A v Refugee Review Tribunal [1998] FCA 396

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 16 of 1997

BETWEEN: "A"

Applicant

AND: refugee review tribunal

first respondent

minister for immigration and

multicultural affairs

second Respondent

JUDGE(S): HILL J

DATE OF ORDER: 17 APRIL 1998

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. The application be dismissed. 2. The Applicant pay the Respondent's costs. 3. The name of the Applicant not be published and not be disseminated beyond those today in Court, the legal advisers and the parties.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VG 16 of 1997

BETWEEN: "A"

Applicant

AND: refugee review tribunal

first respondent

minister for immigration and

multicultural affairs

second Respondent

JUDGE(S): HILL J

DATE: 17 APRIL 1998

PLACE: MELBOURNE

EX TEMPORE REASONS FOR JUDGMENT The applicant, Mr A, appeals to the Court (the appeal being by way of judicial review) from a decision of the Refugee Review Tribunal, constituted by Mr Glaros, in which the Tribunal found it was not satisfied that he and his daughter were refugees. The Tribunal thus affirmed the decision of the second respondent, the Minister for Immigration and Multicultural Affairs, not to grant to them protection visas. The Tribunal set out in some detail what it referred to as "claims and evidence" advanced by Mr A on behalf of himself and his daughter. Some of those claims were perhaps controversial and not all of them were ultimately accepted by the Tribunal. Mr A is a national of India who entered Australia on 31 October 1993 as a visitor. He is a doctor in chemical engineering and a Sikh who, prior to coming to Australia at least, lived in New Delhi. It seems that he supported the Khalistan movement when it started in 1984, although the precise role he took in it, as he claimed, was not accepted in whole by the Tribunal. It suffices here to say that it would be common ground that there were riots in New Delhi in 1984 following the assassination of the Indian Prime Minister Indira Ghandi and as a result Sikhs were undoubtedly killed and their houses and temples destroyed. Mr A, in claims initially made to the Department of Immigration, set out his role initially as a messenger or as a conveyor of messages perhaps, who had come to the notice of the police who had questioned him. He claimed to have taken leave and worked for a company under a false name until policemen became suspicious of him and searched him. He resigned in 1992, sought a passport, paid a bribe and, ultimately, travelled to Australia. It was his position before the Tribunal that relocation to another state was not possible as he was easily distinguished as a Sikh by his turban and subject to what he claimed to be violent action, as had happened in the past. There were additional matters put to the Tribunal, including that Mr A had assisted those who planned to kill General Vaidya and young boys sent out of the Punjab to escape the police. He said that another activist who had been caught in 1992 had disclosed Mr A's name to the police, who now know he is in Australia and out of their net. As part of the evidence in his case, but submitted after the hearing, Mr A produced a letter (handwritten) from a Mr Gajinder Singh, the chairman of an organisation referred to as Dal Khalsa International, which stated that Mr A was a long-standing member of that organisation who had worked in the intelligence wing of it and that he had left India to avoid arrest and would be in danger if he returned. Nothing in Mr A's evidence referred directly to Dal Khalsa International or his being a member of it or involved in the activities which the letter refers to. The Tribunal, although with some reservations, accepted that Mr A had a subjective fear of persecution. However, it did not accept, that is to say, it was not satisfied that his fear of persecution was well founded within the meaning of the terms of the United Nations Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees, made applicable by force of criteria to be found in the Migration Regulations. As I read the reasons of the Tribunal, it found Mr A not to have a well-founded fear for two separate reasons. The first was the Tribunal's reliance upon various reports, including those from the United States State Department and the Australian High Commission, which suggested that there had been a real improvement in civil rights matters in the Punjab. For example, the Australian High Commission, in the most recent advice it had given dated 8 May 1996, said: "We can confirm our advice that there has been a wholesale political resolution of the separatist problems in the Punjab, a quantum leap in state officials' awareness of human rights issues and in their recognition of the need to eliminate practices which breach India's human rights obligations ... Controversial State Police Chief, K.P.S. Gill has been replaced by another highly respected and experienced officer who has a reputation for being meticulous in enforcing police officers' observances of correct procedures and human rights obligations." The second matter to which the Tribunal referred, although it had in respect of the first matter concluded that it was satisfied there was only a remote chance in the future of a revival of militarism and government reaction to it in the form in which it had existed until 1992, was the Tribunal's view that, in part at least, it did not believe a considerable amount of Mr A's evidence. Its reasons for not believing Mr A were largely that a good deal of it was not initially disclosed in interviews which Mr A had with departmental officers. It took the view that Mr A was both intelligent and fluent in English and that, particularly when pressed to accept that he had disclosed all relevant information, he would have disclosed to those interviewing him matters which assisted his case. The Tribunal also felt some of the explanations, such as the manner in which Mr A had obtained a passport and gone through passport control, lacked credibility. The Tribunal's conclusion was thus that the member was satisfied that if Mr A were returned to India, there was only a remote chance of his being persecuted by reason of his Sikh religion or his political opinion. At the time of making an application to the Court Mr A was represented by a solicitor who prepared a detailed application for review, which was subsequently amended. There are a number of grounds in that document to which I need not directly refer. In accordance with orders apparently made by North J, to whose docket the matter had been allocated, Mr A's solicitors filed contentions of fact and law upon which Mr A was to rely, a document which in turn was ultimately amended. That document and amendments to it were replied to in due course by the Australian Government Solicitor on behalf of the Minister. Unfortunately Mr A was not represented when he appeared before me. He explained to me that it was beyond his capacity to pay for such representation. While, of course, I understand the financial sacrifice which payment for legal services may often entail, I can only say that it is in the interests of those in the position that Mr A is in to do everything they can to obtain representation for it is very difficult for the Court when unhelped by submissions. I say this not with any criticism of Mr A. Indeed, in exchanges with counsel I have expressed the view which I would repeat, that it is to be hoped that both the solicitors and counsel branch of the profession do as much as they can to assist people in the position that Mr A is in, notwithstanding that a sacrifice is, of course, a result of such assistance. However, at least in this case I have had the advantage of a written document which sets out a lawyer's view of the matters which Mr A wished to put. Mr A himself made only brief submissions, preferring to rely upon the solicitor's writen submissions. He did make the point, however, that as far as he could see, other legal precedents to which reference was made in the course of submissions by both parties were all different from his case. He made the point also that he had not left India, where he was able to practise a good profession, for reasons other than that his life was, he felt, threatened. He pointed out, although it is a matter upon which there are no findings by the Tribunal and therefore I can not take into account, that there were cases listed for prosecution, and by inference his was one, which would not be withdrawn, with the result that his life might well be threatened either by prosecution or otherwise. Whether that is the case or not is, unfortunately, not a matter which is within my province. At the heart of the submissions put on Mr A's behalf is the view that the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621 permits an argument to be made both that the rules of natural justice have not been complied with and that an unreasonable decision in the Wednesbury sense can be set aside. The Minister has been granted special leave by the High Court to appeal and, no doubt, those matters, if found ultimately to be relevant to the decision, will be the subject of some discussion when the High Court delivers judgment. One can only hope that the end result is that government tribunals cannot operate unjustly and make unreasonable decisions. I cannot believe that is what the Australian people contemplate and I hope it is not what the legislature contemplated, although it is hard to resist the conclusion that it did. I do not propose in this case to enter into a discussion of the merits of Eshetu. If it turns out to be wrongly decided it must follow, of course, that Mr A would fail in respect of those matters. However, I am prepared for present purposes to accept that Eshetu does permit to be raised before me both issues of natural justice and issues of the power of the Court to set aside a decision unreasonable in the Wednesbury sense. Making that assumption, I turn to deal with the submissions which the advisers of the applicant have raised.