Chan v Minister for Immigration and Ethnic Affairs

REASONS FOR JUDGMENT This is a proceeding by way of review of a decision of the Refugee Review Tribunal. It is not, of course, a full review, and it is not open to the court to re-examine the facts. Even as to issues of law, the court is restricted to errors falling within limited categories: Migration Act 1958, s 476. The applicant is a Sikh who left India on 24 February 1995 to come to Australia, where he claimed to be a refugee. The tribunal accepted that he had been, for all of his adult life, a member of Akali Dal, a Sikh political party which agitated over a number of years for the creation of an independent state of Khalistan. However, at the present time, Akali Dal is part of the governing coalition in the Punjab, together with a Hindu party. Notwithstanding this, there remains a faction of the party, known as the Akali Dal Mann faction, to which the applicant belonged, which is effectively in opposition and continues to be committed to the concept of Khalistan. Prior to 1993, according to evidence that the tribunal appears to have accepted, the applicant was engaged in political activity, although not as a leader, at the organisational level of the Akali Dal Mann faction. The tribunal recorded: "The applicant states that he had an active role with Akali Dal Mann. It included assisting with the organisation of rallies where party leaders would speak, the preparation and distribution of leaflets, arranging accommodation and protection for leaders attending rallies and making arrangements for the safeguarding of their arms. Leaders and militants had sometimes stayed at his home. They would usually stay for some days. The program for rallies was, the applicant said at the hearing, 'controlled by high command'. His role with Akali Dal Mann was to implement arrangements so that the rallies could take place." In 1993, the Indian authorities took action in relation to the applicant. His home and workplace were raided, and his son was questioned. The applicant went into hiding, but in August 1993, when he had returned home, he was arrested, detained for five weeks, and "beaten, tortured and questioned about harbouring and feeding militants in past years". Bribes were paid to secure his release. According to the applicant, after that, because he feared further arrest, he went into hiding, staying with different relatives. His wife and children used to visit him. He limited his political activities to tasks behind the scenes. This appears to have gone on for over a year, during which there is no suggestion that he was again arrested. But the applicant alleges the police remained interested in his family, and kept asking where he was. He moved to Delhi a few months before his departure to Australia. In determining whether the applicant was entitled to a protection visa as a refugee within the well known definition in the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, the tribunal clearly placed great reliance upon information it had gathered about the state of affairs in the Punjab. It set out the following: "Information available to the Tribunal confirms that serious human rights abuses were committed by the Punjabi police in their efforts to suppress the Sikh movement which had been smouldering for some years and which became increasingly militant following the attack by government forces on the Golden Temple in 1984. Thousands of people on all sides of the conflict died in the disturbances over the following years. The security situation in the Punjab has improved since 1992 but there have been some eruptions of violence since that time ('India' The Far East and Australasia 1997 London, Europa Publications, 1996 p 312 - 313, 317). The United States Department of State has reported that India is making progress in resolving human rights problems. 'In Punjab the pattern of disappearances prevalent in the early 1990s appears to be at an end. Hundreds of police and security officials have not been held accountable for serious human rights abuses committed during the counterinsurgency of 1984-94. However, steps have been taken against a few such violators' (United States Department of State Country Reports on Human Rights Practices 1996: India Section 1(b)). The report confirms that 'torture is common throughout India and that the authorities often use torture during interrogations' (Section 1(c)). Detention for extended periods without formal charges has also been common (Section 1(d)) and powers in relation to monitoring telephone conversations and intercepting mail have been used by every state government (Section 1(f)). While there are efforts to bring the Punjabi police under control, the ingrained culture of using force and other unacceptable methods will take some time to change. People who are not high profile militant suspects are, however, generally not considered to be at risk in the Punjab today. A family member of a high profile individual or someone who provided shelter for militants during the height of the insurgency would not now be considered a high profile suspect. Nor would a person who simply held a pro-Khalistan opinion. There is also much better access to judicial recourse if people are treated improperly than existed previously. Lists of habitual offenders are kept throughout India and this information is shared among jurisdictions. In the past, Punjabi police travelled outside Punjab in order to track down people suspected of militant activity (Canadian Immigration and Refugee Board Documentation, Information and Research Branch India: Information from four specialists on the Punjab 17 February 1997). Akali Dal is a Sikh political party composed of both moderate and militant factions. Among other things, the party advocates an independent Sikh nation - Khalistan ('India' The Far East and Australasia 1997, cited above, p 339). The party is organised at village, group, district and state level and in 1986 was reported to have around one million members (Day, Allen J, editor, Political parties of the world London, Keesings Reference Publications, 1988 p 265). Freedom of religion exists in India and all faiths generally enjoy freedom of worship. There are, however, tensions between religious groups which challenge the secular foundation of the Indian State (Country Reports on Human Rights Practices 1996: India Section 2(c), cited above). At the hearing the applicant and his witness said that they did not agree with the information which I put to them about the improved security situation in Punjab. They said that the authorities controlled the communication of news about what was happening and that the true situation was not allowed to be reported. The United States Department of State in its report on human rights in India for 1996 indicates that India enjoys freedom of the press and that newspapers and magazines regularly publish investigative reports and allegations against the government. Foreign journalists have travelled freely and reported on matters critical of the government. While there are laws which enable the government to restrict publication of sensitive stories, these provisions appear to be used infrequently. National radio and television services are government monopolies and are frequently accused of manipulating the news to the benefit of the government (Country reports on human rights practices: India 1996 Section 2(a), cited above)." It seems to me that some of the matters set out in this general statement of the position in the Punjab, and indeed in India, were particularly significant for the tribunal's assessment of the applicant's claim to be a refugee. One such matter is the statement that people "who are not high profile militant suspects are … generally not considered to be at risk in the Punjab today" and that "someone who provided shelter for militants during the height of the insurgency would not now be considered a high profile suspect". Another is the comment, clearly by way of rejection of evidence given by and on behalf of the applicant, that "India enjoys freedom of the press and that newspapers and magazines regularly publish investigative reports and allegations against the government"; also that "[f]oreign journalists have travelled freely and reported on matters critical of the government". What the tribunal was indicating was that it did not accept the express or implied denial by the applicant and his witnesses of assessments conveying a relatively peaceful picture of the current situation in the Punjab. As the tribunal of fact, it was entitled to weigh the evidence adduced by the applicant against the information available to it. The point was put by McHugh J in Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 at 428, when he said "the State parties to the Convention and Protocol will frequently have detailed knowledge of conditions in the country of the applicant's nationality. It is unlikely, therefore, that a State party was expected to grant refugee status to a person whose account, although plausible and coherent, was inconsistent with the State's understanding of conditions in his or her country of nationality." The tribunal did indeed reject the applicant's case, and in doing so it stated: "The applicant said that he had not taken part in militant activity. I do not consider that the activities with which he was involved are of a character which could be described as high profile or militant although they were no doubt very important to the organisation. I therefore do not consider that he would now be at risk of arrest, torture and detention because of the activities he undertook for Akali Dal Mann in India or for working with the party if he were to return to India." The tribunal pointed out that the applicant had been released in 1993, a date much closer to the persistence of serious armed conflict than the present date. After that, for over a year he had been able to keep out of the clutches of the police, although he said they were looking for him. The tribunal commented that, during the insurgency, the police "adopted a very heavy-handed approach to searching out people suspected of involvement in militant activity". It plainly inferred that either the police did not really so suspect the applicant, after they had released him following his arrest and questioning in 1993, or that over the period to 1995 the situation stabilised to the point where a person not involved in current militant activity was no longer at risk. The tribunal expressed the view that, had the police wanted to do so, they could have found and arrested the applicant before he left India. Documentary evidence emanating from party officials, village leaders and the applicant's wife was produced to the tribunal in an endeavour to convince it that the applicant was still a target of the authorities in India. In particular, it was suggested that his participation in a demonstration in 1996 at the Indian High Commission in Canberra had resulted in threats being made to his family in the Punjab, and even to torture of his wife and son. However, the tribunal did not accept this evidence as accurate. It commented: "On the basis of how the applicant described his role with Akali Dal Mann and the Sikh movement generally and the information before the Tribunal on the types of Sikh activists of continuing concern to the Punjabi authorities, I am not satisfied that he is the subject of continuing attention of the kind which he has claimed. I note that the applicant's evidence in relation to what has happened to his wife has changed. I do not accept that his evidence that she was detained, tortured and threatened following the applicant's participation in the demonstration in Canberra is accurate and consider that it was submitted to the Tribunal after the hearing in an endeavour to provide corroborating evidence in support of his claims for a protection visa. Had what has been claimed in relation to his wife in fact occurred, I consider that the applicant would have known about it and would have mentioned it at the hearing." As to this part of the reasons, I do not think there can be any valid complaint concerning the logic by which the conclusion was drawn that the tribunal's general information about the situation in the Punjab provided ground for rejecting the suggested continuing harassment of the applicant's family and pursuit of him. But the tribunal's comment that the complaint concerning the treatment of the applicant's wife was in the nature of an afterthought was subjected to criticism. It is true that there was some prior evidence to a similar effect to which the applicant can point; but that does not mean that the tribunal was not justified in making its comment about the elaboration of the matter which was presented only after the conclusion of the hearing. I do not think any error of law occurred in this respect. Counsel also complained about another comment by the tribunal adverse to the applicant's credit. This was to the effect that his evidence suggesting his departure from India had been achieved only with difficulty was not to be accepted, since he had in fact used his own passport, which would have revealed his identity to the authorities at the airport, and he had not originally asserted "that his departure from India was not straightforward". Counsel's argument attacking this part of the reasoning as distinctly flimsy has, in my opinion, a great deal of force. After all, the applicant had much more important things to complain about than having to persuade or bribe an official at the airport, something which it is well known may have to be done in many parts of the world, even under relatively normal circumstances. That the applicant should have indicated in filling in a form on his arrival here "that he had left India legally", if it suggests any conflict with his present story, certainly does not do so unequivocally. He did have a legal passport. However, the comment of the tribunal in question is quite peripheral (cf Mehrok v Minister for Immigration and Multicultural Affairs, Lehane J, unreported, 14 July 1998); the real point being made was that, even in early 1995, the applicant did not appear to be high on any list of wanted persons. Immediately after the passage which has been criticised, the tribunal went on to state: "I have found that the applicant has a very significant role in Sikh religious affairs but that his involvement in political activity was not of a type which would attract the continuing attention of the authorities now." In many respects, the applicant's argument amounted to an invitation to reconsider the factual issues determined by the tribunal. That, of course, is not open to the court. Insofar as the argument suggested that the court should infer an unidentified error of law on the basis that the findings were inconsistent with any rational application of the law to the facts, I accept that this argument does raise a question of law. As Dixon J said in Avon Downs Proprietary Limited v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360: "If the result appears to be unreasonable on the supposition that [the decision maker] addressed himself to the right question, correctly applied the rules of law and took into account all the relevant considerations and no irrelevant considerations, then it may be a proper inference that it is a false supposition. It is not necessary that you should be sure of the precise particular in which he has gone wrong. It is enough that you can see that in some way he must have failed in the discharge of his exact function according to law." This was the proposition which Davies J referred to in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 307 and in Commonwealth Bank of Australia v Human Rights and Equal Opportunity Commission (1997) 150 ALR 1 at 10. However, I do not think an error of law can be inferred from the findings and conclusion upon the material put before the tribunal in the present case. On the contrary, I think the tribunal's conclusion was open to it, having regard to the admitted change in the situation in the Punjab over recent years. For the applicant, it was also argued, upon the basis of the law as stated in Epeabaka v Minister for Immigration and Multicultural Affairs (1997) 150 ALR 397 at 401-402, that the tribunal erred in law by virtue of "a failure to rationally consider probative evidence". This proposition was based on the tribunal's rejection of evidence suggesting the applicant is of continuing interest to the authorities in the Punjab, a rejection supported by the tribunal's acceptance, to which I have already referred, of general evidence indicating a more peaceful state of affairs in the Punjab than the applicant's evidence asserted. As to this, it is sufficient to say that I can see nothing irrational in the tribunal's conclusions, although other minds might have drawn different conclusions. Counsel for the applicant then argued that the tribunal had not observed the obligations imposed on it by s 420 of the Migration Act. He claimed that the tribunal's procedures in this case were unfair. Much was made of the fact that another tribunal, dealing with a similar case, had made a more extensive examination of conditions in the Punjab. However, it does not seem to me that one tribunal can be found to have erred in law because another tribunal has done the job more thoroughly. The question is simply whether what this tribunal did can be said to have been unfair. In my opinion, the evidence before this tribunal did not require it, as a matter of fairness, to make any enquiries which it did not make, or to consider any matters which it did not take into account. It was entitled to rely on the information it had, revealing that there had been a return to a fair measure of peace in the Punjab. Having regard to that information and the particular information placed before it by or on behalf of the applicant, it was entitled to reach the conclusions of fact which it did reach. On the basis of those conclusions, the applicant failed to make out a case of the well-founded fear within the meaning of the Convention for which he was contending.