CATCHWORDS MIGRATION - Refugees - Well-founded fear of persecution - Obligation of Refugee Review Tribunal to make inquiries. Migration Act 1958, ss36, 353, 363(1)(d), 420, 427(1)(d), 476 Migration Reform Act 1992, s39 Minister for Immigration and Ethnic Affairs v Mohinder Singh (1997) 142 ALR 191 Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 Raj v Minister for Immigration and Ethnic Affairs (unreported, 18 July 1996) Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 Luu v Renevier (1989) 91 ALR 39 Tickner v Bropho (1993) 40 FCR 183 Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 Minister for Immigration and Ethnic Affairs v Daphne Teoh (1995) 57 FCR 194 Dai v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996 Sarbjit Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996) Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996) Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, 24 June 1996) Zakinov v Gibson (unreported, 26 July 1996) Eshetu v Minister for Immigration and Ethnic Affairs (unreported, 31 January 1997) Ma v J Billings (1996) 142 ALR 158 Dai v Minister for Immigration and Ethnic Affairs (unreported, 17 April 1997) Mohideen v Minister for Immigration and Ethnic Affairs (unreported, 17 April 1997) MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL v SURJIT SINGH SG 51 of 1996 COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ PLACE: Adelaide DATE: 7 May 1997 IN THE FEDERAL COURT OF AUSTRALIA ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) No SG 51 of 1996 GENERAL DIVISION ) BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL Appellants AND: SURJIT SINGH Respondent COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ DATE: 7 May 1997 PLACE: Adelaide MINUTES OF ORDER The Court orders that: 1. The appeal be allowed. 2. In lieu of the order of Branson J it be ordered that the application dated 19 September 1995 be dismissed with costs. 3. The respondent pay the appellants' costs of the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) SOUTH AUSTRALIAN DISTRICT REGISTRY ) No SG 51 of 1996 GENERAL DIVISION ) BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL Appellants AND: SURJIT SINGH Respondent COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ DATE :7 May 1997 PLACE: Adelaide REASONS FOR JUDGMENT BLACK CJ, von DOUSSA, SUNDBERG and MANSFIELD JJ: The proceedings On 1 August 1991 the respondent applied for refugee status under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The application incorporated a claim on behalf of the respondent's wife and son. The application was rejected by the delegate of the Minister for Immigration and Ethnic Affairs on 11 May 1994. By virtue of s39 of the Migration Reform Act 1992 the delegate's decision had the effect of a refusal of a protection visa. On 14 June 1994 the respondent lodged with the Refugee Review Tribunal ("the Tribunal") an application for review of the decision. On 18 August 1995 the Tribunal affirmed the delegate's decision. The respondent's application for review of the decision was heard together with comparable applications by Mohinder Singh and Jagjit Singh by Branson J. Her Honour set aside the decision on the ground that the Tribunal had made an error of law, in that it had evaluated whether the respondent's fear of persecution was well-founded as at the date of its determination rather than at the date of his application for refugee status. The present appeal is from that decision. Factual background The respondent is from a village in the State of Punjab in India. After finishing his secondary education in 1980, he became a farmer. In his application for refugee status, he said that he supported the concept of the independent Sikh state of Khalistan and that he was known for his fearless advocacy of the Sikh cause. He claimed to have been arrested and detained about ten times in the past five years - sometimes by police and sometimes by the military. He said he was sometimes detained for a few days, sometimes for a week and once for two weeks. He complained about the conditions in which he was detained and said he was tortured. He also said he and his wife were once set upon by a Hindu mob and hurt. In a statutory declaration submitted to the Tribunal the respondent stated that, as a member of the Sikh Sindranwales Party, he was "actively involved in the quest for a Sikh State". He said that although the party does not believe in violence, the Indian Government nonetheless deals with Sikhs as terrorists. The respondent joined the party in 1983 and became the political leader of the Toen Gashishanbar, "which is the centre of 50 villages". Party members attended meetings at his house. On one occasion, while a meeting was being held, the police came to the house, and although three members escaped, the rest were arrested. Later, the police killed "in false encounters" those who had escaped. The police subsequently blamed the respondent for the events described above: they had been searching for him, as he was distributing weapons to terrorists. In January 1986, while at home with his family, the respondent was suddenly arrested and taken to the police station. There, he said, he was beaten brutally. He was only released when his father paid a bribe of 20,000 rupees. The respondent nonetheless continued to be involved in the party's activities, and was harassed for this reason. In December 1986 the respondent was again arrested and jailed without trial. He was beaten on the feet and stomach. After three days his father and other villagers managed to secure his release. In April 1987 the respondent's uncle and his uncle's family were killed by the police. The respondent was arrested on many further occasions and "these things happened to [him] many times too". In 1989 the respondent married. Later, through the sponsorship of his wife's brother, who was living in Australia, the respondent obtained a visa and came here. He claimed that he is scared that if returns to India the police will kill him in a "false encounter". After the hearing, the respondent's adviser, a migration agent, submitted to the Tribunal for its consideration two letters dated 26 May 1995, one to the respondent and the other to his wife, purporting to be from an advocate in Nawanshahr in the Punjab, Gurpal Singh. The letters state that the respondent and his wife are wanted by the authorities in relation to criminal charges. Each letter includes the following paragraph: 3. That the Local Police is in search of you and raiding your house and tortouring (sic) your parents for your immediate arrest. The respondent's adviser also submitted what purport to be copies of warrants of arrest for the respondent and his wife. These documents are dated 5 January 1995 and require the production of the respondent and his wife before a magistrate on or before 10 February 1995. It appears from the migration agent's letter by which he submitted the additional documents that the copies of the documents purporting to be warrants of arrest were included with the letters the agent received from Gurpal Singh in India. The Tribunal's decision The Tribunal appears to have accepted the respondent's account of events to the extent that it believed he "was detained and mistreated on a number of occasions by the Indian authorities due to a suspicion that he might have been involved in pro - Khalistan activities". However, the Tribunal was of the opinion that those occurrences seemed "to have been random and related to the security situation at that time". The facts did not support the conclusion that police interest in the applicant was "a direct result of his political activities". The Tribunal accepted that the respondent feared persecution on the grounds of religion and political opinion. The Tribunal reviewed the situation of Sikhs in India, particularly in the Punjab, by reference to material that was virtually identical to that considered by it with respect to Mohinder Singh. The Tribunal reached the following conclusions with respect to the respondent's fear of persecution should he return to India: Despite the genuineness of his subjective fear, it is evident nonetheless from information from a variety of sources that there has been an improvement in the Punjab in the intervening years since the Applicant's departure. From the evidence examined above, it would appear that the Indian authorities in the Punjab are targeting top Sikh militants and those with a degree of prominence in human rights reporting. I find, therefore, that there is a substantially less than a real chance of the ordinary Sikh with no continuing involvement of any significance in separatist activities attracting the adverse attention of the authorities which would result in detention and mistreatment which Sikhs in the region have experienced in the past .... While I have sympathy for the Applicants in their desire to remain in Australia ... I am unable to conclude that this reluctance discloses a well-founded fear of persecution on return for a Convention reason. The sources referred to above support the conclusion that the level of violence and killings in the Punjab has fallen dramatically since the Applicants left the Punjab in 1991 and, in particular, that abusive behaviour by the Punjab Police is coming under growing and effective scrutiny by government bodies. In view of the vastly improved situation in the Punjab, and given that the Applicants do not have a level of association with terrorist groups which would bring them to the notice of the police, I find that there is no more than a very remote chance that they will be differentially at risk on return. The Tribunal concluded that the letters from Gurpal Singh and the warrants were not authentic. It gave reasons for those conclusions. In relation to the letters the reasons included the fact that the claims regarding the torture of the respondent's and his wife's parents had not been put forward previously. The Tribunal said that the fact that it did not consider the letters to be genuine by itself "taints the warrants of arrest... so far as their authenticity is concerned", but it found that there were additional reasons for rejecting their authenticity. Relevant Time For the reasons given by the Court in Minister for Immigration and Ethnic Affairs v Mohinder Singh (1997) 142 ALR 191 at 193-196 we conclude that the learned primary judge was in error in holding that the critical time for the determination of an applicant's status as a refugee was the time of the application. See now Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, at 382. In the present appeal, however, there is an additional issue to be determined. It relates to the Tribunal's conclusion that the documents purporting to be warrants for arrest were not authentic. Arrest warrants In her reasons for judgment, the primary judge expressed the opinion that when an applicant produces a document, such as a warrant of arrest, which purports to be an official document issued in a foreign country, in the absence of clear evidence which reveals it to be a forgery, its authenticity, if in issue, is a matter appropriate for verification by the Tribunal through official channels. One of the grounds of the Minister's appeal is that her Honour erred in law in concluding that the issue of the authenticity of the warrant was a matter appropriate for verification by the Tribunal through official channels. Her Honour's order setting aside the Tribunal's decision was not, however, based on the Tribunal's failure to pursue the authenticity of the warrants in the manner suggested. It was based solely on her view that the respondent's status had been assessed as at the wrong date. An issue about the Tribunal's treatment of the warrants had been raised by the respondent in his application for review of the Tribunal's decision. One of the grounds of the application was that the Tribunal "erred in holding that the warrant of arrest issued against the Applicant for being a supporter of the militants was not genuine". Another ground was that "the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made". In further and better particulars, the respondent sought to develop this last ground to encompass an argument that the Tribunal should have exercised its power of investigation pursuant to s427(1)(d) of the Migration Act 1958. The further and better particulars include the following: The Applicant states that the evidence of authenticity of the said documents could have been easily obtained from the Australian High Commission in New Delhi. The IRT (sic) made no attempt to obtain such evidence and proceeded to a decision and thereby exercised decision-making power in a manner so unreasonable that no reasonable person would have exercised it. The particulars ignore the limitations on the grounds of review provided for by s476(2) and (3). In his submissions on the appeal, counsel for the respondent sought, in effect, to uphold the judgment appealed from on alternative grounds relating to the Tribunal's treatment of the warrants. Although the way in which the issue came before the Court on appeal was irregular, in that it should have been raised by way of notice of contention, the Tribunal's treatment of the warrants having been the subject of submissions on both sides, it is appropriate that we now deal with that matter. In substance, the argument for the Minister was that the Tribunal had no general duty to inquire in circumstances such as those posited by her Honour, that it was a matter entirely for the Tribunal to decide whether or not it would make inquiries, and that in any case there was no basis for concluding that, if there had been any error, it fell within any of the limited grounds of review provided for by s476(1). Counsel for the Minister relied upon observations made by Davies J in Raj v Minister for Immigration and Ethnic Affairs (unreported, 18 July 1996) in which his Honour said: Counsel submitted that there was a duty on the Tribunal to go out and make enquiries of its own, In my opinion, no such duty is either expressed or to be implied from the Migration Act. Indeed, it would be quite inconsistent with the general principles of procedural fairness which are applied in this country. Those principles require parties to be given a fair opportunity to present material. They do not require a tribunal to make its own inquiries. ... In this country we do not have examining magistrates such as are common in the administrative law systems of many European countries. We proceed upon the footing that the parties should have a fair chance to put their case. Of course, a tribunal does everything it can to assist the parties. It provides interpreters, if they are needed, and guides witnesses as to matters of fact to which their evidence ought to be directed, to matters which, in its opinion are important, and which it may perceive have not been dealt with. But beyond that, a tribunal certainly has no duty to go out itself and make inquiries of people who are not before it. Counsel for the respondent argued that the Tribunal was under an obligation to exercise its power under s427(1)(d) to ascertain and evaluate all relevant facts. He relied on the passage in the Handbook referred to in her Honour's reasons. He also argued that obligations were imposed upon the Tribunal by s420, and that these gave rise to a duty to make inquiries. The failure to do so was said to be a ground of review within either s476(1)(a) (non-observance of procedures required by the Act to be observed) or s476(1)(g) (no evidence). Section 420 provides: (1) The Tribunal shall, in carrying out its functions under the Act, 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) shall act according to substantial justice and the merits of the case. Section 427(1)(d) empowers the Tribunal to ... require the Secretary to arrange for the making of any investigation, or any medical examination, that the Tribunal thinks necessary with respect to the review, and to give to the Tribunal a report of that investigation or examination. There are cases under the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act") in which it has been said that there may be occasions on which a decision-maker should initiate inquiries to discover information. Thus in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-170, in a passage which has been quoted with approval on many occasions, Wilcox J said: The circumstances under which a decision will be invalid for failure to inquire are, I think, strictly limited. It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. See also Luu v Renevier (1989) 91 ALR 39 at 49; Tickner v Bropho (1993) 40 FCR 183 at 197-198; Teoh v Minister for Immigration and Ethnic Affairs (1994) 49 FCR 409 at 414, and on appeal (1995) 183 CLR 273 at 290 per Mason CJ and Deane J. In other cases it has been said that not initiating inquiries may involve an improper exercise of a power conferred by statute or a failure to take into account a relevant consideration in exercising that power: see per McHugh J in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR at 321. See also the observations of Black CJ, Gummow and Beazley JJ in Minister for Immigration and Ethnic Affairs v Daphne Teoh (1995) 57 FCR 194 at 201 (letters E-F). But under s476(2)(b) unreasonableness is specifically excluded as a ground of review by this Court, and under s476(3)(d) the ground provided for by s476(1)(d) (improper exercise of power) is not to be construed as including a failure to take a relevant consideration into account or any other exercise of the power in such a way that represents an abuse of the power that is not covered by paragraphs (a) to (c) of s476(3). The respondent however relies on s420 as the source of the obligation to make an inquiry. This involves the contention that in the circumstances of the present case the obligation to act according to substantial justice required the Tribunal to make an inquiry through official channels about the authenticity of the warrants of arrest. It also involves the contention that a failure to act according to substantial justice in this manner constituted a failure to observe procedures required by the Act within the meaning of s476(1)(a). Support for the second of these contentions is to be found in a dictum of Davies J as a member of the Full Court in Dai v Minister for Immigration and Ethnic Affairs (unreported, 18 September 1996). His Honour said: Although s420(1) specifies only an objective, the Migration Act intends that the procedures adopted by the Refugee Review Tribunal will be fair and just. If this has not occurred in the present case, the applicant will be entitled to seek relief under s476(1) of the Migration Act on the ground that the procedures required by the Migration Act to be observed in connection with the making of the decision have not been observed. Further support is provided by a dictum of Lockhart J in Sarbjit Singh v Minister for Immigration and Ethnic Affairs (unreported, 18 October 1996). In that case, as his Honour noted, the applicant was not seeking a review on the merits, but confined his attack on the Tribunal's decision to conduct which was said to indicate that it had not acted according to substantial justice and the merits of the case. The case was thus distinguishable from the decision of Olney J in Velmurugu v Minister for Immigration and Ethnic Affairs (unreported, 23 May 1996) and the decisions of North J in Wannakuwattewa v Minister for Immigration and Ethnic Affairs (unreported, 24 June 1996) and Zakinov v Gibson (unreported, 26 July 1996) where the Court rejected what amounted to attempts to review decisions on the merits. In Sarbjit Singh Lockhart J observed: Section 420 is mandatory in its requirements that the Tribunal in reviewing a decision must act according to substantial justice and the merits of the case (sub-s.(2)) and in directing the Tribunal, in carrying out its functions under the Act, to pursue the objective of providing a review mechanism that is fair, just, economic, informal and quick (s420(1)). His Honour was not persuaded that substantial justice had not been afforded the applicant. But his Honour said: If I had been of the contrary view, and found that the Tribunal had acted so unfairly as to deny substantial justice to the applicant, that would in my view be a failure to observe procedures required by the Act for the purposes of s476(1)(a), the procedure being to act according to substantial justice in reviewing a decision. In Eshetu v Minister for Immigration and Ethnic Affairs (unreported, 31 January 1997) Hill J agreed with the view expressed by Lockhart J and Davies J that s420 specifies at least one of the procedural requirements to which s476(1)(a) refers. However his Honour went on to say that the references to fairness and justice in s420 must be read subject to s476(2), so that, if the injustice would involve a breach of the rules of natural justice, then judicial review will be precluded. To the same effect are the observations of Drummond J in Ma v Billings (1996) 142 ALR 158 at 164-166, Sackville J in Dai v Minister for Immigration and Ethnic Affairs (unreported, 17 April 1997) and Olney J in Mohideen v Minister for Immigration and Ethnic Affairs (unreported, 17 April 1997). Although Davies J in Raj was of the view that no duty of inquiry was either expressed in or to be implied from the Act, he left open whether s363(1)(d) (which is in the same terms as s427(1)(d)) could ever impose a duty on the Immigration Review Tribunal, the breach of which would be a failure to observe the "procedures that were required by this Act ... to be observed ..." for the purposes of s476(1)(a). It seems to us that his Honour also left open the question whether the obligation imposed on the Immigration Review Tribunal by s353(2)(b) to act according to substantial justice and the merits of the case could ever impose a duty on that Tribunal, the breach of which would be a failure to observe the procedures referred to in s476(1)(a). Accepting for the purposes of argument that s420(2)(b) requires a procedure to be observed in connection with the making of a decision within s476(1)(a), the question is whether the obligation to act according to substantial justice requires the Tribunal to make an inquiry of the nature suggested here. The way in which the Tribunal is required to operate and the powers conferred on it suggest that there may be circumstances in which inquiry by the Tribunal will be necessary in order that it discharge its obligation to act according to substantial justice and the merits of the case. In cases where s424 does not apply (ie where there is no review "on the papers"), the Tribunal must give an applicant an opportunity to appear before it to give evidence (s425(1)(a)), and "may obtain such other evidence as it considers necessary" (s425(1)(b)). An applicant may give the Tribunal written notice that he or she wants it to obtain oral evidence from a person or persons named in the notice (s426(2)). If the Tribunal is so notified, it must have regard to the applicant's wishes, but it is not required to obtain evidence from any such person (sub-s(3)). Section 427(1)(d) empowers the Tribunal to require the Secretary to arrange for the making of any investigation it thinks necessary with respect to the review, and to furnish a report of that investigation. These provisions show that the Tribunal's role in cases that come before it for review is not a passive one, although the circumstances in which the Tribunal could be found to be under an obligation to make a particular inquiry will no doubt be rare, as they have been in cases under the ADJR Act. In our view the respondent has fallen short of showing that the Tribunal's failure to make inquiries through official channels about the authenticity of the warrants involved a denial of substantial justice. The Tribunal gave reasons for concluding that the letters and the warrants that accompanied them were not authentic, and those were conclusions to which it was entitled to come. The Tribunal was given no information about the provenance of the warrants other than that they were forwarded with letters which it was entitled to conclude were not authentic. Moreover, although the failure to ask the Tribunal to exercise its power to make inquiries could not be decisive, there is nothing to indicate that it was ever suggested to the Tribunal by the respondent or by the migration agent who was assisting him that it should take any steps of its own to authenticate the documents in question. Although we have concluded that there may be circumstances in which the Tribunal's obligation to act according to substantial justice requires it to make inquiries, we are respectfully unable to agree with the primary judge's general proposition that where an applicant produces a document which purports to be an official document issued in a foreign country, its disputed authenticity is a matter appropriate for verification by the Tribunal through official channels, if by that her Honour intended to convey (as the respondent suggested) that the Tribunal was under a duty to verify in such cases. In a particular case the Tribunal may indeed be obliged to verify a document in this fashion, but there is no general rule to that effect. Because of the conclusion to which we have come, it is not necessary for us to decide whether, in a case where the Tribunal's omission to make inquiries constitutes a failure to act according to substantial justice for the purposes of s420(2)(b), this amounts to failing to observe procedures required by the Act to be observed for the purposes of s476(1)(a). Nor is it necessary to determine whether, in such a case, s476(2) precludes a review by this Court: cf the observations in Eshetu, Ma, Dai and Mohideen referred to above. That question was not argued before us. Finally, there is no substance in the respondent's contention that the Tribunal's failure to pursue the authenticity of the warrants made out the ground of review in s476(1)(g) that there was no evidence or other material to justify the making of the decision. Without suggesting that there are no other obstacles to acceptance of the argument, the submission ignores the limitations imposed on the ground relied on by s476(4). So far as presently relevant, that sub-section provides that the ground in par(g) is not to be taken to be made out unless the decision-maker was required by law to reach the decision only if a particular matter was established, and there was no evidence or other material from which the person who made the decision could reasonably be satisfied that the matter was established. Conclusion The appeal should be allowed, and in lieu of the order of Branson J setting aside the Tribunal's decision, it should be ordered that the application dated 19 September 1995 be dismissed. I certify that this and the preceding fourteen pages are a true copy of the reasons for judgment of Chief Justice Black and Justices von Doussa, Sundberg and Mansfield .................................................................. Associate 7 May 1997 IN THE FEDERAL COURT) OF AUSTRALIA ) SOUTH AUSTRALIA ) DISTRICT REGISTRY ) GENERAL DIVISION ) NO. SG50 OF 1996 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA B E T W E E N: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL Appellant and SURJIT SINGH Respondent CORAM: BLACK CJ, LEE, VON DOUSSA, SUNDBERG, MANSFIELD JJ DATE : 7 MAY 1997 PLACE: ADELAIDE REASONS FOR JUDGMENT LEE J: The relevant facts in this matter are stated in the joint reasons of the other members of the Court and it is unnecessary for me to repeat them. For the reasons stated by this Court in Minister for Immigration and Ethnic Affairs and Refugee Review Tribunal v Mohinder Singh, Unreported (24 January 1997), the decision of the learned primary Judge is to be regarded as having been made in error. However, the respondent has contended, albeit informally, that the decision may be supported on other grounds and it is necessary, therefore, to determine whether that is so. In the course of her reasons the learned primary Judge expressed the view that the conclusion of the Refugee Review Tribunal ("the Tribunal") that mistreatment of the respondent by Punjabi police was not for reasons of the political opinion of the respondent, actual or imputed, could not be reconciled with other findings of the Tribunal. The Tribunal accepted that the respondent had been so mistreated "due to a suspicion that he might have been involved in pro-Khalistan activities" but concluded that the mistreatment was inspired by "random" events and not "as a direct result of his political activities". [emphasis added] Under the Migration Act 1958 ("the Act") the Tribunal had to determine whether it was satisfied that the respondent was a person to whom Australia had protection obligations under the United Nations Convention Relating to the Status of Refugees, 1951 ("the Convention"). In this case that meant the Tribunal had to determine whether it was satisfied that the respondent was a person who had a well-founded fear of being persecuted for reasons of religion or political opinion. It was accepted by the Tribunal that the respondent genuinely feared such persecution if returned to his country of nationality. Although it does not follow as of course that fear of persecution is a well-founded fear by showing that a person has suffered persecution in the past for a Convention reason, it is a relevant matter in determining whether there is a real chance that person would suffer such persecution in the future if returned to the country of nationality. The lack of a logical connection between the Tribunal's acceptance that the respondent had been mistreated in a manner that amounted to persecution by reason of the suspicion of the persecuting authorities that he might have been involved in pro-Khalistan activities and the Tribunal's conclusion that the mistreatment was not for reason of political opinion suggests that the law required to be applied by the Act was not so applied by the Tribunal and that her Honour correctly identified that error. The essence of the Tribunal's failure to be satisfied that the respondent was a person to whom Australia had protection obligations under the Convention (expressed by the Tribunal as a "(finding) on the evidence") was that the respondent "did not have a political profile sufficient to bring him to the notice of the authorities and result in persecutory treatment" or "a level of association with terrorist groups which would bring (him) to the notice of the police". Therefore, the Tribunal stated, given "the vastly improved situation in the Punjab" there was "no more than a very remote chance" that the respondent would be "differentially at risk" on return to India. The material before the Tribunal showed that "hit squads" pursued suspected Punjabi militants in and beyond the State of Punjab and persons who had significant organizational or leadership roles in pro-Khalistan militant groups could have cause to fear action against them by such authorities wherever they might be situated in India. Similar material was considered and discussed in Chahal v The United Kingdom, Unreported (European Court of Human Rights, 15 November 1996). According to the reasons of the Tribunal the respondent's claims for protection "arise out of his membership of a pro-Sikh independence political party and detention and mistreatment by the authorities which he experienced because of his association with this organization." When the respondent made his claim to refugee status in August 1991 after his arrival in Australia in June 1991 he had said: "I was known for my fearless advocacy of the Sikh cause. Police and military would come to my home quite often just to keep an eye on things. My home was often searched for weapons. Nothing illegal was found. Often, they would just warn me and go away. As I have said I would at times be arrested. My count is ten [times] in the past five years." The applicant also stated that he was tortured during these periods of detention by being beaten on the soles of his feet and hit in the stomach. In 1987 an uncle of the respondent and the family members of the uncle were killed by police. The Tribunal acknowledged that widespread abuse of Sikh's in the Punjab had been well documented by international organizations but noted that more recent reports relating to the period after the respondent's departure from India suggested that the targets of police attention in the Punjab were Sikhs involved in the leadership of pro-Khalistan activities. On the hearing of the appeal the ground on which counsel for the respondent sought to support the decision of her Honour was that the Tribunal was under a duty to make enquiries to ascertain whether copies of warrants for the arrest of the respondent and his wife, purportedly issued by Indian authorities in February 1995 and produced to the Tribunal by the respondent in June 1995, were copies of valid warrants, if the Tribunal had any doubt in that regard. On their face, the documents were copies of documents issued under an official seal and under the hand of a Judicial Magistrate. The purported copies were presented to the Tribunal several weeks after the Tribunal had completed its hearing of the review application and were delivered in response to a request from the Tribunal to the respondent's agent to produce any additional material within a specified period. In the reasons for its decision the Tribunal stated that it was unable to "accord any weight to the arrest warrants" because it had determined that letters purporting to be from an advocate acting for the respondent in the Punjab and submitted to the Tribunal with the copy warrants were not "authentic" and because the Tribunal had "reservations" regarding the genuineness of the warrants. It is important to note that the Tribunal did not conclude that, on their face, the warrants were patent forgeries and that it went no further than to list matters which gave it cause to doubt the authenticity of the documents. It is unnecessary to deal with the substance of the matters so listed. None of the doubts the Tribunal had about the authenticity of the arrest warrants was conveyed to the respondent for comment. Her Honour noted how the purported copy warrants had been dealt with by the Tribunal and stated that the appropriate course for the Tribunal to follow was to have the documents verified through official channels, such a step not being open to the respondent. Counsel for the respondent submitted that s427(1)(d) of the Act empowered the Tribunal to require the Secretary of the Department to make such an investigation and that, in all the circumstances, the failure of the Tribunal to so act amounted to a failure by the Tribunal to act according to the substantial justice and the merits of the case as the Tribunal was required to do by s420(2)(b) of the Act. It is important to distinguish between an obligation or duty to act imposed on a decision-maker by statute and an indirect obligation so to act arising out of a duty to perform a function in a manner prescribed by statute. It is the latter circumstance that is relevant in this case. No direct duty to authenticate the warrants was imposed on the Tribunal by the Act. Given the importance of a valid warrant to the respondent's case, and it not being suggested to this Court that the use of the Tribunal's power under s427(1)(d) to make such an investigation posed any difficulty for the Tribunal in carrying out the review, it would seem to have been, as her Honour stated, appropriate for the Tribunal to act under s427(1)(d) and have the warrants verified through official channels, particulary if the Tribunal did not put to the respondent for comment any doubts it held as to the authenticity of the documents produced to it by the respondent. (See: Videto v Minister for Immigration and Ethnic Affairs (1985) 69 ALR 342.) It was not the case that an investigation directed by the Tribunal under s427(1)(d) would produce no more than additional material for the Tribunal to consider. It would provide a conclusive answer. In s420(1) of the Act the Tribunal is charged with performing its functions in a manner that will provide a review procedure that is fair, just, economical, informal and quick. In its terms s420 required the Tribunal to balance the possibly competing requirements of a hearing conducted by fair procedures and a hearing that provided a quick result unimpeded by the observance of legal requirements or procedures. As is stated in Guy S. Goodwin-Gill, The Refugee in International Law (Second Edition), (Oxford: Clarendon Press, 1996), at p34, the Convention provides for certain standards of treatment to be accorded to refugees but says nothing about the procedures to be used for determining refugee status. However, certain ground rules are implied and it is appropriate to have regard to the guidance provided by the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status, (1979, re-edited Geneva 1992) prepared at the request of member states of the Executive Committee of the High Commissioner's Programme. (See: Goodwin-Gill at p34; Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 per McHugh J at pp424-426, 430.) The learned primary Judge referred with approval to the following passage from the Handbook at p47: "Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application." The paragraph continues: "Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt." It may be thought that s427(1)(d) of the Act embodied that principle by empowering the Tribunal to act accordingly. Claims of asylum present decision-makers with a difficult task. There are competing interests to be considered. On the one hand the application should be dealt with as quickly as possible, on the other hand the applicant is to be given a fair opportunity to make out the claim. The decision-maker has to assess the credibility of an applicant in circumstances where the whole of the applicant's account necessarily is self-serving and often may have to make the best of disjointed accounts which flow from successive interviews in which the claimant's recollection may be augmented by delayed recollections and the interview procedure may suffer from the need to be translated into and out of the applicant's native tongue. Notwithstanding an overriding prerogative vested in the State to control the right of refugees to seek asylum in this country, the provisions contained in ss427 and 476 of the Act show an intention that, consistent with the conduct of a free society, the rule of law is to be observed and the obligations undertaken by Australia under the Convention for the determination of refugee status are to be carried out by access to due process being accorded asylum claimants. Thus under s420(2) of the Act the delivery of a speedy and efficient review procedure is not to be gained by denial of the rule of law and the Tribunal, however it carries out its functions, must act according to substantial justice and the merits of the case. The phrase "substantial justice and the merits of the case" when read together with the terms of s420(1) suggests that the requirements the Tribunal must observe to comply with s420(2) will be determined by the steps required to produce substantial justice to an applicant having regard to the particular circumstances raised by the applicant's claim under review. If, having regard to those circumstances, substantial justice is not accorded to an applicant, a ground for review of the decision of the Tribunal is provided by s476(1)(a) of the Act. (See: Dai v Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Full Court, 18 September 1996, per Davies J); Singh v Minister for Immigration and Ethnic Affairs, Unreported (Federal Court of Australia, Lockhart J, 18 October 1996)). I note that in Thanh v Billings (1996) 142 ALR 158 and in Eshetu v Minister for Immigration and Ethnic Affairs 142 ALR 474 Drummond J and Hill J, respectively, felt constrained by the terms of s476(2)(a) of the Act to hold that s476(1)(a) could not be construed to include a failure of the Tribunal to comply with s420(2)(a). However, where s476(2)(a) of the Act states that a breach of the rules of natural justice that has occurred in connection with the making of the decision is not a ground on which an application may be made for review of the Tribunal's decision, it is to be read as a statement that removes any implication that a separate ground of review under s476 may be available pursuant to the principles of procedural fairness recognised under the general law. Similarly, s420(2)(b) excludes as a ground of review separate from those listed in s476(1), the right of review available under the general law in respect of an wholly unreasoned decision. Sections 476(2)(a) and (b) are discrete exclusionary provisions, not qualifications upon the content of s476(1) and may be contrasted with the terms of ss476(3) and 476(4) which qualify expressly the terms of ss476(1)(d) and 476(1)(g). (See: Dr M Crock, "Judicial Review and Part 8 of the Migration Act: Necessary Reform or Overkill", (1996) 18 Syd L Rev 267 at 272.) It may be that in the circumstances of a given case a breach of the rules of natural justice under the general law will not amount to a failure to observe the requirement in s420(2)(a) to act according to substantial justice of the merits of the case. In that event s476(2)(a) of the Act makes it clear that no additional or broader ground of review based on a right under the general law will apply if a right of review is not available under s476(1)(a) of the Act for the failure to observe a procedure the Tribunal is required by the Act to observe. (cf. Whim Creek Consolidated NL v Colgan (1989) 88 ALR 83 at 87-88.) Accordingly, I am of the opinion that the proper construction to be applied to s476(1)(a) is as stated by Lockhart J in Singh, namely, that if the Tribunal acts so unfairly or so unreasonably (see: Prasad v Minister for Immigration and Ethnic Affairs (1985) 65 ALR 549 per Wilcox J at 563) as to deny substantial justice to an applicant such conduct will be a failure to observe a procedure required by the Act. The obligation to provide substantial justice in the circumstances requires a broad consideration of the various elements of the case of an applicant to the Tribunal for review. For example, the extent of the harm feared by the applicant, the personal experience of persecution by the applicant, events suffered by the applicant's family, and the general history of persecution in the country of nationality of the applicant would be relevant. In the case of the respondent it was acknowledged that the respondent had suffered arbitrary arrest, and arrest for the purpose of extracting payments from the respondent's family by extortion. It was acknowledged that the respondent feared continuation of that conduct and the prospect of death at the hands of those authorities, a fate suffered by the respondent's uncle and the whole of the uncle's family. It was not contested that there was a history of extra-judicial activity by police in the Punjab and indeed beyond the borders of the State. The Tribunal could not be said to have acted according to substantial justice and the merits of the case by acting upon doubts it held in respect of the provenance of the copy warrants, if those doubts, not referred to the respondent for comment, could have been resolved if an investigation by the Secretary into the authenticity of the warrants had been directed pursuant to s427(1)(d) of the Act. The failure to provide a just process arises out of the Tribunal acting on the unstated belief that the copied warrant was forged and that the respondent had been a party to obtaining and uttering a forged document. If a warrant had been issued for the arrest of the respondent, particularly if the alleged crimes justifying the issue of the warrant were based on breaches of anti-terrorism or national security laws, that fact would have been of the utmost importance in determining whether the Tribunal was satisfied that the respondent had a well-founded fear of persecution, given that the Tribunal had indicated it could not be so satisfied unless the respondent had a sufficient "profile" with police to give him cause to fear for his safety on his return. In the circumstances of this case for the respondent to be accorded substantial justice for the purpose of s420 of the Act the respondent should have been given the benefit of any doubt raised by the copy warrant until appropriate steps had been undertaken to ascertain whether the copy warrant was a copy of an authentic document. On its face the warrant showed the respondent to be a person known to Punjabi police and that he was likely to be considered by police to be a person involved in offences against laws for the suppression of terrorism or for the preservation of order. It follows from the foregoing that her Honour correctly decided, albeit on a ground that cannot be sustained, that the matter should be returned to the Tribunal for the conduct of an appropriate process of review. The appeal should be dismissed. I certify that the preceding thirteen (14) pages are a true copy of the Reasons for Judgment of his Honour Justice Lee. Associate: Date: 7 May 1997 Counsel for the Appellants: S Maharaj Solicitor for the Appellants: Australian Government Solicitor Counsel for the Respondent: G Patel Solicitors for the Respondent: Patel & Co Date of Hearing: 11 November 1996 Place of Hearing: Adelaide Date of Judgment: 7 May 1997