Singh, Sarbjit v Minister for Immigration & Ethnic Affairs [1996] FCA 902

CATCHWORDS IMMIGRATION - application for protection visa - application for refugee status - judicial review - whether Refugee Review Tribunal's decision induced or affected by actual bias - Migration Act 1958, s. 476(1)(f) - whether Tribunal's decision not according to substantial justice and the merits of the case - Migration Act 1958, s. 420(2)(b) - a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias - irritation, impatience, or even sarcasm, do not suffice to establish actual bias - actual bias exists only where evidence shows preliminary views are incapable of being altered because the decision-maker has unfairly and irrevocably prejudged the case. SARBJIT SINGH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS G960 of 1995

LOCKHART J. 18 OCTOBER 1996 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G960 of 1995 ) GENERAL DIVISION ) BETWEEN: SARBJIT SINGH Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent JUDGE MAKING ORDER: LOCKHART J. WHERE ORDER MADE: SYDNEY DATE ORDER MADE: 18 OCTOBER 1996

MINUTE OF ORDER THE COURT ORDERS THAT: 1. The application be dismissed. 2. The applicant pay the costs of the respondent of the proceeding, including reserved costs, if any.

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

IN THE FEDERAL COURT OF AUSTRALIA) ) NEW SOUTH WALES DISTRICT REGISTRY) No. G960 of 1995 ) GENERAL DIVISION ) BETWEEN: SARBJIT SINGH Applicant AND: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS Respondent 18 October 1996 REASONS FOR JUDGMENT LOCKHART J. Introduction The applicant, Sarbjit Singh, seeks a review by the Court of a decision of the Refugee Review Tribunal ('the Tribunal') affirming a decision of the Delegate of the Minister for Immigration and Ethnic Affairs who, in turn, had refused the applicant's application for a protection visa (which in effect is an application for refugee status). The applicant's application for a protection visa was made on 7 September 1995. The Tribunal was constituted by a single member (Mr Stephen Whitlam) pursuant to s. 422. Application to this Court is made pursuant to s. 475(1)(b) of the Migration Act 1958 ('the Act'). The primary ground for review of the Tribunal's decision asserted by the applicant is that it is said to have been induced or affected by actual bias of the member of the Tribunal who made the decision (s. 476(1)(f)). Secondly, the applicant asserts that the Tribunal did not act according to substantial justice and the merits of the case, as it is required to do by s. 420(2)(b) of the Act. This was said by counsel for the applicant to constitute a failure by the Tribunal to observe procedures which are required by the Act to be observed in connection with the making of the Tribunal's decision (s. 476(1)(a)) or to constitute a decision which was not authorized by the Act (s. 476(1)(c)). The applicant relies on each of these grounds and seeks to have the Tribunal's decision set aside. Facts The relevant facts may be briefly stated. The applicant was born in 1972. He is a citizen of India and was a resident of the Punjab. He is an adherent of the Sikh religion. He partially completed studies for the degree of Bachelor of Arts. In 1993, he left India for Thailand, where he remained, save for brief trips beyond the border to renew his visa. In March 1995, he went from Thailand to Calcutta, stayed several days there, and returned to Thailand. More recently, the applicant obtained a visitor's visa for Australia and arrived here on 5 September 1995. He was detained at the airport and refused entry. It appears that the reason for the refusal of entry was that the Australian authorities formed the view that the applicant had arrived in this country on a forged passport. On 7 September 1995 the applicant applied for a protection visa, the criterion for which is that an applicant must be a non-citizen of Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (s. 36). The applicant provided written material in support of his application on various dates thereafter. As mentioned earlier, a Delegate of the Minister refused his application and the applicant then sought a review of the Delegate's decision by the Tribunal. The applicant appeared before the Tribunal on 4 December 1995 for an oral hearing which lasted some six hours. He was not represented. The Tribunal gave written reasons affirming the decision under review by it on 6 December 1995. The applicant's case before the Minister's Delegate and the Tribunal was that he was a member of the All India Sikh Students Federation. He became 'Stage Secretary' of his branch of this organization in 1990. The organization was not proscribed by the Indian government, but it had been a proscribed body some years earlier during the height of civil disturbances in the Punjab. The applicant claimed that his involvement with this organization brought him into conflict with the police, that he had been arrested on several occasions in 1992, and that he had been beaten whilst detained by police. He claimed that he was interrogated and forced to confess to providing succour to militants and storing armaments for them. The applicant claims that after he was arrested, detained and beaten on the last occasion, he was obliged to go to hospital for treatment. Upon becoming aware of continued interest in him from the authorities, the applicant fled the Punjab. Subsequently, when he heard from friends with whom he had taken shelter that his home had been raided by police searching for him, he decided to leave India. He travelled to Thailand with the assistance of his parents. He was maintained there by the expatriate Sikh community and by friends. He travelled over the borders to obtain new visas more than once. He once tried to gain entry to the United States, but was arrested in Hong Kong and deported to Thailand; he had sought this entry by means of a false passport. The applicant also made a trip to Calcutta in order to see whether it was safe to return to India. He decided that it was not safe to return to India and that Australia would provide a peaceful haven for him. He came here on 5 September 1995, intending to settle. Statements were made in his visa application concerning what he had been doing in Thailand and concerning his relationship with a woman who had acted as agent for him in respect of his travel here. Questions arose about the veracity of the claims made by the applicant.