Bachara, Rana & Ors v The Minister for Immigration & Ethnic Affairs [1997] FCA 1253

FEDERAL COURT OF AUSTRALIA

Migration - whether Tribunal brought an independent consideration to the specific circumstances of the matter before it - whether matters raised by applicants involved questions of fact.

Chan v The Minister (1989) 169 CLR 379 - appl.

Leck v The Minister (1993) 43 FCR 100 - cited

Huuba v The Minister (1995) 59 FCR 518 - cited

RANA BACHARA, BALVIR BACHARA, MANDEEP BACHARA and SUKHDEEP BACHARA V the minister for immigration and ethnic affairs

vg 127 of 1997

judge: beaumont j

place: melbourne

date: 24 october 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 127 of 1997

BETWEEN: RANA BACHARA

First Applicant

BALVIR BACHARA

Second Applicant

MANDEEP BACHARA

Third Applicant

SUKHDEEP BACHARA

Fourth Applicant

AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

JUDGE: BEAUMONT J

DATE OF ORDER: 24 OCTOBER 1997

WHERE MADE: MELBOURNE

ORDERS: 1. Application dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 127 of 1997

BETWEEN: RANA BACHARA

First Applicant

BALVIR BACHARA

Second Applicant

MANDEEP BACHARA

Third Applicant

SUKHDEEP BACHARA

Fourth Applicant

AND: THE MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

Respondent

JUDGE: BEAUMONT J

DATE: 24 OCTOBER 1997

PLACE: MELBOURNE

REASONS FOR JUDGMENT BEAUMONT J: The first applicant is a 46 year old national of the Republic of India, from the Punjab, who entered Australia in March 1986. The second applicant is the wife of the first applicant. The third and fourth applicants are their children. The second, third and fourth applicants entered Australia in March 1988. In September 1991, the applicants applied to the Department of Immigration and Multicultural Affairs for protection visas. A delegate of the Minister refused their application. The applicants sought review by the Refugee Review Tribunal ("the Tribunal") of this decision. The Tribunal affirmed the decision. The applicants now seek judicial review of the Tribunal's decision. In its reasons the Tribunal expressed its conclusions thus: "The Applicant and his family have been absent from the Punjab since 1986 and 1988 respectively. At that time, as the information cited above indicates, the Punjab was wracked by terrorism and brutality. However, for the past four or five years this has subsided and the situation improved markedly. The Applicant was a low-level member of the Akali Dal; indeed at one stage in the determination process, he indicated that he was not a member at all. I accept that he may have been caught up in the general sweep of anti-Sikh actions by the Indian police and military forces in the mid 1980s. However, it is clear that since the early 1990s the situation in the Punjab has improved to the extent that it can be said that a person in the Applicant's position would face only a very remote chance of serious harm for his past political activities on return to India. Furthermore, the fortunes of the Akali Dal in recent years and the atmosphere of peace during recent elections add weight to this conclusion. This is not to say that no one would be at risk at present; I accept that those individuals with a high level of activism in the recent past and those who are high-profile human rights campaigners may be at risk of attention from the police. However, I am satisfied that the Applicant does not come within these categories. I am unable to find that the Applicant's fear of persecution is well-founded. I conclude therefore that the Applicant could return to the Punjab once again without serious incident." By their amended application for an order to review, filed on 15 May 1997, and by their contentions of fact and law, filed on 23 July 1997, the applicants sought to advance a number of grounds in their application for judicial review. Those grounds recognised the severe limits placed upon the scope of the jurisdiction of this Court to intervene in such matters. The grounds recognised, properly, that the applicants had to show that there was some error of law in the Tribunal's decision and that it was not open to the Court merely to review on the merits the facts and circumstances of the case. As I followed the submissions advanced on behalf of the applicants, it is possible to classify the grounds for judicial review into three groups. In the first place, it is submitted on behalf of the applicants that the Tribunal failed to bring an independent consideration to the matter at hand. Reference is made, in this connection, to the fact that the Tribunal appears to have picked up and adopted descriptions made of the general situation in the Punjab in the middle of the 1980s, being a description made by another member of the Tribunal in another review involving an Indian citizen from the Punjab region. The principles which govern this question are not in doubt. They were considered by Wilcox J in Leck v The Minister (1993) 43 FCR 100 (at 122) and by Beazley J in a passage relied upon by the applicants here in Huluba v The Minister (1995) 59 FCR 518 (at 529). It is clear that whilst normally it may be appropriate for a decision-maker to adopt a summary of a general situation prevailing in a country at a particular time, it is not, at least generally speaking, open to a decision-maker to adopt, without more, statements made by another decision-maker by way of a description of the specific circumstances of a particular applicant. In the present case, the summary of the position that was adopted by the Tribunal was no more than a description of the situation in the Punjab in the 1980s, which was common ground. Those facts were notorious and very much in the public domain both in this country and elsewhere. As has been seen, the Tribunal noted in its reasons that the Punjab "was wracked by terrorism and brutality". That was a fair summary of earlier material cited by the Tribunal which, indeed, as I have said, was and must have been common ground between the parties. On the other hand, when the Tribunal came to address the specific situation of the first applicant, it is not and could not be suggested that the Tribunal did no more than adopt a statement made by another member of the Tribunal in another review. When it came to consider the particular situation of the first applicant in the present matter, the Tribunal focused upon his actual circumstances. It follows then, that I can see no substance in this first submission. It was next submitted on behalf of the applicants that the Tribunal erred, in the passage previously cited, in the expression of its conclusion that the applicant "would face only a very remote chance of serious harm". Attention is concentrated on the use of the word "remote." It is submitted on behalf of the applicants, that to this extent, the Tribunal misunderstood the appropriate "real chance" test, as explained in Chan v The Minister (1989) 169 CLR 379. In my opinion, when the reasons of the Tribunal are read as a whole, there is no warrant for the submission now made. Early in its reasons, the Tribunal said: