FEDERAL COURT OF AUSTRALIA

Singh v Minister for Immigration & Multicultural Affairs [2000] FCA 1858

MIGRATION - legality of Refugee Review Tribunal’s decision affirming applicant’s ineligibility for asylum - where protection sought on account of applicant’s associations with opposition party in the Punjab, in circumstances where its members had been the object of terrorist attack - procedural validity of review where applicant not assisted by legal representation or interpreter - consideration of objective criteria for refugee status, and relevancy of internal protection principle - observations on Tribunal’s selective consideration of evidence - whether certain findings without evidential basis - currency of evidence

Migration Act 1958 (Cth) ss 420, 425, 427, 430, 476

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 Applied

Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 81 FCR 71 Applied

Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339 Applied

Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172 Applied

Cotofan v Minister for Immigration and Multicultural Affairs [2000] FCA 1042 Applied

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Cited

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 Cited

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Applied

Hehar v Minister for Immigration and Multicultural Affairs [1997] FCA 1427 Referred to

Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261 Referred to

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719 Referred to

“O” v Minister for Immigration & Multicultural Affairs [2000] FCA 265 Cited

Abdi v Minister for Immigration and Multicultural Affairs [2000] FCA 242 Applied

Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 Applied

Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507 Applied

DARSHAN SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

No QG 112 of 1998

KIEFEL J

BRISBANE

15 DECEMBER 2000

ON REVIEW FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

THE COURT ORDERS THAT:

1.         The application is dismissed.

2.         The applicant pay the respondent’s costs in the proceedings.

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

ON REVIEW FROM A DECISION OF THE REFUGEE REVIEW TRIBUNAL

REASONS FOR JUDGMENT

BACKGROUND

1                     These proceedings are brought pursuant to s 476 of the Migration Act 1958 (Cth) and follow the applicant’s unsuccessful attempts to be recognised as a refugee.  A delegate of the respondent rejected the applicant’s application for a protection visa on 11 April 1997, and an affirmation of that result followed the hearing of review proceedings by the Refugee Review Tribunal on 28 August 1998.  The applicant seeks an order that the Court set aside the Tribunal’s decision and remit his application to it for reconsideration according to law.

THE APPLICANT’S CLAIMS

2                     The applicant is an Indian citizen who arrived with his wife and two children in Australia on 11 September 1995.  He joins his sister in this country, though other family members including his parents and another sibling remain in Punjab, the place of his former residence in India.  Between 1988 and the time of his arrival in Australia the applicant established business associations in the Punjab, and was involved in the management of his father’s bus service and of his own interest in a separate transport business. 

3                     The applicant is a Sikh and has a history of membership of the Congress Party in the Punjab, as well as participation in the organisation and political activities of its youth limb since 1987.  Those associations assumed significance for his application before the Tribunal.  His commitment to the party was recognised by his formal appointment as District Vice-President of the party in 1989, and as State Secretary-General of the party’s youth limb in February 1991.  Monthly payments were received for this political service, although this appears to have been a supplement to income otherwise received from personal business interests.  His party responsibilities were said to have involved social work including participation in rallies, the encouragement of public support for the party’s policies, and travel within the Punjab and elsewhere in India, all of which contributed to the public’s recognition of him as a figure of political significance.

4                     His religious and political affiliations were identified as the reason for attracting adverse attention in the Punjab, and were said to account for the ongoing incidence of violence against others of similar political status.  Although religion is critical to the political identity of the applicant and his alleged persecutors, the reasons given for the applicant’s fears are restricted to politics.  Refugee status is not claimed on basis of a fear held because he is a Sikh, but rather because his political activities offend the extremist political ideologies of other Sikhs.  The applicant considered his liberal political and religious views placed him in opposition to more radical Sikh factions that supported the re-establishment of the Punjab region as a Sikh-only state.  Public expression of the Congress Party’s policy was said to have clashed with those of the Akali Dal party, and attracted the attention of its terrorist limb Babbar Khalsa.

5                     The applicant claimed that the reaction of the Babbar Khalsa to his participation in Punjab’s political life was hostile.  A number of verbal and written threats of violence, including death threats, received by the applicant and members of his family were thought to have been initiated by the terrorist group.  The threats were confined to the 8 month period preceding the applicant’s arrival in Australia.  Counsel for the applicant particularised the threats as including personal threats by members of the Babbar Khalsa against himself and his wife, several telephone calls to the applicant and members of his family demanding the applicant desist his association with the Congress party, and a written threat of death if that action was not taken.  The applicant relies upon the police protection afforded to him and his family as proving the legitimacy of the threats and their frequency.

6                     The applicant further relies on several incidences of violence suffered by other party members in 1994 and 1995 as support for his fear of political persecution if returned to India.

The tRIBUNAL’S DECISION

7                     The Tribunal accepted that the applicant gave a truthful account of his personal experiences in India.  In summary, it accepted the political allegiances contended for;  that other members of the Congress party were the target of terrorist assault;  that threats of the kind identified were in fact received periodically in the two years prior to leaving the Punjab;  and that the applicant’s fear of violence from Sikh militants was genuine.  The persuasiveness of the applicant’s personal profile was not, however, sufficient to determine refugee status.  His apprehensions as to future treatment were required by Article 1A(2) of the Convention relating to the Status of Refugees to be considered contextually, with reference to the general risk of harm encountered by the community in the region and elsewhere in the nation.

8                     In determining whether or not the applicant faced a real chance of persecution on account of his political opinion, the Tribunal was not persuaded of there being a general risk of political persecution or terrorist attack, nor that the anticipated threats would be tolerated by the current government.  Despite evidence of Congress Party members being targeted by terrorists in the Punjab, there was nothing to convince the Tribunal that the recent incidence of violent attacks was a general phenomenon.  The assassination of the Chief Minister of the Punjab in August 1995 was understood to be an isolated incident.  Politically motivated violence was not considered likely to recur on the same scale and support for terrorist activity in the Punjab had declined significantly since the early 1990s.  The member was also persuaded to this view by the lack of support by the current coalition government, which included representatives of the Akali Dal party, for the continuation of terrorist activities in the Punjab.  The election of the Akali Dal party in early 1997 and its authority to give practical effect to the political ideology of its constituents meant that violent attacks upon its opponents no longer has utility.  The Tribunal considered the fact that the Congress Party has no governmental power reduced its threat to the implementation of opposing political ideologies.

9                     The Tribunal concluded that the applicant did not face a real chance of Convention-related persecution in the Punjab, and consequently failed to meet the criteria for refugee status.

10                  Having assessed the objective grounds of the alleged fear of political persecution, the Tribunal went on to consider the practicality of relocation within India as an alternative to asylum abroad.  Some attention was given to this prospect despite it being superfluous to the determination of the applicant’s eligibility for refugee status, that question being resolved by the absence of an objective basis for the anticipated harm. 

11                  The Tribunal’s findings in this respect nevertheless assume some relevance on the review application, and add force to its view that asylum is not legally available to the applicant.  The Tribunal was persuaded that Sikhs may live without fear of frequent and systematic attack by militant groups in all Indian provinces.  Rare incidences of violent assault are arbitrary and do not target particular individuals.  The possibility of harm was negligible in circumstances where a reduction in public support for terrorist groups had decreased the effectiveness of terrorism and facilitated police control both in the Punjab and other regions of India. 

12                  The more immediate consequences of relocation for the applicant’s family life were also addressed.  Settlement in Australia, the applicant’s age and his family’s integration within the community through language and schooling were not thought to foreclose the possibility of effective re-establishment in regions of India outside the Punjab.  The Tribunal was convinced of the family’s potential to adapt to a new life elsewhere in India.  Family members were relatively young, were familiar with India, had family and business connections remaining in that country, and were fluent speakers of Punjabi, Hindi and English.  The relative ease with which the family had settled into the Australian community was considered to be persuasive of its adaptability and resourcefulness.  The Tribunal was satisfied that relocation outside the Punjab was not unreasonable, and presented a real opportunity for dealing with the applicant’s fears of harm.

13                  The combination of an absence of objective justification for the anticipated violence and the prospect of relocation outside the Punjab led the Tribunal to affirm the decision not to grant a protection visa.

GROUNDS OF THE REVIEW

Access To Assistance Of An Interpreter

Section 476(1)(a) Non Observance Of Procedures

14                  The applicant participated in proceedings before the Tribunal without the benefit of legal representation or an interpreter.  The absence of the latter is now identified as the foundation for a claim of procedural ultra vires made pursuant to s 476(1)(a) Migration Act 1958.  Particular attention is drawn to the alleged non-compliance with the statutory procedures articulated in ss 420 and 425 and 427.

“420    Refugee Review Tribunal’s way of operating

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

(2)       The Tribunal, in reviewing a decision:

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

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

“425    Tribunal must invite applicant to appear

(1)       The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

(2)       Subsection (1) does not apply if:

(a)        the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it; or

(b)        the applicant consents to the Tribunal deciding the review without the applicant appearing before it; or

(c)        subsection 424C(1) or (2) applies to the applicant.

(3)       If any of the paragraphs in subsection (2) of this section apply, the applicant is not entitled to appear before the Tribunal.”

“427    Powers of the Refugee Review Tribunal etc.

            …

(7)       If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with that person during his or her appearance proceed through an interpreter.”

15                  The applicant originally contended that his lack of proficiency in the language of the Tribunal and his unaided participation in proceedings before it placed him at a disadvantage such as prevented the conduct of the review being in accordance with s 420(2)(b).  The difficulty with the submission is that the High Court has refused to recognise the general requirements of s 420 as having the quality of “procedures” identified in s 476, and has stressed the lack of relationship between the two provisions:  Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577, 588, 594, 600.  The Court there adopted the reasoning of Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324; (1997) 81 FCR 71, where his Honour identified the terms of s 420 as objectives to be pursued, but not standards mandatory to each and every case.   Even if the member failed the standard by not adjourning and acquiring an interpreter to assist Mr Singh, error has not been occasioned in the manner contemplated by s 476.  The applicant’s supplementary submissions acknowledge this limitation.

16                  The applicant’s written submissions place some significance on his self-representation before the Tribunal.  He contends that it was incumbent on the Tribunal to adjourn to allow this disadvantage to be corrected.  I understand this submission to also rely on the justiciability of the objectives found in s 420.  It must fail on that account.

17                  The position in respect of s 425 is different and is resolved on the basis that the ambit of the provision extends to complaints about comprehension or the quality of interpretation in review proceedings.  The section reflects a concern that litigants are given an opportunity to appear before the Tribunal, and goes further to make limited prescription for the manner of that appearance. 

18                  Section 425(1)(a) was considered by the Full Court in Minister for Immigration and Multicultural Affairs v Cho (1999) 164 ALR 339.  The terms of the provision at that time were in a form substantially the same as the requirements now considered. Sackville J explained the connexion between s 425(1)(a) and procedural irregularities occurring in the course of the proceedings before the review tribunal (354-55):

“Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers.  It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence.  Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act.  As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act.  They plainly do not include the full panoply of procedural projections that may be available in other forums.”

19                  His Honour went on to consider the scope of the “opportunity” contemplated by s 425(1)(a) and found it to be concerned with facilitating the attendance of the applicant at the hearing for purposes of giving evidence.  The provision was primarily directed at ensuring that applicants were given timely notification of their entitlement to give evidence, and may have limited further consequences in terms of the conduct of the proceedings by the Tribunal.  His Honour suggested the refusal to hear evidence on a particular claim within the applicant’s knowledge was a rare of example of that further procedural irregularity contemplated by s 425(1)(a). 

20                  The conduct of proceedings without the assistance of proficient interpretation qualifies as part of that limited class of procedural error where the applicant is unable to give evidence.  This view was expressed by Kenny J in respect of s 425 in its previous form:  Perera v Minister for Immigration and Multicultural Affairs [1999] FCA 507.  It then provided that the Tribunal “must give the applicant an opportunity to appear before it to give evidence”.  Her Honour explained at [20] that:

“If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him.  The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist.  Thus, in my view, if an applicant for refugee status is unable to give evidence in English, the effect of s 425(1)(a) is to necessitate the making of a direction, pursuant to s 427(7), that communication proceed through an interpreter.  The terms of any such direction extend to the whole of the hearing and are not limited to the applicant’s evidence.”

21                  Recent determinations by single judges of this Court have accepted the relevance of her Honour’s reasoning notwithstanding the difference in wording between the previous and current versions of s 425(1):  Long v Minister for Immigration & Multicultural Affairs [2000] FCA 1172 per Mansfield J at [28]-[29], and Cotofan v Minister for Immigration and Multicultural Affairs [2000] FCA 1042 per Emmett J at [34].  Both cases acknowledge the potential for procedural error where the Tribunal does not provide the applicant with an interpreter to assist the presentation of his or her claims.  In Cotofan, his Honour indicated that it is incumbent on the Tribunal to provide assistance to those litigants unable to appear and take advantage of statutory rights to articulate their own position.  Failure to provide a competent interpreter for a non-English speaking applicant may constitute a ground of review pursuant to s 476(1)(a) where the rights protected by s 425(1) would otherwise be compromised.  His Honour said [33]:

“If a person appearing before the Tribunal to give evidence is not proficient in English, the Tribunal may direct that communication with the person during his appearance receive an interpreter.  If not proficient in English, the applicant is effectively unable to exercise his right to give evidence unless an interpreter assists him.  The Tribunal is unable to give the applicant an effective opportunity to appear before it to give evidence unless it provides an interpreter to assist.”

22                  Mansfield J made a further observation in Long, that failure to provide access to proficient interpretation in appropriate cases would mean that the Tribunal lacked jurisdiction to continue the review (s 476(1)(b)).

23                  The absence of an interpreter will not always constitute error.  The question is whether there is a connexion between the absence and the expression of rights protected by s 425, and whether those rights have been significantly impeded.  In this case, there is nothing to suggest that language difficulties prevented Mr Singh comprehending the full significance of the member’s questions, and communicating arguments in response.  The transcript is proof that the verbal exchange was disjointed, but not to an extent that communication could be said to have been compromised.  Mr Singh’s answers are responsive to the Tribunal member’s questions, generally coherent, and consistent with the written claims contained in his application and with additional evidence sent to the Tribunal on 17 August 1998.  There is no suggestion that either the applicant or the Tribunal member became confused in the course of proceedings, or that the applicant lacked confidence in his ability to participate in the proceedings by use of English.  He declined an offer of assistance with interpretation made by the member at the commencement of the proceedings.  These factors were identified in Perera [41] as relevant to the effectiveness of the interpretation, and are relevant here in establishing that the opportunity given to the applicant to appear and present arguments was adequate.

24                  Section 427(7) does not assist the applicant in establishing procedural error.  The application mistakenly identified s 366C(3) of the Act as the relevant provision.  That provision is not relevant to proceedings before the Refugee Review Tribunal, and requires different considerations on account of its different wording.  Section 427(7) makes provision for the appointment of an interpreter at the discretion of the Tribunal in circumstances where the applicant is not proficient in English.  The mandatory/directory distinction is no longer useful to absolve the Tribunal of error for failure to appoint an interpreter: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355.  The preferred test is whether the failure to appoint an interpreter, in exercise of the power conferred by s 427(7) of the Act, was intended to invalidate the decision which in fact followed.  Consideration of the language of the provision and the scope and purposes of the Act suggest, in my view, that that cannot be the case.  The use of the word “may” indicates that s 427(7) does not create an obligation or a direction to act, but rather confers a power to be exercised at the Tribunal’s own discretion.  Error is not established because the Tribunal declines to appoint an interpreter.  The member was alert to the prospect of appointment, requested the applicant’s opinion as to the utility of assistance, and consequently determined to continue the proceedings in accordance with the view expressed.  The general objects of the Act do not indicate that a contrary position was intended, and that the failure to exercise the discretion constitutes procedural ultra-vires.

25                  The absence of procedural irregularity removes the possibility of consequential errors of the type alleged by the applicant.  The member’s conduct in respect of the provision of interpretation facilities, does not demonstrate that the Tribunal acted without jurisdiction (s 476(1)(b)), that its decision was unauthorised (s 476(1)(c)), or that its interpretation and application of the law miscarried (s 476(1)(e)).

Section 476(1)(d) Improper exercise of power

26                  An additional contention advanced on behalf of the applicant relies upon a finding of error under s 476(1)(a) for failure to proceed with an interpreter.  It is alleged that the procedural non-compliance contended for also constitutes an improper exercise of power pursuant to s 476(1)(d).  Apart from any difficulty created by the absence of procedural error, such error on its own, if it did exist, is outside the contemplation of s 476(1)(d). 

27                  The ground of improper exercise of power is further particularised by subs (3), the contents of which are directed at various instances where objectivity fails, and a discretion exercised with some unauthorised consideration in mind.  Subsection (3)(a) refers to the exercise of decision-making powers for purposes other than those for which the power is conferred.  The applicant has not identified any collateral purpose responsible for the member’s decision to proceed without an interpreter.  A finding of procedural ultra-vires does not in all instances supply the additional criteria required for error pursuant to s 476(1)(d).  This ground fails.

Section 476(1)(e) Incorrect Interpretation of Legal Criteria

28                  Section 476(1)(e) identifies error as including an “incorrect interpretation of the applicable law”.  The applicant alleges that the Tribunal misunderstood the legal criteria for refugee status, and particularly those relevant to assessing the origin of the anticipated harm and whether it warrants asylum.  Article 1A(2) of the 1951 Convention relating to the Status of Refugees identifies refugees as having a “well-founded” fear of harm.  The words “well-founded” add an objective element in the form of the “real chance” test to an otherwise subjective inquiry: Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379.  The error alleged is that the Tribunal misunderstood the limits of the “real chance” test, and wrongly required the applicant’s subjective fear to be proved by evidence of personal experience.  The Tribunal’s reasons convey as significant its sense of minimal harm suffered by the applicant and his family.  The Tribunal notes that:

“apart from telephone and written threats, the family did not indicate that anything in fact happened to them in the 21 months between when they first feared for their safety, and when they left the Punjab.” 

29                  I take it that the applicant relies on this phrase with respect to the type of evidence required by the Tribunal.

30                  The Tribunal’s reasoning does not disclose any error.  The Tribunal explained the “objective” element of the test for refugee status: 

“A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or if it is mere speculation.  A “real chance” is one that is not remote or insubstantial or a far-fetched possibility.  A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.”

31                  A correct statement of the law does not however conclude the question whether that interpretation was in fact applied, but in this case the reasons disclose that it was.  The applicant’s claims of personal harm were considered.  The Tribunal assessed incidents of harm suffered by other members of the Congress Party in the period preceding his arrival in Australia.  The Tribunal’s finding, that the anticipated fear is without sufficient objective foundation was not attributable solely to its conclusion about the applicant’s own experiences.  Incidences of personal harm are treated as factors of considerable weight, but not as sole or mandatory criteria.  Had that been the case, the Tribunal member’s consideration of harm experienced by other Congress Party officials would have lacked utility.  The experiences of others in the region is of importance, and it is the combination of the Tribunal’s acceptance of it as sporadic and without current significance as well as the personal evidence that prompted the finding adverse to the applicant’s position.  McHugh J in Chan considered that the range of material relevant to establishing a fear as “well-founded” includes, but is not limited to, factors personal to the applicant (429):

“Courts, writers and the U.N.H.C.R. Handbook agree. . . .that a “well-founded fear” requires an objective examination of the facts to determine whether the fear is justified.  But are the facts which are to be examined confined to those which formed the basis of the applicant’s fear?  In Sivakumaran the House of Lords, correctly in my view, held that the objective facts to be considered are not confined to those which induced the applicant’s fear.  The contrary conclusion would mean that a person could have a “well-founded fear” of persecution even though everyone else was aware of facts which destroyed the basis of his or her fear.”

32                  The Tribunal did not restrict its “objective examination” to factors personal to the applicant.  The broader country situation was also contemplated.  The Tribunal’s powers did not miscarry in respect of its interpretation of the “real chance” test.

Section 476(1)(e)  Incorrect application of the law to facts

33                  The Tribunal’s consideration of the applicant’s prospects for relocation within India is identified as a further source of error.  It is submitted that the Tribunal ignored the applicant’s personal circumstances and in so doing, failed to apply the principles in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, and Hehar v Minister for Immigration and Multicultural Affairs [1997] FCA 1427. 

34                  Apart from questions concerning the Tribunal’s approach to the evidence, which may raise an inquiry more relevant to merits review, the legality of its decision is unaffected by its reasoning on the prospects of relocation.  The findings of the Tribunal in respect of relocation did not occur in the context of assessing Convention criteria.  Whether the applicant’s unwillingness to return to India and rely on the protection of the authorities was legitimate is irrelevant, the Tribunal having already concluded that the Convention criteria did not apply on account of dissatisfaction of the “real chance” test.  The reasonability of relocation arises only at the point where the Tribunal is satisfied that the applicant has a well-founded fear in relation to the country of origin.  This point was explained by Black CJ in Randhawa, 443, and recently confirmed by the Full Court in Sabaratnasingam v Minister for Immigration & Multicultural Affairs [2000] FCA 261.   In this case the threshhold criteria, that there be a well-founded fear based on a Convention reason, has not been proved to Tribunal’s satisfaction.  Views subsequently expressed as to the reasonability of relocation cannot influence the outcome of the application.  Relocation was spoken of as a means of allaying subjectively held fears, which the Tribunal had accepted as genuine, but inadequate, to establish the applicant as a “refugee”.

35                  The position may be different if the Tribunal held some uncertainty about the objective foundations of the fear see Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719.  In those circumstances, not here present, the broad range of relevant factors for consideration may include the possibility for protection by the Punjabi authorities, and the prospects of civil strife elsewhere in India.  The effectiveness of police control at the site of former residence, and further afield within the country, are both pertinent to testing the applicant’s fear and assessing its objective foundations.  This accords with the general approach recently taken in “O” v Minister for Immigration & Multicultural Affairs [2000] FCA 265.  Even so, the applicant’s personal circumstances are not relevant to assessing the availability of internal protection beyond their capacity to provide some reflection on the genuineness of access an applicant may have to protection within his country of origin - the “range of realities” relevant to the reasonableness of relocation in Randhawa, 442 (per Black CJ).  This interpretation was recently confirmed by the Full Court in Abdi v Minister for Immigration and Multicultural Affairs [2000] FCA 242.  The Court was of the view [13] that it followed:

“from what was said in Randhawa, and from a proper understanding of the terms of the Convention definition, that unwillingness to return (not based on well‑founded fear of persecution for a Convention reason) cannot of itself (nor can consequences that follow entirely from that unwillingness) convert into a refugee an applicant who would not otherwise be entitled to international protection.  That is simply an application of the well established principle that third countries are obliged to give international protection only in circumstances where national protection is not available.”

Section 476(1)(a)  Failure to address significant facts

36                  Further error is alleged on the basis that significant factors, including the applicant’s political affiliations, evidence of violence directed at political colleagues;  the connexion between the party in coalition government and militant Sikh faction and the pattern and timing of threats suffered by the applicant’s family;  were not properly addressed or were given inadequate weight.  Reliance on the “no evidence” ground for review is not helpful, as the complaints do not concern an absence of evidence to support findings made, but the persuasiveness of the evidence.  That is a question of merit, and lies outside the scope of this Court’s review functions.  Complaints relating to the “inadequate weight” afforded to evidence of personal threats must also be dismissed on this basis.  It is for the Tribunal to determine whether it finds evidence of threats in the early 1990s persuasive.  Wrong findings with respect to the timing of threats is a finding of fact, not reviewable by this Court.  The applicant also complains that the Tribunal gives inadequate attention to his political position within the Congress Party, overemphasised the significance of his religious affiliations, and ignored evidence of governmental support for terrorist activity.  Having recognised the political affiliations contended by the applicant, the degree of weight or the persuasiveness of those details is again a matter for the Tribunal.  Inquiries as to the relevance or otherwise of material are, in any event, excluded by s 476(3)(d) and (e).

37                  Other evidential difficulties may be classified as relating to the deficiency of reasoning.  A failure to comply with the procedural requirements of s 430, which outline matters to be recorded by the decision-maker following its decision, is a reviewable error.  The applicant’s concern, that the Tribunal has ignored or remained silent in respect of conclusions for material questions of fact is answered by sub (c) of that provision.  It relates to the standard of reasoning provided by the decision maker and requires it to disclose all findings on material questions of fact.  The scope of the legal obligation was considered by the majority in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469 (see paras [47], [48], [54] and [58]).  Particular attention was given to the test for identifying “material facts” (482 [56]-[57]):

“…if a decision, one way or the other, turns upon whether a particular fact does or does not exist, having regard to the process of reasoning the Tribunal has employed as the basis for its decision, then the fact is a material one.  But a requirement to set out findings on material questions of fact, and refer to the material on which the findings are based, is not to be translated into a requirement that all pieces of conflicting evidence relating to a material fact be dealt with: see Durairajasingham at 416 [65] & 417[67].

Thus whilst materiality will not necessarily depend upon how an applicant chooses to present the issues, we do not agree that the only material facts are those on which the Tribunal is legally required to make findings. . . .A fact is material if the decision in the practical circumstances of the particular case turns upon whether that fact exists.”

38                  The difficulty with relying on the materiality point is that it disguises what are general complaints about the persuasiveness of factors within the Tribunal’s consideration.

39                  Factors that should have been addressed on account of their materiality, but are alleged to have been ignored, include the relationship between the current Government and the terrorist limb of the Akali Dal Party, and whether it precludes the possibility of official protection in the Punjab.  The answer to this question will be a material fact if, in a practical sense, the outcome of the application for a protection visa depends upon whether the applicant’s assertion that the government condones or tolerates terrorist activity is accepted or rejected.  It is clear that the position of Punjabi authorities was significant to the Tribunal’s finding that there was not a “well-founded” fear of persecution.  Compliance with s 430 does not require every piece of evidence to be analysed.  Details of the current relationship between the Akali Dal Party and the Babbar Khalsa may well fall into this category.  A consideration of them is obviated by the general conclusions and recitation of evidence indicating a lack of official support for terrorism in the region.  No contravention of s 430 is recognisable, and any other complaint must relate to the persuasiveness of the factors before the Tribunal.

40                  The applicant also identified as a material factor the ramifications of the assassination of a high-ranking member of the Congress Party in the days immediately preceding the applicant’s arrival in Australia, relying upon it as proof of the risk of serious harm to other party members.  Incidences of political assassination in the Punjab are material to the Tribunal’s finding that there was no objective basis for the fears of harm alleged.  The assassination identified by the applicant does, however, feature in its reasons and cannot be said to have been ignored by it.

Section 476(1)(g)   No evidence to justify decision

41                  The applicant contends that the findings in respect of the assassination being a one-off phenomena were without evidential basis.  A finding that the incident was a singular one could not be proved by positive evidence, but rather must rely on the absence of like events and the decreasing incidence of violence.  There was no evidence of a recurrence of political assassinations or attempts by terrorists in the time following the 1995 incident.  The Tribunal was entitled to give what weight it thought appropriate to the pattern of attacks leading up to the assassination and to discount the possibility of a repeat that may have some direct impact on lesser officials, in the position of the Applicant.

42                  The applicant also submitted  that there was no evidence to justify the Tribunal’s finding that the applicant did not experience any adverse incidents in the 21 months prior to his arrival in Australia.  The applicant’s concern misconstrues the finding of the Tribunal.  That is not a correct statement of the Tribunal’s findings.  Rather than discounting the applicant’s assertions of harm, the Tribunal acknowledge that he was the target for threats but that the severity of his experience did not mean the fear of persecution was warranted.  The other factor identified, that the applicant’s family was a victim of home invasion, is not addressed in the Tribunal’s reasons.  This does not affect the validity of the decision.  The tribunal is not obliged to set out its findings on every fact, just those material to the decision reached.  The tribunal considered the totality of the applicant’s experiences.  Failure to address certain relevant factors is not a reviewable error of law.

43                  The applicant further contends that there was nothing in the evidence to justify a finding that fears were restricted to the early 1990s and the Punjab region.  This assertion also misconstrues the Tribunal’s reasons.  Although the Tribunal’s focus is upon incidents during the early 1990’s and the political situation in Punjab, its findings are not exclusive of other possibilities.  The Tribunal analysed the evidence and concluded that the personal experiences of the applicant in the period immediately prior to his departure were not serious.  In the context of relocation, the Tribunal refers to independent evidence and the treatment of Sikhs outside the Punjab.  No error is disclosed by the failure to consider whether political, not religious, persecution was likely to occur outside the Punjab.  Again, this is a question of what is relevant or persuasive.

Section 476(1)(e)  Currency of Evidence Considered

44                  The applicant sought to rely upon Chan, and to the recognition by McHugh J that refugee status is to be determined upon facts as they exist at the date when protection is sought by an applicant (432-433).  It is said that the Tribunal erred by failing to exclude material not current at the time of the applicant’s arrival in Australia.  Error of this kind is alleged in two respects.  The applicant identifies the Tribunal’s consideration of independent reports prepared subsequent to his arrival in Australia.  Further significance is attached to the Tribunal’s findings about subjective fears held by the applicant some years prior to his arrival here and his application for political asylum.

45                  The significance of the new material must be understood in the context of the entirety of evidence before the Tribunal.  Nothing much may be gained by allowing an application on this basis where it accords with material for which there is no objection, and which persuaded the Tribunal in its determination.  The potential for futility was recognised by McHugh J in Chan at p 432:

“In many cases, the same result will be reached whether one begins by asking whether an applicant was a refugee when he or she left his or her country of nationality and whether the circumstances have since changed or whether one simply examines the circumstances in the country of nationality at the time a claim for recognition is made on a State party.”

46                  Here, the Tribunal’s reference to 1996 and 1997 reports cannot be said to have persuaded it to a different view than that reached upon earlier independent evidence.  The reference to the “most recent” evidence is relied upon as reiterating views already expressed about the abatement of terrorism targeting Sikhs in the Punjab.  Understood in this context, no error can be identified in citing evidence that does no more than confirm an opinion open on the earlier material, that improved conditions in the region perpetuate.  At most, the material objected to is an irrelevant consideration.  Review on that basis is impermissible:  s 476(3)(d).

47                  Further reference, conceded to some extent by supplementary submissions, is made to findings about the applicant’s subjective fears in the early 1990s.  They too must be understood in context.  The views expressed about early fears do not preclude the Tribunal’s acceptance of there being a subjective fear of harm at the time the application for protection visa was made.  Instead, the Tribunal appreciated the systematic receipt of threats in the period immediately prior to departure from India, and considered that any subjective fear retained from that time could be adequately redressed by relocation within India.  No error is occasioned by the Tribunal’s comments about early fears.  In any event, the availability of protection was resolved by reference to the absence of an adequate objective basis for fears held.  It was understood that any subjective fear ought not be conclusive of the matter, as it could not be said to be well-founded.

CONCLUSION

48                  The grounds for review fail.  No legal error has been shown.  The application will be dismissed and the applicant pay the respondent’s costs of the application

Associate:

Dated:              15 December 2000