FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1706

MIGRATION - application for review on the ground of an error of law, s 476(1)(e) Migration Act 1958 (Cth) - alleged imposition of a more stringent onus of proof than that required by law - Tribunal had little or no regard to several documents the applicant submitted to it on the basis that the materials could not be “unequivocally authenticated” and were merely photocopies - Tribunal took into consideration misspellings in official documents and variations in the applicant’s name appearing in those documents, to find that the documents were not authentic or had been tampered with - whether Tribunal’s reasons suggested the imposition of an improper standard of proof.

MIGRATION - application for review on the ground of an error of law, s 476(1)(e) Migration Act 1958 (Cth) - contention that Tribunal erred in failing to consider whether the applicant had a well-founded fear of persecution for a Convention reason in respect of the whole of India, away from the Punjab.

Migration Act 1958 (Cth) ss 36(2), 65, 476(1)(e), 476(1)(g), 476(4)(b)

Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 followed

Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 followed

Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994)

52 FCR 437 applied

Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 followed

Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 followed

RANA SINGH v MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

S 30 OF 2000

MANSFIELD J

27 NOVEMBER 2000

ADELAIDE

THE COURT ORDERS THAT:

1.                  The application be allowed.

2.                  The application for review be remitted to the Tribunal, differently constituted, to be redetermined according to law.

3.                  The respondent pay to the applicant costs of the application to be taxed.

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

REASONS FOR JUDGMENT

1                     This is an application for review of a decision of the Refugee Review Tribunal (“the Tribunal”) given on 10 March 2000.  The Tribunal affirmed a decision of a delegate of the respondent given on 2 September 1997 refusing to grant to the applicant a protection visa under the Migration Act 1958 (Cth) (“the Act”).

2                     It is a criterion for the grant of that visa that the delegate of the respondent, and on review the Tribunal, be satisfied that the applicant is a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) (“the Convention”):  see ss 36(2) and 65 of the Act.  In practical terms, in the present circumstances, it was necessary for the applicant to satisfy the delegate of the respondent, and on review the Tribunal, that he was 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.”

That is the definition of “refugee” in Article 1A(2) of the Convention.

3                     The applicant is a citizen of India.  He arrived in Australia on 25 March 1996 on a business visa issued on 14 March 1996.  He applied for a protection visa under the Act on 9 April 1996, soon after his arrival in Australia.

the claim

4                     The applicant was born on 15 April 1960 and was brought up in Lallian in the Punjab.  He said his family was Amritdari Sikh.  He underwent secondary schooling to 1975.  Thereafter he worked as a self-employed farmer in Lallian or near Lallian until he left for Australia.  He married in 1980, and has a wife and three sons who still live in India.

5                     In 1993, the applicant obtained a passport in the name of Rana Singh, although he told the Tribunal that his name was really Kunden (or Kundan) Singh.  In 1994, he went to Moscow for a period of three months allegedly as a fugitive from the police harassment.  He then returned to Lallian where he remained until March 1996 when he came to Australia.

6                     The applicant told the Tribunal that he was not a political leader and was not himself involved in politics.  He claimed to be a refugee because of imputed political beliefs.  That imputation came from the activities of his father as a member of the Akali Dal political party (now in coalition government in Punjab) and as a Sikh agitator.  He said his father was engaged extensively in protest activities, including against emergency rule, on behalf of the Sikhs for many years and was deeply involved in Sikh politics.  As a result, he claimed that the family as a whole was suspected of being deeply involved in Sikh politics and being associated with an armed Sikh terrorist group.  He said that his brother Amarjit Singh had been arrested by police in 1992 and was still in prison in India.  His father was arrested and tortured by the police, and when he managed to escape he fled to the United Kingdom in 1993 where he remains.  He claimed that he too had been arrested and tortured on a number of occasions, including when he returned from Moscow in 1994.  He left India to protect himself from further persecution because he was scared of the police.

grounds of review

7                     The principal ground of review argued for the applicant is that the Tribunal erred in law in applying the test of whether the applicant had a well-founded fear of persecution on the basis of his imputed political opinion.  The nature of that test was explained by the High Court in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (“Guo”) and in Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (“Chan”).  It is acknowledged that the Tribunal correctly set out that test in the preliminary part of its reasons for decision.  However, it is contended, in the purported application of that test, the Tribunal then imposed a more stringent onus of proof upon the applicant and so, in fact, incorrectly interpreted the applicable law:  s 476(1)(e) of the Act.

8                     It was also contended that the Tribunal erred in law by failing to consider whether the applicant had a well-founded fear of persecution for a Convention reason in respect of the whole of India away from the Punjab.  The argument ran that the Tribunal, in considering the alternative hypothesis (which it did not accept) that the applicant had a well-founded fear of persecution in the Punjab by reason of his imputed political opinion, considered whether it would not be unreasonable for the applicant to relocate to another part of India.  In expressing the question that way, the Tribunal was applying the decision of the Full Court in Randhawa v Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 (“Randhawa”).  It was contended that the Tribunal, in considering whether the applicant’s claimed fear of persecution in other parts of India was well-founded, erred in determining that question by asking whether it was reasonable for the applicant to relocate having regard to his fear of persecution, rather than asking whether that fear was well founded.  In Singh v Minister for Immigration and Multicultural Affairs [2000] FCA 1014 at [30] I said:

“The relocation principle becomes relevant where a putative refugee is found to have a well-founded fear of persecution for a Convention reason in respect of a region only of the country of nationality.  It then becomes relevant to determine whether, in respect of the country of nationality as a whole, the putative refugee could and would reasonably be expected to relocate to another area of that country.  If the putative refugee claims to have a well-founded fear of persecution for a Convention reason in respect of the country of nationality generally, the delegate of the respondent, and on review the Tribunal, must address that claim (unless some other relevant provision of the Act or the Migration Regulations, or of the Convention operates so as to make that inquiry unnecessary).  It is only if the decision maker rejects that claim, except in respect of some particular region of the country, that the relocation principle arises.  The putative refugee is entitled to have the claim to have a well-founded fear of persecution in relation to the country of nationality determined in accordance with the decisions of the High Court in Chan and Guo.”

9                     It is convenient to deal with the latter contention at this point.  In my judgment, the Tribunal did not fall into the error alleged.  It positively rejected any claim that the security forces in India would seek out the applicant if he were to resettle in another part of India away from the Punjab.  It is clear from that finding that it reached the view that there is no real chance that the applicant faces persecution in another part of India if he were to relocate.  Consequently, in my view, it did properly apply the test whether the applicant has a well-founded fear of persecution for a Convention reason in other parts of India, in accordance with the decisions in Guo and Chan.

10                  However, I do not consider that the decision that it is not unreasonable for the applicant to relocate to another part of India is itself an independent reason why the Tribunal’s decision should be sustained, even if the primary contention for the applicant is upheld.  That is because the question of relocation was addressed by the Tribunal upon the basis of its findings that the applicant does not have either an actual or imputed political profile, and that he is of no interest to the authorities.  It is those findings which the primary contention challenges.  If the contention is successful, the foundation for the Tribunal’s conclusion that it would not be unreasonable for the applicant to relocate to another part of India would also have been successfully challenged.

11                  The other ground of review invoked by the amended application and in the written outline of the applicant’s submissions, based on ss 476(1)(g) and 476(4)(b) of the Act, was not separately pursued at the hearing.  Counsel for the applicant treated that ground of review as, in effect, being subsumed into the primary contention.

the tribunal’s reasons and the primary contention

12                  Following the application to the Tribunal for review of the delegate’s decision, on 7 October 1999 the Tribunal invited the applicant to provide further information as to his identity.  One issue which the delegate of the respondent had referred to in his decision was that the applicant presented his application in the name of Rana Singh but also used the name Kundan Singh at one point when setting out in his application the reasons why he feared returning to India.  In response to the delegate’s request, the applicant provided to the Tribunal, inter alia a warrant of arrest dated 30 August 1999 directed to Kundan Singh Gill, (“the warrant”), a letter from an advocate of the High Court of the Civil Court of Phillaur, Manindar S Chavan, dated 25 September 1999 (“the letter”) and an affidavit of Surjit Singh also dated 25 September 1999 (“the affidavit”).  In its findings, the Tribunal first addressed the genuineness of those three documents.

13                  It noted that the warrant was issued against Kundan Singh Gill, and that the applicant had not previously used the name Gill.  It noted also that the warrant did not contain the name of the executing officer (as was provided for in the form, and as country information indicated was the norm), and that the name of the person against whom the warrant was issued and the nature of the offence were each put on the wrong lines, transposing one to the other.  It also noted that the document is a poor quality photocopy.  It therefore did not accept that the warrant was a genuine document.  It described the warrant as “internally inconsistent and flawed”.  Later in its reasons the Tribunal made it clear that it positively found that the warrant is not genuine.

14                  The Tribunal gave an additional reason for rejecting the warrant as having probative force.  It said:

“The Tribunal notes that the alleged warrant is a photocopy.  In relation to photocopies, the Tribunal observes that in such documents it is a simple matter to make substitutions and alterations.  In addition to being unable to place any weight on the warrant because it is internally inconsistent and flawed, the Tribunal is unable to place any weight on the above document for the additional reason that it is photocopied, and cannot be unequivically authenticated.  The Full Federal Court (Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ) in MIEA v Singh (1997) 144 ALR 284 at 291 observed that there is no general rule to the effect that the Tribunal is under a duty to verify the authenticity of such documents.  In addition, the Tribunal does not accept that because a copy is notarised, the original is a genuine document.”

15                  In Sakhbir Singh v The Minister for Immigration and Multicultural Affairs [2000] FCA 1705, a decision also delivered today, I have made some observations about the correctness of the Tribunal’s rejection of the warrant for the reason that it is photocopied and “cannot be unequivocally authenticated”.  I will not repeat those observations.

16                  I do not consider that the imposition of that hurdle to the warrant being accepted as genuine, namely that it be “unequivocally authenticated” in this matter, amounts to reviewable error on the part of the Tribunal.  That is not because the imposition of that test would not be erroneous.  In my judgment, it would.  If applied to all evidence, it would impose on a visa applicant a burden which was impossible to attain and would not reflect the proper application of the question predicated by ss 65 and 36(2) of the Act and Article 1A(2) of the Convention.  It is because, in this particular matter, the imposition of that test of acceptability was only an alternative reason of the Tribunal for rejecting the warrant as not genuine.  It had decided, according to its reasons, that the warrant was not to be given any weight for separate reasons before making the general observations about its attitude to photocopies.  In this instance, those other reasons stand discretely.  The Tribunal’s reasons make it clear that that particular part of its reasons was not a step in a chain of reasoning but for which it would not, or may not, have concluded that the warrant was not genuine.

17                  The Tribunal also gave no weight to the letter.  It was addressed to Kunden Singh Gill, and was in the following terms:

“I received your letter dated 19.9.99 ref nil in which you requested to know the actual and factual position of your case and your future in case if you return.

Istly I tell you that court of Judicial Magistrate Phillaur has issued a warrant of arrest against you and police of Phillaur Police station is running here and there in your search.  Even Police can kill you if you becomes available here in false police encouter.  Police is harrasing your parents and wants to know your whereabouts.  And as I think the court proceeding it might have declared you proclaimed offender.  And in case if you are arrested, your punishment is sure into the hands of court.  And you can be punished/sentenced for more than 5 years.

Lastly I tell you that you are advise to save your life from the cruel clutches of court and police and I shall pen you a letter when position shall be in your favour”.

(Spelling and grammatical errors have not been corrected).

18                  The Tribunal noted a number of features of the letter which led it to place no weight upon its contents, and to describe it as “an advocacy letter written on instructions, not a factual letter”.  They were:

·                    the reference to police harassing the applicant’s “parents”, although the applicant told the Tribunal that his father was in the United Kingdom;

·                    it referred to the existence of the warrant, but the Tribunal had found the warrant was not genuine;

·                    it is vague and gives no detail such as dates;

·                    it contains many errors of spelling and grammar, including misspelling the name Kundan as “Kunden”, which it regarded as odd in a letter allegedly from “a learned advocate of the High Court and the Civil Court”; and

·                    the document also appears to be a photocopy and “therefore subject to the problems associated with photocopies,” as it had described above.

19                  The Tribunal next dispensed with the affidavit.  It is in the following terms:

“I, Surjit singh, Sarpanch of village Lallian, teh:  Phillaur, Distt: Jalandhar, (Pb.)/India, do hereby solemnly affirm and declare on oath as under: -

1.        That I know Sh: Kundan Singh Gill s/o Tara Singh personally when he is permanent of my village.  This family is Sikh by religion and all the Sikh are internally declared extremists by the Congress Party which was ruling party in India.  So that life of said Kundan Singh Gill is not safe here.

2.         That in year 1995 said Kundan Singh Gill was arrested by the police and on my assurance was released.

3.         That again police lodged one criminal case against him and still police is raiding his house inconnection with his search and his parents are under harasment of police.”

(Spelling and grammatical errors have not been corrected.)

20                  The Tribunal again noted that the document referred to harassment of the applicant’s parents, although he had said that his father was in the United Kingdom.  It next noted that it had found the warrant was not genuine.  Finally it noted that the document was a photocopy and subject to the problems associated with photocopies.  For those reasons it said it was unable to place any weight on the affidavit.

21                  Separately, the Tribunal noted that documentation in India is of little intrinsic value as document fraud is rampant, including official forms and duplicate official seals.

22                  The Tribunal next referred to the use of the name “Gill”.  It was not used in many documents, including the original application for review; it noted that that name was used only on documents on which the Tribunal was unable to place any weight.  It found that the claims regarding the alleged surname were not made in a timely fashion and were inconsistent with the other documentation.  It accordingly did not accept that “Gill” is the surname of the applicant.  It is unclear whether the consequence of that conclusion is that neither the warrant, nor the affidavit, nor the letter were of or concerning the applicant, but concerned some other person.  In the case of the letter and the affidavit, that would be a surprising finding, and it has not expressly been made.  In each case, those documents appear to have been provided in response to a specific request by the Tribunal, albeit provided to the applicant a little earlier.  There is no apparent reason why, to complicate his claim, he would include an additional surname.  It is unclear whether the consequence of that conclusion is that the Tribunal found that the letter and the affidavit were forged by the applicant and did not represent documents from the identified sources.  There is nothing before the Court to indicate whether the originals of the affidavit and of the letter which, if genuine documents, would clearly be in the custody of the applicant, were sought by the Tribunal.  Nevertheless, it has discounted the letter and the affidavit in part because they were provided as photocopies.

23                  At this point in its reasons, the Tribunal had rejected the warrant as not genuine, and had determined to place no weight on the letter or the affidavit.  It has also not accepted that “Gill” is the surname of the applicant.  However, it did accept that the applicant is known both by the name Rana Singh and the name Kundan Singh.

24                  The Tribunal only then turned to consider the details of the applicant’s claims.  It noted that the period immediately following the assassination or death of Chief Minister Beant Singh in the Punjab was a period of intense interest into the activities of Sikh extremists.  It therefore regarded it as implausible that the applicant would have procured the identity card dated 28 August 1995, which he produced to the Tribunal, at that time if he were in fear of the police.  It regarded his claims that his family home was raided following the death of the Chief Minister, at which time his brother-in-law was arrested and killed (no finding was made as to whether that had occurred), and that the applicant himself was also arrested and only released on payment of a bribe, as not accurate.  The Tribunal noted the evolution of the applicant’s evidence in response to questions of the Tribunal raising information tending to contradict his version of those events.  In his original application, he had not referred to or made the claim that he himself had been arrested following the death of the Chief Minister.  The Tribunal found that claim as implausible bearing in mind its recent invention, and the time of the procuring of the identity card, and the fact that another organisation, Babbhar Khalsa, had claimed responsibility for that killing.  It also described his claims from time to time as vague and lacking in detail.  It regarded his claims of being imprisoned, tortured and interrogated but then released at about that time as improbable, given the extent of terrorist activities and extreme measures taken by the security forces at that time to counter those activities.  Even if those events had occurred as the applicant alleged, the Tribunal concluded that:

“… they would illustrate no more than that the applicant was of little or no interest to the authorities, and that he was not seen by the authorities as a threat …”

25                  The Tribunal found that he was not seen by the authorities as a threat.  It then said:

“The applicant gave oral evidence that there was danger to his life in India from the police.  On the applicant’s own evidence he was questioned and ill treated by the police on several occasions, including following the death of the Chief Minister.  If the Tribunal were to accept this evidence, the police had ample opportunity to kill him if they so wished.  He has not provided evidence of any attempt to kill him.  For this and all the above reasons the Tribunal does not accept this claim”.

26                  That passage, the applicant submitted, also demonstrated an error of law.  It is capable of being construed as meaning that the absence of an attempt to kill the applicant means that he was not arrested as a perceived Sikh activist and mistreated for that reason.  Conduct amounting to persecution does not necessarily require conduct involving an attempt to kill a visa applicant.  It may be constituted by conduct falling significantly short of that.  See for example the observations of McHugh J in Chan at 427 and 429-431.  As his Honour pointed out at 430, “persecution” need not involve being threatened with loss of life or liberty.  See also per Toohey J at 405 who agreed with McHugh J on that matter.  It does not follow from the fact that the applicant was not killed, or that the authorities did not attempt to kill him, that he was not arrested and mistreated.  The respondent contended, correctly, that the reasons of the Tribunal should not be carefully perused with an eye keenly attuned to the perception of error:  Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 274-277.  It was submitted that this passage in the Tribunal’s reasons was responsive to the applicant’s claim that “there was danger to his life” if he were to return to India, and that the Tribunal’s comment means no more than that there is no such danger to his life.  More importantly, however, the Tribunal does not in that passage indicate that it has accepted the applicant’s claims of having been arrested and mistreated by the authorities.  It had already rejected those claims.  The particular comment criticised by the applicant is based upon the alternative hypothesis that those claims were accepted.  It is intended, as I understand it, to indicate that, even in that event, the applicant did not have a well-founded fear that his life itself would be at risk if he were to return to India.  It is responsive to a particular claim only.  In my judgment, it does not demonstrate a misapprehension by the Tribunal of the degree of harassment which may constitute persecution or that the Tribunal required evidence that there had been attempts to kill the applicant before the Tribunal would be satisfied that he has a well-founded fear of being persecuted for a Convention reason.

27                  There was further material to which the Tribunal referred in support of its overall conclusion that the applicant did not have a well-founded fear of persecution for a Convention reason.  The applicant obtained a passport in May 1993.  He told the Tribunal he did so in the name of Rana Singh because he could not safely get a passport in his own name and he was in a hurry to get a passport.  However, he did not leave India for a further period of twelve months.  The Tribunal did not accept that there was a need to obtain a passport in a false name.

28                  The Tribunal also addressed his leaving for Moscow for four months in May 1994 allegedly because of police atrocities against him and his brother Sukhbir.  The Tribunal said:

“Despite these claims, the applicant returned to India from Moscow 4 months later in September 1994 and in his original application affirmed by him as true and correct at the hearing, he continued to give his address as his home village.  When this was put to the applicant he responded that he used to live in Lallian but started to live with his in-laws but confirmed that he was still involved in farming.”

In fact, in the original application the applicant said that, on his return from Moscow, he started to live in the village Shanbar with his brother-in-law, but that place was then raided and he escaped, and earlier, that he had left his home and started to live with his in-laws at Rajpura although he was detained by the police from time to time at that place also.

29                  The Tribunal found that it was not plausible that the applicant would have remained in India for a further eighteen months following his return from Moscow until March 1996 if he feared persecution, given that he had a current passport.  It therefore regarded that as further evidence that he was of no interest to the authorities.  It concluded that, if the police were interested in him, they would have been able to find him during this period.  It is not clear why the Tribunal expressed itself in that way.  The fact is that the applicant claimed that the police were interested in him, and were able to find him during this period.  The applicant claimed that it was the further harassment during that period that ultimately led to his exodus.  However, it is clear that the Tribunal ultimately rejected the applicant as a credible witness, and it found that he was not of interest to the authorities as he claimed.  It must be, therefore, that the Tribunal really was indicating that if the police had been interested in the applicant, the adverse consequences to him in that eighteen month period would have been so drastic as to have prompted him to leave India to seek refuge much sooner.

30                  That approach seems to be reflected from a different perspective when, ultimately, the Tribunal came to consider the claims about the activities of the applicant’s father and how he was perceived by the authorities.

31                  He was a member of the Akali Dal political party.  As the Tribunal noted, that is a legal party which has been able to contest elections and has significant electoral support.  Following the 1996 Punjab elections, it formed a government in coalition with another party.  There is no reason, the Tribunal found, why routine or passive support for that party (or imputed support for that party) would attract the adverse attention of the authorities.  The applicant told the Tribunal that his father obtained a passport in his own name and left the country legally.  That was in 1993.  The Tribunal said:

“If the father was taken by the police and ill-treated, he was not held by them but was released, and there is no evidence before the Tribunal that he was ever charged.  Given the extent of both the terrorist activities and the extreme measures taken by the security forces at that time to counter these activities, as described in independent country information below, the Tribunal concludes that, for these reasons, even if the Tribunal were to accept that his father was ill treated, the above fact would illustrate no more than that the applicant’s father was of little or no interest to the authorities and that he was not seen by the authorities as a threat, and the Tribunal so finds.”

32                  It therefore concluded that the applicant’s father was at most a supporter of the Akali Dal who may have participated in rallies, but did not have a high profile and was not of interest to the police as claimed.

33                  Overall, the Tribunal reached an adverse view about the applicant’s credit.  It found that he had progressively attempted to exaggerate, embellish and vary his evidence over time to meet the circumstances as they have arisen.  It did not accept the applicant as a credible witness and found that his claims lacked credibility.

34                  It accepted the independent country information that persons who do not have a profile as Sikh activists, and even those who merely provide shelter or food, as claimed by the applicant and his father, are not considered to be high profile activists or of interest to the authorities.

35                  Thus the Tribunal found that the applicant does not have a political profile, actual or imputed.  It found that he has not been of interest to the police as claimed.  It found further that the additional claims made by or on his behalf such as the warrant, the letter and the affidavit were provoked by the decision of the delegate to reject the applicant’s claims.  It was not satisfied that he had a well-founded fear of persecution for a Convention reason.

36                  It is possible to be critical in some respects of the Tribunal’s reasons for its decision.  Its reasons for deciding that “Gill” is not the surname of the applicant are not very persuasive to my mind.  It is not clear what findings the Tribunal made as a consequence of that conclusion.  It appears to have misapprehended the applicant’s original application about where he lived upon his return from Moscow, although as I noted above that may not matter much because the applicant said that he was arrested and mistreated during that time.  That misapprehension however tends to negate the Tribunal’s conclusion that, because he remained in his home village, he was not really fearful of the authorities or did not try to avoid them.  The Tribunal was also critical that the applicant said he could not remember many of his original claims because they were in English, because he claimed a knowledge of English in his application; it is apparent from his written answer to why he left India and what he fears may happen to him if he returns to India that his command of English is moderate only.  However, all those matters are really matters for the Tribunal.  The Court is not engaging upon a review of the Tribunal’s decision on the merits.  It is for the Tribunal to identify what matters it regards as significant, and what weight to attribute to them.  An error of fact of itself does not give rise to a ground of review under s 476(1) of the Act.  I do not consider that matters of the kind referred to above do give rise to a reviewable error under s 476(1) of the Act.

37                  The applicant pointed to some other matters which he submitted, tend to indicate that the Tribunal failed properly to consider whether the applicant has a well-founded fear of persecution for a Convention reason.  It gave no weight to either the letter or the affidavit in part because they were photocopied documents.  I understand the Tribunal’s reference to the “problems associated with photocopies” as being a reference to its discussion on that topic in relation to the warrant, as set out in par 14 above.  As noted, it indicated that it would give no weight to photocopied documents unless they were “unequivocally authenticated”.  That was not a view adopted in relation to these particular documents, having regard to their contents and surrounding circumstances; it was a view expressed as applicable to all photocopied documents.  It was one of the several reasons for giving no weight to the contents of the letter and the affidavit, and so must be taken to have operated upon the decision in that regard.  Both the letter and the affidavit are significant because, if accepted, they each purported to contain first hand information.  In the case of the letter, that was to verify the existence of the warrant and that the police were seeking to enforce it.  In the case of the affidavit, that was to verify the arrest of the applicant in 1995 as well as that the police were still seeking the applicant.  The finding of the Tribunal that Gill is not the surname of the applicant was itself based in part upon the fact that it placed no weight upon either the letter or the affidavit.  Clearly, the decision to place no weight upon that material also was significant as it otherwise tended to confirm matters which the applicant claimed, and in respect of which the Tribunal rejected his claims.  Those matters included that he had not been arrested in 1995 and that the police were still seeking him.

38                  In Guo, Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ at 574-576 explained the process by which the Tribunal came to a decision as to whether there is a real chance that a visa applicant will be persecuted for a Convention reason if that person were to return to the country of nationality.  The Tribunal generally should make findings about past events, and if those past events include adverse treatment by the authorities the motivation of the authorities in penalising the visa applicant in relation to those past events.  Those findings may then be used as the basis of the conclusion whether there is a real chance of future persecution.  Their Honours added at 574-575:

“The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable.  Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability - high or low - of their recurrence.  The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.

…

Determining whether there is a real chance that something will occur requires an estimation of the likelihood that one or more events will give rise to the occurrence of that thing.  In many, if not most cases, determining what is likely to occur in the future will require findings as to what has occurred in the past because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future.  It is therefore ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed concerning past events.”

39                  Later, in their reasons, their Honours added at 576:

“It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future.  If, for example, a Tribunal finds that it is only slightly more probable than not than an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution.”

40                  In this matter, the Tribunal has found that the applicant was not arrested and then mistreated in 1995, and then released.  It has also found that the warrant is not genuine, and that the authorities have not in the recent past been seeking the applicant.  Those findings are relevant to determining the chance that he may be arrested and mistreated if he were to return to India.  It has entirely discounted the prospect that those past events have occurred, in determining whether there is a well-founded fear of persecution.  And it has done so for the reason, inter alia, that evidence directed to those facts has not been unequivocally authenticated.  In my judgment, the application of that evidentiary test for the giving of weight to the letter and to the affidavit is not one which the Tribunal could properly apply to the determination of whether past events have occurred as claimed by the applicant.  To have applied that test involves the Tribunal having determined the degree of probability that those past events had not occurred on an incorrect basis, so as to have infected its determination of the chance that those events, or similar events, will occur in the future.  I have accordingly reached the view, in this instance, that the Tribunal has failed to determine whether the applicant has a well-founded fear of persecution for a Convention reason in accordance with the direction of the High Court in Guo and Chan.  I consider that its failure to do so amounts to an error of law, so as to enliven the ground of review under s 476(1)(e) of the Act.

41                  I am not satisfied that there would be no utility in remitting this matter to the Tribunal, differently constituted, for redetermination.  It is correct that the Tribunal also took the view that, even if (contrary to its finding) the applicant had been arrested and then released in 1995, the applicant would in any event not be at risk of persecution for a Convention reason if he were to return to India.  It referred to material in support of the conclusion that the applicant from 1995 was of no interest to the authorities.  However, it discounted evidence to the contrary, namely the letter and the warrant, upon a basis which I have concluded to have been erroneous.  Although there are reasons which the Tribunal identified why the applicant no longer has a well-founded fear of persecution if he were to return to India, even if he were arrested and mistreated in 1995, in my judgment that conclusion is not so clear cut that it disentitles the applicant from redetermination of his claim in the light of these reasons.  It is not for the Court to review all the material and to substitute for the Tribunal’s decision a decision on the merits.

42                  Accordingly, in my judgment, this application should be allowed.  I remit the application to the Tribunal for redetermination in accordance with the law.  The Tribunal, should be differently constituted for that redetermination.  I order that the respondent pay to the applicant his costs of this application to be taxed.

Associate:

Dated:              27 November 2000