FEDERAL COURT OF AUSTRALIA

Dhiman v Minister for Immigration and Multicultural Affairs [1999] FCA 1291

IMMIGRATION – Nature and content of duty to inquire further - Whether Tribunal should have applied “what if I am wrong?" test

Migration Act 1958 (Cth)

Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663, considered

Luu v Renevier (1989) 91 ALR 39, considered

Minister for Immigration & Multicultural Affairs v Cho [1999] FCA 946, considered

Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155, considered

PAVINDER DHIMAN v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 583 of 1998

MADGWICK J

15 SEPTEMBER 1999

SYDNEY

THE COURT ORDERS THAT:

1.                  The application is dismissed.

2.                  The applicant is to pay the respondent’s costs.

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

REASONS FOR JUDGMENT

HIS HONOUR

1                     This is an application for the limited form of judicial review which is available in this Court pursuant to the Migration Act 1958 (Cth) (“the Act”)in respect of a decision of the Refugee Review Tribunal ("the Tribunal").  The Tribunal affirmed a decision of a delegate of the respondent Minister that the applicant was not entitled to a protection visa because he did not qualify to be accorded refugee status.

The applicant's claims

2                     The applicant is an Indian national of Sikh religion and ethnicity from the Punjabi region who, at the age of 23, entered Australia on an Indian passport on 30 December 1996.  On 22 January 1997 he applied for a protection visa.  The substantial claim he presented to the Minister's delegate was that he feared persecution for reasons of his actual or imputed political opinion.  Despite being, as he put it, merely a "lower level" supporter of what might be termed the Sikh self-determination movement, through his friendship with activist leaders of the movement and assistance (such as the provision of shelter) rendered to them, he had become a target for various organs of governments in India.  In March 1994 in Calcutta he was arrested, "handed over" to the Punjab State Police and falsely charged with possessing weapons.  He was then "badly tortured" by the police and asked to identify other youths.  After two months' detention without being brought before a court, his father and other older people arranged his release on "bail" through bribery.  One of his activist friends had been "liquidated" after being arrested.  Another had sought refuge in the USA.  He then "escaped" from the Punjabi region back to Calcutta.  In August 1995 the Chief Minister of Punjab, Mr Beant Singh, was murdered.  Sikh militants were blamed and a repressive operation known as "Operation Cream" was mounted by the police and other official organs against "all youth activists" of the All-India Sikh Student Federation (of which the appellant had been a member).  The Punjab police were "hunting" such people outside Punjab and "nothing was safe".  Later, his father paid people to help him flee India.  He arrived in Australia, as indicated, on 30 December 1996.  There is, he claimed, a "climate of impunity" for Punjab police officers which has been "deeply ingrained over many years".  It will take a long time before they become a "disciplined force" with respect for human rights.

3                     His case was that he was at risk of being targeted by police because of (a) his involvement in the Student Federation; and/or (b) his links with high-profile Sikhs suspected of terrorist activities.  The combination of his past torture and the propensity of the Punjab police to seriously mistreat such suspected Sikhs meant that he had a well founded fear of persecution for reasons of the political opinion they would impute to him.  By implication, the national authorities would be unwilling or unable to protect him.

4                     After the applicant's arrival in Australia and the making of his application for refugee status, including outlining the sort of case for such status summarised above, it appears that his father died.  Independent materials showed that he died on 23 April 1997 of a sudden cardio-respiratory arrest after 17 days in hospital, that his admission to hospital followed his having been brought, unconscious and bleeding from the ears, to a medical facility, and that he had been diagnosed on admission to that facility as having a head injury.  The applicant produced letters from his mother and a friend suggesting that his late father had died of police-inflicted injuries.  It was said that the police came to his parents’ home to question them about the applicant and took his father away to a police station when his father denied relevant knowledge of the applicant.  Four days later he was found unconscious at a "playground".  There had been a continuing interest by the police in the applicant before and after this, the letters asserted.  The friend's letter was dated 27 April 1997 and the mother's three days later.  Plainly, if these assertions were true, the case that the applicant had reason to fear harm from the Punjab police might well be stronger, subject to the question of whether the applicant might be safe elsewhere in India than in the Punjabi region, whatever generalisations adverse to him the independent materials might have justified.

5                     Contemporary instances of police atrocities against named Sikh suspects were also given by the appellant.

Independent evidence before the Tribunal

6                     From the early 1980s, the Punjab region was unstable and violent, following the emergence of Sikh separatist groups and the assassination of the Prime Minister of India, Mrs Ghandi, by Sikh bodyguards which triggered grave anti-Sikh communal violence.

7                     In the early nineties, there were extensive and serious human rights abuses in Punjab committed by and against Sikh activists and also against some innocent bystanders.  In 1992 Mr Beant Singh became Chief Minister of Punjab.  He was apparently a capable and progressive man.  His regime gradually brought about increased political stability and economic prosperity.  He was, however, assassinated in 1995.  That assassination brought in its train renewed police excesses during the investigation of the case.  Officers from Australia's embassy in New Delhi predicted, however, that these excesses were unlikely to continue long and considered that the force of the militant Sikh movement had dissipated.  The Department of Foreign Affairs officials saw no problem in relocation as an option for a Punjabi Sikh, the Indian Government having effectively increased its vigilance against human rights abuses.  Other materials also painted a hopeful picture and justified a view that only "high profile" individuals, that is, persons suspected of "anti-state activities" would be targets of the Punjab police.  That category would not include "a family member of such a person or someone who was forced to provide shelter for militants during the height of the insurgency".  Pro-separatist opinion would not be enough, "one would have to engage in violent anti-state acts".

Findings

8                     The Tribunal accepted that the applicant, "like many thousands of Sikh youths at a time of severe repression by the Indian authorities of Sikh militancy, was detained and mistreated", but did not accept that he could now be considered "a high profile militant in danger of detention and persecution upon return to India".  Reliance was placed by the Tribunal on the generalised independent evidence of improved conditions very shortly summarised above and on certain objective features that would cast doubt on the applicant's claim that his family and himself had been "blacklisted".

9                     As to the death of the applicant's father, the Tribunal said:

"While the medical certificates tendered by the applicant attest to the fact that his father died of a head injury and sudden cardio-respiratory arrest, it is only the letter from his mother and a friend that provide corroboration to the applicant's oral evidence that his father had been detained by the police and assaulted due to their making enquiries about the whereabouts of the applicant.  The Tribunal is not satisfied as to the veracity of the applicant's claims as to the cause of his father's death."

The Tribunal Member stated:

"However, the Tribunal finds it implausible that the Indian police have maintained a continuing interest in him to such an extent that he could be considered a high profile militant in danger of detention and persecution upon return to India.  He lived in Calcutta for some three years working for the same company and was never detained or questioned. He was issued with a passport and departed India legally."

The case for review

10                  The applicant submits:

(a)                there has been no adequate compliance by the Tribunal with its obligations under s 430(1)(c) and (d) to make material findings of fact concerning the manner of his father's death;

(b)               the Tribunal failed rationally to consider the evidence about this matter;

(c)                the Tribunal failed in the duty it had, arising out of the particular circumstances of this case, to cause further inquiries to be made as to the circumstances of the death before rejecting the applicant's evidence;

(d)               the Tribunal had erroneously required corroborating evidence as to the cause of the death or had erroneously imposed an onus of proof on the applicant;

(e)                the Tribunal erroneously failed to apply a "what if I am wrong?" test about the death of the applicant's father.

Conclusions

11                  In my opinion the applicant might possibly have a justified sense of grievance about the way the Tribunal dealt with the death of his father.  However, there is no way, in my opinion, that this can be fitted within the limited categories of error that amount to a ground of judicial review by this court.

Duty to set out findings on material facts

12                  In the first place, the effort is to be made "really to understand" what the Tribunal's findings and reasons were:  see Satheeskumar v Minister for Immigration and Multicultural Affairs [1999] FCA 1285.  It is evident that the Tribunal accepted that the applicant might have a genuine subjective fear of persecution upon his return. The Tribunal dealt with the matter entirely upon the basis that:

"The Tribunal finds … the applicant's fear of persecution for his political opinion or for any other Convention reason, upon return to India not to be well founded."

13                  In the course of the brief discussion which led to this conclusion, the Tribunal Member said "The Tribunal cannot see any reason for the alleged continued harassment of the applicant's parents by the police and … it is not satisfied that this has occurred".  A reason was given for that conclusion, namely that the records of the applicant's legal departure from India would have been available to the police and they would have known of his departure.  Both of those inferences were open to be drawn, notwithstanding that others might not have drawn them, particularly, the second.

14                  The Tribunal's conclusion that it "is not satisfied as to the veracity of the applicant's claims as to the cause of his father's death" was clearly enough, in my opinion, not only arrived at by a bare rejection of the applicant's claims, but also because they were corroborated only by people close to him.  The claim which was being rejected was that the father's detention and assault was the result of police "making enquiries about the whereabouts of the applicant".  The Tribunal made that clear.

15                  However, the Tribunal's reasoning was predominantly directed to the proposition that it was very unlikely that the police would have any present interest in the applicant.

16                  Thus this was not a case of refusal to accept an applicant only because the applicant had not corroborated his account, but, rather an instance of a weighing of the applicant's own evidence and evidence corroborating it against other evidence.  The Tribunal evidently found the latter preferable.  Again, others might not have reached that conclusion but legally that is irrelevant.

17                  In my view the foregoing disposes of the suggestions that there was no adequate compliance with the Tribunal's duty under s 430(1)(c) and (d) to set out findings on material questions of fact.  It was open to the Tribunal not to accept claims made, for reasons given, without going on to find positively that those claims were untrue.  That is what happened here.

Failure "rationally to consider" evidence

18                  It is not a ground for review that the Tribunal "failed rationally to consider the evidence about this matter":  Minister for Immigration & Multicultural Affairs v Epeabaka [1999] FCA 1.

Duty to inquire

19                  The next question is whether the Tribunal had, in this case, a duty to inquire further as to the circumstances of the father's death before rejecting the applicant's evidence.  It is now accepted that, at least in some cases, as a matter of administrative law generally, a tribunal ought not find adversely to an applicant without inquiring further: Luu v Renevier (1989) 91 ALR 39 and Minister for Immigration and Multicultural Affairs v Singh [1997] FCA 355.  The "underlying rationale", according to Luu is that, in some circumstances, a decision so taken will be so unreasonable that no reasonable person could so decide (see Luu at 50 and s 5(1)(e) and s 5(2)(g) of the Administrative  Decisions (Judicial Review) Act 1977 (Cth).  Necessary conditions to the enlivening of the duty are that it be (i) clear that further material is readily available, which (ii) is centrally relevant to the decision to be made:  Prasad v Minister for Immigration & Ethnic Affairs (1985) 6 FCR 155.

20                  If, as Luu would have it, a supposed breach of that duty to inquire is but a special case of Wednesbury unreasonableness, it is not a ground upon which an application for judicial review may be made to this Court:  see s 476(2) of the Act.  Wednesbury unreasonabless is not, however, the only source of a duty to inquiry further.  In Cho I held that the purposes and express powers of the Tribunal gave rise to an implied obligation to exercise those powers, including the power to inquire further, in very limited circumstances, namely where:  (a) there was a substantial risk of unfairness, of a kind sought to be avoided by the statute, and; (b) the prospects of the Tribunal arriving at the correct and preferable decision are demonstrably threatened.  In effect, I considered that Parliament should not be taken to have intended a power to inquire further, in refugee cases, to be a dead letter.  Failure to exercise such powers when it is plainly proper to do so may also amount to a constructive failure by the Tribunal to exercise its jurisdiction: see Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247.  On appeal my decision was reversed, different issues having been raised.  The majority (Tamberlin and Katz JJ) did not reject my analysis on this point.  Sackville J was evidently unimpressed by it.  I have reconsidered the matter, in view of Sackville J's reasons, but do not feel persuaded, with respect, to resile from the views I expressed in that case.  This is not the occasion to explain why, since on the facts of this case, as will appear, my approach would not avail the applicant.

21                  It is not shown that there is reasonably available material that would clear up the question of whether and, if so, why the applicant's father was detained and injured by the police.  Only the police, and the applicant's mother and the family friend were present when he was allegedly arrested.  If the police had done wrong and were seeking out the applicant, they would be unlikely to admit it.  There was no suggestion that other material, for example, records of a proceeding like our coronial inquest, could readily be adverted to.  Neither the conditions suggested in Prasad for a general administrative law duty, nor those suggested in Cho for the enlivenment of an implicit statutory duty in the case of the Tribunal, existed.

22                  Accordingly, a duty to inquire further did not, in my opinion, arise in this case.

Requirement for corroboration

23                  In the circumstances I have outlined, the Tribunal did not, as alleged, "erroneously require corroborating evidence" or impose an onus of proof on the applicant.  The Tribunal rejected some evidence, for reasons given, and accepted other evidence.  The accepted evidence pointed, in the Tribunal's view, against fear held by the applicant being "well-founded".

"What if I am wrong?" test

24                  The final question is whether the Tribunal "erroneously failed to apply a 'what if I am wrong?' test" about the applicant's father's death.  That question can be paraphrased :  did the Tribunal fail to consider whether there was a "real chance" that the applicant would be at risk of persecution because of continued police interest in him, despite the rejection of the claim that his father had died because of such ongoing police interest.  In some circumstances it is necessary to take into account the chance that a rejected assertion by an applicant for refugee status was true: Minister for Immigration & Ethnic Affairs v Guo (1997) 144 ALR 567 and Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 160 ALR 24. As Merkel J said in Paramanthan at 52 - 53:

"It can be seen from the foregoing that consideration of whether a certain finding of fact was or might be wrong:

·        is mandatory in respect of facts found on the basis that they are ‘slightly more probable than not’ if the facts are those relied upon for concluding that an applicant has not been punished or harmed for a Convention reason;

·        is unnecessary when the RRT has no real doubt that its findings in that regard are correct;

·        has a varying applicability in cases lying between the two situations stipulated above."

25                  Here, the Tribunal member expressed himself in terms that suggest he felt it very unlikely that the applicant's (and his mother's, and the family friend's) account of the circumstances in which his father was detained and died was true.  Indeed the Tribunal evidently felt it so unlikely that he could confidently reject their testimony.  The inference seems to be that he had no real doubt about that matter.  Therefore he had no duty to consider the case on the basis that there was a real chance that the police were looking for the applicant.

Disposition

26                  It follows that the application must fail.  It will be dismissed, with costs.

Associate:

Dated:              15 September 1999