision even though it is infected with error constituted by non-compliance with s 430.

59                  I would therefore affirm the decision of the Tribunal dismissing Mrs Singh’s claim to refugee status based upon what she fears to be her community’s response to her having been raped by the Punjabi police.  But I will otherwise set aside the decision of the Tribunal rejecting the applicants’ claims to recognition of their being refugees.

Associate:

Dated:              17 August 1999