Chan Yee Kin v The Minister for Immigration and Ethnic Affairs

. undated certificate of Jagat Singh, the applicant's father, that his son Karnail Singh remained "an active and peaceful member" of the AISSF, but had left India as his life was in danger and that the police are still searching for him . undated certificate of Kashimir Singh that he has known Karnail Singh since birth, that he was "an active and peaceful worker" of Student Sikh Federation, and he had left India as his life was in danger and that the police are still searching for him . letter dated 27 June 1996 from Jatinder Singh that Jarnail Singh has "un-necessary relations with the extrimists (sic) rebels and terrorists and is member of Khalisstan liberation Force. During his staying period in India he did many criminal cases. He has been under the police custody but however he ran from the Jail and the local Police daily comes to his home to arrest him" . certified and translated extract dated 25 September 1995 from births record, certifying the birth of Jarnail Singh on 30 November 1958 . school leaving certificate issued 29 September 1995, indicating Jarnail Singh born 30 November 1958 attended the Government Primary School, Chhokran until 1972 . birth certificate (in Urdu, partly translated) apparently issued on 25 September 1995 and (so far as the translation discloses) referring to a person born on 30 November 1958 . Passport M665747 in the name of Karnail Singh, issued on 28 December 1992, identifying date of birth as 6 May 1960, and describing visible distinguishing marks as scar on right leg . Passport G633956 in the name of Karnail Singh, issued on 23 May 1990, identifying date of birth as 6 May 1960, and describing visible distinguishing marks as scar on right leg . Passport U135269 in the name of Karnail Singh, issued on 11 May 1983, identifying date of birth as 6 May 1960, and describing visible distinguishing marks as scar on right leg . photocopy Passport M313207 in the name of Jarnail Singh, issued on 5 December 1977, identifying date of birth as 30 November 1958, and describing visible distinguishing marks as scar on left leg. On 18 December 1982 the validity of that passport was extended to 4 December 1987. . five photocopies of Warrants of Arrest in the name of Karnail Singh. As noted by the Tribunal, the Document Examination Unit of the respondent's Department, by report dated 18 December 1995, reported the opinion that:

. the passports appeared to be genuine . the warrants of arrest appeared to be counterfeit . the school leaving certificate appeared to be counterfeit. It did not report on the birth certificate documents. THE TRIBUNAL'S FINDINGS With some hesitation, the Tribunal accepted that the material before it showed that there was a person named Jarnail Singh born on 30 November 1958. However, it found that the applicant's real name was Karnail, and that the documents submitted in the name of Jarnail Singh were presented for the fraudulent purpose of proving that his real name was Jarnail Singh. As that finding is attacked by the applicant, it is appropriate to refer to the Tribunal's reasons for that conclusion. The Tribunal said: "... at the hearing when asked his true date of birth the applicant replied that it was 23 November 1958. He was asked again and he repeated the same date. When asked why it was that the documents which he claims are his birth certificate and school leaving record in each case show his date of birth as 30 November 1958 he could offer no explanation. By way of contrast, at the Departmental interview when the applicant was asked why the copy of the passport in the name Jarnail Singh carried the birth date 30 November 1958 rather than the birth date shown in his current passport he replied that this was the 'real date'. If the applicant's real date of birth was 23 November 1958, as he stated at the hearing, then I do not see why he would have said that it was 30 November at the interview or why his passport and other documentation in the name of Jarnail Singh carry the date 30 November 1958. ... To accept that his real name is Jarnail and that his date of birth 23 November, it must also be accepted that the Registry of Births and Deaths has the applicant's date of birth wrong. The alternative is that he has gone through life thinking that he was born on 23 November when in fact he was born on 30 November. I find both these possibilities unbelievable and, when taken into consideration with the other evidence before me, I do not accept that the applicant's real name is Jarnail. ... My finding that the applicant's real name is Karnail is further supported by conflicting evidence given by the applicant in relation to how he obtained a passport in that name. At interview it was pointed out to the applicant that, according to the Department of Foreign Affairs and Trade (DFAT), a Central Bureau of Investigation (CBI) inspector visits passport applicants to confirm their identity and address. When asked by the interviewer how he overcame this problem in obtaining a passport in a false name, the applicant replied that the CBI inspector first visited the local police station where his cousin who was a policeman worked, and that his cousin told the inspector that he knew the applicant and paid the man a bribe so that he would not checkup on the applicant. Apart from the fact that this explanation relies on the happy coincidence of the inspector dropping into the police station where the applicant's cousin happened to be working, at the hearing when asked how he was able to assume a new identity and obtain a passport in that name, the applicant made no reference to this account; he merely said that he paid money to an agent who took care of everything and that he himself knows nothing of the details. My finding that the applicant's real name is Karnail is also supported by letters from the applicant's father and the village headman both of whom refer to him throughout as Karnail and make no mention of the name Jarnail." I note that the Tribunal may not have apprehended that each of the passports issued in the name of Karnail Singh refers to a date of birth of 6 May 1960, although it does mention a departmental interview referring to a birth date shown on his "current passport", nor does it appear to have noted discrepancy in the visible distinguishing marks: Karnail's scar is on the right leg, and Jarnail's scar is on the left leg. Those matters could only serve to reinforce, rather than negate, its conclusion. The Tribunal found that the arrest warrants were forgeries. It then considered the applicant's other claims. He had given different versions at stages of the consideration of his claim as to the organisations he had been involved with, and the extent of his participation. It noted the information from his father as to his involvement. It concluded: "Having regard to this and the various versions the applicant has given of which organisation he was a member of, I have reservations about whether he was, in fact, a member of any organisation. However, I will extend the benefit of the doubt to him and accept that he was a member of at least one Sikh organisation." It found that he was but a minor member whose main activity consisted of attending meetings. It rejected his claim that he organised six or seven rallies between 1983 and 1994 agitating for a separate Sikh State, although he may have attended some, as he had said in evidence that he was not a leader, nor in the forefront of the rallies, and had been outside India for all but six mainly brief visits home over those years. It rejected as unreliable information in the letter from Latinder Singh, as it was not consistent with the applicant's own evidence. It found that there is no reason to believe that delivery of ammunition by the applicant for militants (if he did that) was known to the authorities; either the police knew of his whereabouts since 1983 and could have arrested him on his visits home, or if they did not know of his whereabouts it was beyond credence that they should still visit his home 'daily' or frequently. I interpose that the Tribunal had, by this point in its reasons, rejected the proffered explanation that they were looking for Jarnail Singh not Karnail Singh. The Tribunal did not make a specific finding about the applicant's arrest in 1983 except to conclude that, assuming it occurred, the prompt release of the applicant and his ability to return home periodically thereafter (his passports disclosed fifteen movements through Indian passport control in that period) indicated that he was not of continuing interest to the authorities. Again, one critical fact in that conclusion is that he had not changed his name. The Tribunal concluded: "To summarise, I accept that the applicant had some low level involvement with one or more Sikh organisations. He may also have been involved in transporting arms on occasion, though if this were the case then there is no reason to believe that the authorities were aware of it. If, as he claims, he was arrested on suspicion of harboring militants and/or hiding arms on his farm, on his own evidence he was released after a few days which I am satisfied would not have happened if the authorities believed that he was involved in such activities. ... I accept that he attended meetings and some rallies on his return visits to the Punjab, but on his own evidence he never experienced any difficulty because of this. I have no doubt that the arrest warrants he has submitted are forgeries and I do not accept that the authorities have any interest in him." As the Tribunal's assessment of the political situation in Punjab was also the subject of a ground of review, I refer briefly to that. It found that from early 1993, substantial change for the better in the overall security situation in Punjab had occurred. It relied upon information from the Department of Foreign Affairs and Trade and from the United States' State Department Country Reports on Human Rights Practices for 1994, articles in the Far Eastern Economic Review, The Economist and in India Today and other newspapers and journals, and from academics with a particular knowledge of and interest in that region. It concluded, that having regard to all the evidence, separately and cumulatively, there was only a remote chance of the applicant being persecuted by reason of his Sikh religion or his political opinion were he to return to India. THE GROUNDS OF REVIEW The amended application sought to invoke ss 476(1)(g) and 476(1)(d) of the Act. The attack on the Tribunal's reasons under s 476(1)(g) identified thirteen findings of fact in respect of which it was asserted that there was no evidence to justify the making of the decision, but they can be dealt with in four groups: (a) the conclusions that the applicant's subjective fear of persecution is not objectively founded, and that there is only a remote chance of his being persecuted for reasons of his Sikh religion or his political opinion were he to return to India, (b) the findings that the birth certificate and school leaving certificate are in the name of Jarnail Singh, and that he submitted fraudulent documents to prove his name was Jarnail Singh, (c) the findings as to the extent of his membership of, and participation in the activities of, Sikh organisations and of the authorities interest in him, and (d) the findings as to the improving human rights situation in Punjab. I shall deal with each of those in turn. Before doing so, it is desirable to refer briefly to the relevant provisions and certain cases dealing with them. Section 476(1)(g) of the Act provides: "that there was no evidence or other material to justify the making of the decision." It is elucidated, and limited, by s 476(4) which provides: "The ground specified in paragraph (1)(g) is not to be taken to have been made out unless: (a) the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or (b) the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist." Those provisions are in the same terms as ss 5(1)(h) and 5(3) of the Administrative Decisions (Judicial Review) Act 1977 ("the ADJR Act"). As I remarked in Malik v The Minister for Immigration and Ethnic Affairs (4 April 1997, unreported at 25-26) the difference between subs (4)(a) and (b) as discussed, for example, by Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 358 includes reference to a "lesser burden" which arises under subs (4)(a) because it operates only if a particular matter is required to be established. No particular matter has been identified, either expressly or by implication, relevant to the present application. The expression "particular fact" in subs (b) also clearly illustrates that this ground of review is directed to findings made along the path to a general conclusion, rather than to the general conclusion itself. It is of course confined to findings which are critical to the making of the decision: Curragh Queensland Mining Ltd v Daniel (1992) 34 FCR 212 at 220-224 per Black CJ. It is in my view clear that this ground of review is not intended to provide an overall review on the merits. The expressed grounds, and in particular the two which are reflected in group (a) above, conclude with the words: 'there was no evidence to justify the making of this decision'. As O'Loughlin J has pointed out in Istvan Magyari v The Minister for Immigration and Multicultural Affairs (22 May 1997, unreported), such an assertion really misconceives the nature of this ground of review. His Honour said (at 10): "The prosecution of this application in this Court highlights the need to emphasise that there is only a limited right of review by this Court of the Tribunal's decision in such matters. This Court is not entitled to engage in a fresh assessment of the evidence or other material that was considered by the Tribunal. It cannot substitute its own opinion for that of the Tribunal and can only interfere by way of review if one or more of the grounds set out in sub-s 476(1) is made out." Sackville J made the same point in Xiang Sheng Li v Refugee Review Tribunal (23 August 1996, unreported). To succeed, in the absence of a particular identified or identifiable matter for the purposes of subs (4)(a), I think the applicant must isolate the relevant fact, establish that it is significant in the chain of reasoning leading to the conclusion, and show that on the evidence that fact did not exist. In making a finding on a particular fact, the Tribunal is entitled to have regard to direct evidence, and to draw inferences from evidence available to it. Such inferences may well follow from its acceptance or rejection of a particular witness' evidence in whole or in part. It may make findings and reach conclusions, in the light of the evidence, based upon what it determines to be inherent likelihood, or may reject evidence for its inherent unlikelihood or for other reasons. And, as O'Loughlin J said in Magyari (above, at 9), not every observation or comment of the Tribunal will constitute a finding of a particular fact. The two matters referred to in group (a) above have already been referred to. In my view, the attempted use of s 476(1)(g) as a vehicle to support that attack is misconceived for the reasons stated. It is really no more than an invitation to review the merits of the decision. In any event, even if that subsection is available for such an attack, there was clearly evidence referred to by the Tribunal upon which it made primary findings of fact and upon which the conclusions reached were available. It is really only if the applicant successfully attacks a particular finding which is, in the relevant sense, integral to the conclusion that he will succeed. The grounds in group (b) above, although potentially available under subs (4)(b), are not made out. The Tribunal's reasons and the foundation for them, are set out in some detail above. It accepted that Jarnail Singh existed, but that the applicant was not that person. There is, from its reasons, identified evidence to justify the particular findings. I was concerned during the course of submissions that the Tribunal had misconceived the date of birth on the applicant's passports, and that there was no evidence the date it assumed was in fact his date of birth and that that misconception might have itself constituted a relevant particular fact for the purposes of s 476(4)(b). However, even if that misconception existed, and it is not clear that it did, there are two points to be made: firstly, the relevant particular finding is more accurately stated that 30 November 1958 was not the applicant's date of birth, and secondly, any misconception worked if anything to put a more favourable rather than a less favourable light on the applicant's claim which the Tribunal was then considering. I have noted that the Tribunal did refer to the date of birth on the "current passport", which is clearly 5 June 1960, and the decision of the respondent which it was reviewing clearly identifies that as the date of birth; I am not therefore persuaded that the Tribunal misconceived the effect of the documents as to the applicant's date of birth in any event. Counsel for the applicant characterised the particular facts which were found, but which did not exist, as the fact that each of the passports in evidence was not a genuine passport of the applicant and secondly that the applicant's date of birth was not 30 November 1958 (if it is proper to express findings in that negative way). As to the first, it is only the passport in the name of Jarnail Singh about which the Tribunal made such a finding. I have concluded, for the reasons given, that it is not established that those facts did not exist; to put the matter positively, there was evidence from which the Tribunal could have, and did, arrive at those findings. The findings in group (c) above were not strongly attacked in submissions, because they were largely dependent upon the applicant succeeding in his attack on the findings in group (b) above. I have however reviewed each, in the light of the Tribunal's reasons. On the assumption that the Tribunal, when referring to a piece of evidence had before it that piece of evidence, and no suggestion to the contrary was put, in my view this attack must fail. The Tribunal has identified evidence from which it made those several findings, so that it follows that it is not made out that the facts so found did not exist. The findings in group (d) above are reflected in ground 1.13 of the amended application which asserts: "The Tribunal made various findings from pages 14 to 20 of his decision that the human rights situation in the Punjab has continued to improve and the Tribunal Member referred to several Australian Department of Foreign Affairs and Trade (DFAT cables) as well as articles from various newspapers, as well as opinions from two academics to support his findings. The DFAT cables, the newspaper articles, and the opinions from the academics are statements of opinion rather than constructions of facts. The DFAT cables and the newspaper articles as well as the opinions from the academics upon which the Tribunal Member justified the making of his decision contained opinions and not facts. There is an extraordinary weight of evidence and material which was placed before the Tribunal from Amnesty International, and various other world authorities that the human rights abuses which are occurring in the Punjab are not improving. There was no evidence or other material to justify the making of the Tribunal's decision." The Tribunal is not bound by technicalities, legal forms or rules of evidence: s 420 of the Act. Section 476(1)(g), in referring to "other material", recognises that the Tribunal may inform itself by reference to material which does not strictly speaking fall into the category of "evidence". It receives copies of all relevant documents from the departmental file: s 418(3). It is also noteworthy that ss 426 and 427 are expressed in terms of it receiving or procuring evidence or documents, either from the applicant or at the applicant's behest, or on its own initiative no doubt in fulfilment of the direction contained in s 420 of the Act. Consequently, I do not think it can be said that the Tribunal was not entitled to look to the sort of material which its reasons refer to. That the term "evidence" is one not entirely helpful in the context of administrative decision making is recognised in The Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 136 ALR 481 per Brennan CJ, Toohey, McHugh and Gummow JJ. Lindgren J in Ignacio v Minister for Immigration and Ethnic Affairs (9 August 1996, unreported) has taken the same view. I should however note the caution which French J in Gunaseelan v The Minister for Immigration and Multicultural Affairs (9 May 1997, unreported) has expressed about too ready a use of secondary materials for such findings. His Honour said (at 8-9): "In concluding this section on the Tribunal's findings of fact and evaluation of the application, I do so with a reservation concerning the basis of its fairly generally expressed conclusions about the position of ethnic Indians and of political dissidents in Malaysia. That is not to say those conclusions were wrong. This application for review of the Tribunal's decision does not require the Court to canvass the correctness of its findings of fact. However the apparent methodology of reference to a few published articles and reports, including material from regional news journals, seems less than satisfactory as a basis for important decision making in the public arena which will significantly affect the lives of individual applicants and which may also involve reflecting upon the political and legal systems of other countries." In this particular instance, apart from the reports of the Department of Foreign Affairs and Trade and the United States State Department, which probably fall into a different class of material in any event, the Tribunal also procured expert oral evidence from three academics for the purpose of reaching its conclusion. In my judgment, there was therefore evidence and other material to support the particular findings, so it has not been made out that the particular findings do not exist. The applicant did not put before the Court all the material before the Tribunal upon which he asserts that "there is an extraordinary weight of evidence and material" to the contrary of those findings, so to that extent this ground of review was not pursued. It is likely that such material would only demonstrate that an alternative set of findings on the merits might have been, but was not, made. The other section invoked by the applicant is s 476(1)(d) construed pursuant to s 476(3)(c) of the Act. Those subsections provide a ground of review: "(1)(d)that the decision was an improper exercise of the power conferred by this Act or the regulations;" being construed as being a reference to "(3)(c)an exercise of a discretionary power in accordance with a rule or policy without regard to the merits of the particular case;". In my view, that attack must fail. The decision whether or not the applicant was a refugee was not the exercise of a discretionary power. Lindgren J in Ignacio (above, at 16) reached the same conclusion. The applicant has not identified a rule or policy which the Tribunal is said to have applied, and none is apparent from its reasons. Finally, the Tribunal has clearly had regard to the merits of the particular case; its reasons demonstrate that. Accordingly, in my judgment, this application should be dismissed and I order accordingly.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: Counsel for the applicant: Mr M Clisby Solicitors for the applicant: Gilbert Santini Counsel for the respondent: Ms S Maharaj Solicitors for the respondent: Australian Government Solicitor Date of Hearing: 6 June 1997