Singh, Baljit v Minister for Immigration & Multicultural Affairs [1998] FCA 1729

FEDERAL COURT OF AUSTRALIA Immigration – Review of decision of Refugee Review Tribunal which affirmed a refusal to grant a protection visa – whether Tribunal failed to conduct a review that met the requirement of s 420 of the Migration Act 1958 (Cth) – whether the review was unfair because the member constituting the Tribunal did not come to the matter with a fresh mind – member in another review concerning the applicant's former wife had rejected evidence on which the applicant relied as not authentic and implausible – decision set aside.

Migration Act 1958 (Cth), ss 420, 476

Matter No. SG 62 of 1998

BALJIT SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA J

18 DECEMBER 1998

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 62 of 1998

BETWEEN: BALJIT SINGH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: VON DOUSSA

DATE OF ORDER: 18 DECEMBER 1998

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application be allowed. 2. The decision of the Refugee Review Tribunal dated 23 April 1998 be set aside. 3. The matter be remitted to the Refugee Review Tribunal for rehearing by a differently constituted Tribunal. 4. The respondent pay the applicant's costs of the application to this Court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 62 of 1998

BETWEEN: BALJIT SINGH

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: VON DOUSSA

DATE: 18 DECEMBER 1998

PLACE: ADELAIDE

REASONS FOR JUDGMENT This is an application for review of a decision of the Refugee Review Tribunal (the RRT) refusing the grant of a protection visa to the applicant. Two grounds for review under s 476(1)(a) of the Migration Act 1958 (Cth) (the Act) are advanced. The first alleges that there was a failure to meet the procedural requirements of s 420(1), in particular that there was not a fair hearing by the RRT. The second alleges that there was a failure on the part of the RRT to meet the requirement of s 420(2)(b) to act according to substantial justice and the merits of the case. For reasons which will become apparent in due course, it is significant that no ground is alleged under s 476(1)(f), which provides for review where a decision is induced or affected by fraud or by actual bias. The applicant is a national of India who arrived in Australia with his wife, from whom he is now divorced, on 24 August 1996. He applied to the Department of Immigration and Multicultural Affairs for a protection visa on 13 February 1997. That application was rejected and he sought to have that decision reviewed by the RRT. The RRT hearing occurred on 14 April 1998. In his original application to the Department the applicant said that he was born in the Punjab in 1968. He is a Sikh. He married in 1991. He has two children in India. He attended school from 1973 to 1987. After obtaining a trade certificate in 1988 he practised the trade of an instrument maker until 1991, after which he worked on his family's farm because of his father's poor health. His application said that his father was an active supporter of the Shiromani Akali Dal. However, he, the applicant, had never personally had any involvement with any political party. He claimed to be a member of a particular social group, namely small farmers who lead lives of near poverty. He explained that the family's farm was a small one and it was unlikely in the longer term to provide a sufficient income for the whole family. As he was the father of two young children, he was concerned, and when the opportunity arose to come to Australia he decided to seek a better life. Not surprisingly, the application for a protection visa as a refugee was rejected by the initial decision-maker as it plainly failed to assert persecution on a Convention ground. The applicant sought to have the decision reviewed by the RRT. Eleven days before the RRT hearing, the applicant submitted to the RRT copies of four documents which were not supported by any accompanying submission. The documents were a statement from a spokesman and secretary of the Shiromani Akali Dal to say that the applicant was an active member of the party who had fled India because his life was in danger. The letter also made reference to human rights abuses against party members. The second document purported to be a warrant for the arrest of the applicant issued on 22 December 1997. The third document was a statement from an advocate dated 10 January 1998 to the effect that the police in the Punjab have registered a case against the applicant of sheltering terrorists and making war against the government of India by collecting arms. The letter said that the police were in "hot search" of the applicant and a warrant had been issued for his arrest. The fourth document contained information about human rights abuses in India, particularly against Sikhs. At the RRT hearing the applicant changed the basis of his claim for a protection visa. For the first time he asserted a political opinion as the basis for a reasonable belief that he would suffer persecution if he were to return to India. He said that he had been a member of the Bhindranwale Tiger Force since 1989 and of the Simranjit Singh Mann faction of the Shiromani Akali Dal since 1991. He said that he had been picked up by the police on various occasions since 1989 and had been subjected to beatings. He said that he took flight from India with his wife in 1996 because of the fear of further persecution. The applicant was accompanied to the RRT hearing by Mr Palminder Singh who gave evidence. He said that he was a friend of the applicant and had known him since about 1983. He said that he had returned to India for seven months in 1997, where he met the applicant's family. He learned from them that the applicant had been working in "the movement" and that the police were looking for him because of his activity with "the movement". The family also said the applicant had been arrested and tortured in the past. The RRT rejected the statement from the spokesman of the Shiromani Akali Dal, the arrest warrant and the statement from the advocate dated 10 January 1998 as not being genuine. The RRT found the evidence of Mr Palminder Singh unhelpful, and rejected the credibility of the applicant himself. The RRT concluded that the applicant had not been involved in any activity of a political nature in the Punjab and was not wanted by the authorities in India generally or in the Punjab in particular for such activities. In the light of those findings, the RRT held that there was no real chance that the applicant would face persecution in India for reason of political opinion and concluded that the applicant was not a refugee. The decision not to grant a protection visa was affirmed. On 30 January 1998 the RRT, constituted by the same member, had conducted a review of a decision on a claim by the present applicant's former wife, Mrs Paramjit Kaur. After Mrs Kaur's arrival in Australia with the present applicant, she too had claimed a protection visa. Her initial application did not assert persecution for a Convention reason, but alleged that she considered herself to be a member of a particular social group subject to persecution, namely divorced Sikh women in India. The Departmental decision-maker rejected her claim for refugee status and she too sought to have that decision reviewed by the RRT. On making her application to the RRT, Mrs Kaur gave details of her divorced status and relied substantially on the same grounds which she had advanced in the initial application. At the hearing, however, she advanced an alternative ground alleging persecution for an imputed political opinion, namely persecution arising from the activities of her husband which, she said, caused the authorities to impute to her an opinion akin to that of her husband. She said her husband was a member of the Shiromani Akali Dal. She gave evidence of him being arrested from time to time, beaten and subjected to persecution. She also said, belatedly, that her husband had been a member of the Bhindranwale Tiger Force. There were some inconsistencies between the details of the account which she gave at her hearing relating to the present applicant's activities and the account which he gave on the hearing of his application to the RRT. However, the substance of the allegations of persecution were basically the same. Mrs Kaur sought to support her new claim before the RRT by producing four documents. The first was a statutory declaration from Mr Palminder Singh. The statutory declaration did not otherwise identify him, but the substance of his evidence was that he had known Baljit Singh since 1995, knew of his activities in the freedom movement for Khalistan, had visited his family in the Punjab in 1997, and during that time had been told that the police were seeking the present applicant, whose life was in danger. The second document was a copy of the arrest warrant for the present applicant dated 22 December 1997. The third document was a copy of the letter to the present applicant from the advocate dated 10 January 1998. The fourth document was a copy of the letter from the Shiromani Akali Dal dated 29 January 1998. In its reasons for decision on Mrs Kaur's claim, dated 16 February 1998, the RRT found those four supporting documents, including the statutory declaration from Mr Palminder Singh, were not genuine and, further, the RRT rejected the credibility of Mrs Kaur and her evidence about her husband's activities. Counsel for the present applicant contends that, having regard to the rejection of Mrs Kaur's claim for refugee status and the reasons for the RRT's decision, the RRT constituted by the same decision-maker could not give a fair hearing, as required by s 420(1) of the Act, to the present applicant. In Singh v Minister for Immigration and Multicultural Affairs (1997) 77 FCR 440 at 451, Mansfield J referred to the recognised authorities on apprehended bias, commencing with Livesey v New South Wales Bar Association (1983) 51 CLR 288 at 293 to 294, and observed: "It is clear that a member of the Tribunal should not sit to hear a case if, in all the circumstances, the applicant might entertain a reasonable apprehension that that member might not bring an impartial and unprejudiced mind to the determination of the review." His Honour observed that those principles were not confined to judicial officers and proceeded: "The extent to which the principle applies in respect of particular administrative decisions under particular legislation will vary (R v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 553). I note that in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 313-314, Davies J in remitting the matter to the Tribunal observed: 'Necessarily, in a case such as this, procedural fairness demands that the matter be considered by a Tribunal member who comes to the matter with a fresh mind. However, that is so obvious a proposition, it need not be part of the formal order.' Although the principle expressed for example in Livesey is often described as one of the two basic limbs of the rules of natural justice, it is also by reason of the majority decision in Eshetu, a procedural rule applicable to the Tribunal. The expressions in s 420 that the hearing must be 'fair' make that clear, and s 476(2)(a) does not preclude s 420 from having that effective operation." For the purposes of deciding this case, I accept the Eshetu decision, which holds that a failure to meet the procedural requirements laid down by s 420 constitutes a ground of review within s 476(1)(a) of the Act. I also respectfully agree with the observations of Mansfield J which I have just cited. It will be noted that his Honour has reached the conclusion that a hearing might not be a fair one within the meaning of s 420 where a Tribunal member does not come to the matter with a fresh mind, and it is not necessary that the circumstances be such that actual bias can be demonstrated so as to bring the matter within s 476(1)(f). Indeed, in this case an allegation based under s 476(1)(f) is not made and counsel for the applicant has made it plain in his submissions that he is not seeking to establish actual bias. The question therefore is whether in the circumstances of this case it can fairly and reasonably be said that the Tribunal member did not come to the present applicant's matter with a fresh mind. In my opinion that requires an examination of the grounds of the earlier decision and whether the judgment already formed and expressed by the Tribunal member on central allegations in Mrs Kaur's case dealt with the same allegations and supporting evidence which the applicant sought to rely upon in his case. Counsel for the Minister contends that the RRT in Mrs Kaur's case did not reach conclusions on the same issues but based its decision on the rejection of Mrs Kaur's credibility. Her credibility, so counsel contends, was not an issue in the present applicant's case, so that the decisive issue in each of the reviews, namely credibility, was different. I do not accept that submission. In the decision on Mrs Kaur's claim the RRT said that it gave considerable weight to the absence of any reference in the application by the present applicant for his protection visa to any mention of the political activities subsequently asserted. The RRT said that it did not accept as plausible the explanation for the failure to mention any of these claims which Mrs Kaur provided. Mrs Kaur said the allegations of political activity were not raised initially because the present applicant was afraid that the police would harass his parents, and their children could also be in danger if the information got back to the Indian authorities. She said that she was now satisfied that information given to the Australian authorities would not leak back to India and "we" can now disclose our true involvement in the Khalistan freedom movement. She went on to say in a written submission, dated 11 February 1998, that: "My husband belonged to the Simranjit Singh Mann Akali Dal, political group and my husband and I supported that Bhindrera Wale Tiger Force." The explanation was one being advanced, as it were, on the present applicant's behalf and it indeed constitutes the present applicant's explanation. The RRT therefore had passed judgment upon the plausibility of an important part of the present applicant's evidence in his case. Next, the RRT in Mrs Kaur's case expressed "great scepticism" that the allegation that Mrs Kaur and the present applicant supported the Bhindranwale Tiger Force was not made until very late in the piece. That criticism is one which has equal force in the claim of the present applicant as it had in the claim of Mrs Kaur. Further, in the RRT hearing concerning Mrs Kaur, the RRT held that each of the documents that she put forward were not authentic. Three of these were the very same documents which were advanced by the present applicant. The fourth document advanced in Mrs Kaur's case was the statutory declaration from Mr Palminder Singh, the witness put forward by the present applicant on his hearing. The evidence in statutory declaration form from Mr Palminder Singh in Mrs Kaur's hearing was said to be not authentic. It is of note that in the reasons for decision on the present applicant's review, the RRT in rejecting the three documents advanced by him, relied on the reasons for rejecting them given in Mrs Kaur's case. In Mrs Kaur's hearing the RRT said that it did not believe that the present applicant would have left Mrs Kaur without informing her where he was going, nor that he would have returned in order to make the suggestion of leaving the country. These are specific rejections of aspects of the present applicant's allegations as to his conduct. Further, the RRT observed that the present applicant and Mrs Kaur were not living together in Australia and said this suggested that Mrs Kaur's statement that she was forced to separate from her husband in order to avoid the harassment of the Punjab police was not true. Again, that is also an aspect of the present applicant's case. In my opinion the findings to which I have referred in Mrs Kaur's case were findings made on the very same evidentiary material that the present applicant relied on, and those findings effectively predetermined the outcome of his application for review. In these circumstances I consider it was impossible for the present applicant to get a fair hearing within the meaning of s 420 of the Act by the RRT as constituted. The review application by the present applicant should have been heard by a differently constituted Tribunal. In my opinion the present application must be allowed and the matter remitted for rehearing before a differently constituted Tribunal. The other ground advanced on the present application, in substance, alleged that the RRT did not act in accordance with substantial justice because it put matters to the present applicant which had arisen from Mrs Kaur's evidence. Counsel argued that the present applicant was "cross-examined", but that is a colourful and inaccurate description of what happened. The RRT put the matters arising from Mrs Kaur's evidence at the earlier hearing to the present applicant for his response. The procedural irregularity is said to arise because the RRT took what was otherwise an entirely proper course without first calling Mrs Kaur by subpoena to give evidence of those matters as part of the review hearing on the present applicant's matter. In my opinion the arguments advanced in support of that allegation are without substance. The arguments are effectively the same as those which I have rejected in reasons for decision today given in the application to this Court for review of the decision in Mrs Kaur's matter. The application will be allowed. The decision of the Refugee Review Tribunal under review will be set aside. The matter will be remitted for hearing by the RRT differently constituted. I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von Doussa