Doss v Minister for Immigration & Multicultural Affairs

THE REASONING AND FINDINGS OF THE TRIBUNAL 14 The Tribunal proceeded, correctly, upon the footing that it was for the applicant to persuade the Tribunal that all the statutory elements had been made out. After describing the applicant's specific claims and evidence, the Tribunal turned to consider some independent information about India. It said (at 12): "The Tribunal has undertaken extensive searching to find information on actions which have been taken by the authorities against left wing activists in India and Tamil Nadu in particular." 15 The Tribunal mentioned, inter alia, Amnesty International Reports for 1993 and 1997, and an Amnesty International publication - India: Submission to the Human Rights Committee concerning implementation of articles of the International Covenant on Civil and Political Rights (1997). 16 The Tribunal said (at 13): Amnesty International …reported [in 1993] that TADA [The Terrorist and Disruptive Activities (Prevention) Act] was used in Tamil Nadu in 1992 to detain people for pasting up slogans supporting a Sri Lankan armed opposition organisation … ." 17 The Tribunal said (at 13): "Amnesty International has reported that in 1997 'a number of reports were received about the use of false charges to quell dissent'. The particular example cited in the oragnisation's [sic] 1997 report was of sixteen women who took part in a protest about the Miss World Contest charged with causing damage by fire in Bangalore … Amnesty has also reported that the Tamil Nadu Prevention of Dangerous Activities of Bootleggers, Drug Offenders, Goondas, Immoral Traffic Offenders and Slum Grabbers Act 1982 provides for administrative detention of up to twelve months …." 18 The Tribunal accepted the claims of the applicant that he had "a long-standing commitment to communist ideals" and that he regularly undertook a variety of political activities, but "did not take part in violent or terrorist activities" (at 14). The Tribunal further accepted the applicant's claims that he was imprisoned, and was beaten and hurt in prison on a number of occasions, and that bribes were paid to assist in his release, and to avoid arrest. The Tribunal also acknowledged that the applicant belonged to a group associated with the CPI (ML), but found that the applicant's understanding of associated political organisations to be "confused" (at 14 - 15). 19 But some of the applicant's claims were not accepted by the Tribunal. It said: "Principal among these[claims by the applicant not accepted by the Tribunal] is his claim that left wing activists suffer persecution in Tamil Nadu and that he has so suffered because of his political views and actions. Other matters where I have doubts about the applicant's evidence are his claim that [the magazines the applicant sold] were illegal; about the charges which were laid against him because of his participation in demonstrations or because he broke his conditions of bail, the detentions he claims were imposed and the status of the cases before the courts; about the circumstances of his claimed arrest in Calcutta; about his parents being harassed, threatened and hurt by people associated with the mainstream political parties who wanted the applicant to stop his political activities; and that he fears that he would be harmed because of matters connected to his political activities if he were to return to India." (Emphasis added) 20 In relation to the applicant's primary claim, that is, that left-wing activists suffer persecution because of their political activities, the Tribunal said (at 15): "As stated above, extensive searching of a wide range of information sources was undertaken to find information on actions which have been taken by the authorities in India and in Tamil Nadu against left wing activists. The Tribunal is aware that there is violent conflict between Naxalite groups and the authorities, especially in Andhra Pradesh, and that some left wing individuals have been arrested for involvement in a strike and in some demonstrations. But in the context of Indian politics, where elections are vigorously contested and political issues are generally freely aired and argued, the incidence of actions against left wing individuals seems to me to be very low and relatively isolated (apart from those suspected of taking part in violent or terrorist activities who have been dealt with harshly). I note that the CPI (ML) was banned in India for two years in the mid 1970s but have found no independent evidence to support the applicant's claim that it or any of its factions (other than the Naxalites) have since been banned or are illegal in India or in Tamil Nadu today. India has demonstrated that it is a robust democracy where citizens can and do change their governments at regular and what are regarded as generally fair elections (although I note that the applicant does not agree that elections are fairly conducted). Left wing groups participate in the political process in many ways other than by contesting elections and nothing I have found suggests that individuals advocating communism are systematically prevented from taking part in political activities or putting their views publicly." (Emphasis added) 21 In relation to the selling of magazines, the Tribunal did not find anything illegal about the content of the publications, the way in which they were sold, or that the police would charge or imprison those found selling such publications (at 16). 22 The Tribunal then turned to the applicant's claim that the drug charges leading to his imprisonment in 1993 were fabricated, and were directed against him because of his political activities and beliefs. The Tribunal regarded this as "a central question … in considering the applicant's claim under the Refugees Convention" (at 17).

23 The Tribunal regarded the applicant's claims as "very confused" and concluded (at 17): "… together with the independent information about the limited response by the authorities to left wing activists in Tamil Nadu … I am unable to be satisfied that the charges laid against the applicant in 1993 were as a result of his political activities. I make no finding on whether the charges were fabricated or whether there was evidence to justify the police action but I do not consider that what occurred was connected to the applicant's political activities. I accept that he was committed to communist ideals, that he took part in protests and agitated against the government but the evidence does not in my view support a conclusion that the authorities would act to fabricate drug charges against him as a consequence of these political activities. In reaching this conclusion I have had regard to the applicant's description of his activities: what he did was, on his own evidence, centred on propaganda which may have annoyed the police and others but does not seem to me to have been of a character which would threaten the established political processes in a way which could lead the authorities to take such strong action against him so as to lead to charges and a sentence of seven years in prison." 24 The Tribunal was not satisfied that the applicant was charged and detained, on three separate occasions, for participating in political demonstration. The Tribunal member found that the applicant's account of his conditions of bail and his oral undertakings not to participate in protests was "confused", and that there was "no evidence" that "protesters in India are arrested and detained for such extended periods simply because they took part in a protest" (at 18). 25 The applicant's claim that failure to report to the police because of outstanding cases, failure to appear in court, and continued campaigning against the main parties resulted in a national organisation arresting him in Calcutta, was also (at 18 - 19) rejected by the Tribunal on the same basis: "…[the applicant's] activities were limited to distributing publications, speaking out about what was wrong with the government, placing posters and taking part in demonstrations … I do not accept that this kind of activity leads to people experiencing persecution in India unless they are involved in violent or terrorist activities and the applicant has said that he was not…." 26 The Tribunal (at 19 - 20) found that the claims of serious harassment and harm to both the applicant and his parents, because of the applicant's political activities, were "implausible". 27 The Tribunal accepted that bribes were paid, but rejected the claim that these were necessarily paid in order for the applicant to leave India because the Indian authorities had an intention to harm the applicant in order to suppress his political activities. 28 The Tribunal concluded that there was no evidence to support the assertion that, in India, left-wing activists engaged in political activists were persecuted, and, accordingly, Australia did not owe the applicant protection obligations under the Convention.

THE GROUNDS OF THE APPLICATION FOR REVIEW 29 The applicant's single ground for an order for review was expressed in his amended application thus: "1. Procedures that were required by the Migration Act 1958 to be observed in connection with the making of the Tribunal decision werenot observed in that the Tribunal failed to produce a written statement, in accordance with s 430 [s.476(1)(a)]. Particular The Tribunal erred by failing to address and make findings about the information before it about the risk protestors and dissidents face in India of being the subject of charges fabricated by the police. This information was contained in the DFAT response of 13 August 1998 (p.107-108), in the material from the Amnesty Report for 1997 set out in the Tribunal's reasons (p.92.5) and in the Amnesty International submissions of July 1997 (p.136-219). This information from independent sources went to the crucial issue on which the Tribunal's decision turned and the Tribunal was obliged to deal with it."

THE APPLICANT'S CONTENTIONS 30 The applicant's principal contention, developed in both written and oral submission, was that the Tribunal failed to properly consider "independent country information" which, the argument ran, supported the applicant's claim that his left-wing political activities in Tamil Nadu resulted in the falsification of criminal charges against him. 31 The applicant contends that the Tribunal had country information which corroborated the applicant's claim, in so far as that information referred to the possibility of police acting beyond their mandate by falsifying charges in India generally (i.e. the DFAT Cable), made references to reports in respect of false charges to quell dissent (i.e. the 1997 Amnesty Report), and provided specific references to forms of suppression and harassment conducted by the authorities against political activists (i.e. the Amnesty Submissions to the Human Rights Committee, July 1997). 32 The applicant relies upon the following material in Amnesty's 1997 Submission. "(a) In all parts of India protests are regularly suppressed by police using excessive force and allegations are widespread that false cases are filed against activists in an attempt to prevent them from carrying on their activities. (b) As well as those defending civil and political rights of citizens, those defending a broad range of economic, social and cultural rights have been singled out for harassment by the state. (c) Throughout India, poverty is one of the key factors determining vulnerability to human rights violations perpetrated by state officials and opportunities for redress. Amnesty International is aware of a number of cases in which police officials collude with politically, socially and economically dominant groupings, in perpetrating such violations. There is a pattern of ill-treatment of economically disadvantages groups in custody, and the suppression of protests. (d) Amnesty International believes that the authorities' failure to implement the provisions of [the Scheduled Castes and Schedules Tribes (Prevention of Atrocities) Act 1989] has led to a widespread feeling of impunity among those committing atrocities against tribals and dalits - [a dalit is a member of a disadvantaged group determined by caste hierarchies]. (e) Amnesty International notes that there is considerable public acceptance for the improper use of force by the policy as a means of teaching criminals a lesson. Several police and government officials have referred to the pressure on police to mete out instant punishment because of the inability of the criminal justice system to deliver justice promptly and effectively. It is clear also that police are susceptible to bribery and corruption - allowing themselves to be used for personal or political ends to act illegally against specific individuals in return for financial reward; and (f) Although freedom of assembly is a fundamental right guaranteed under Article 19 of the Constitution, protests are regularly suppressed by police using the law to ban protests or by use of excessive force. In addition, allegations are widespread that false cases are filed against activists in an attempt to prevent them from carrying out their activities." 33 It is further submitted that the references in the Amnesty Submissions to the particular vulnerability of disadvantaged groups, including dalits, was relevant because the applicant had claimed that his grandfather is a Schedule caste Hindu and that his family had converted to Christianity to hide their caste. 34 The applicant contends that Amnesty's picture of the risks faced by dissidents and protesters in India is in marked contrast to that found by the Tribunal. It was important information because it provided, the argument ran, credible and independent support for what the applicant claimed had happened to him. 35 It is the applicant's contention that the Tribunal was obliged, as a matter of law, to state which findings it accepted, and which findings it rejected, in respect of that country information, yet the Tribunal failed to do so. The applicant also contends that the Tribunal was required to articulate, but did not articulate, what approach it had taken to that country information in reaching its conclusions of fact.

THE RESPONDENT'S CONTENTIONS 36 The respondent contends that the Tribunal did refer to the general country information relevant to the applicant's claim, but did so as part of the general factual background surrounding the applicant's case. Counsel for the respondent also contended that the Tribunal was not required to make further and more specific findings based on the country information because it had correctly formulated "the central issue". 37 In essence the Tribunal's limited finding, so it was contended, was that the applicant had been charged and detained by the police on several occasions, but not for a Convention reason. It followed, the argument ran, that the Tribunal's finding was limited to a rejection of the applicant's claim that the charges were fabricated in response to his political activities, and that no further finding in relation to whether the charges were fabricated, or not, was made or required to be made. 38 The respondent further submitted that the Tribunal based this limited finding upon the evidence as a whole, and in particular, relied upon the country information in finding that India was in fact a robust democracy, where a wide range of political views are held and expressed by its citizens, and are permitted to be so held and expressed. It followed, the submission went, that the Tribunal considered it very unlikely the charges would be fabricated against a person who was engaged in the kind of political activities that the applicant claimed he had engaged in, that is, activities which were not violent or terrorist in nature. 39 The respondent further contends that the Tribunal was not in law subject to a general requirement to make detailed findings about all the country information presented to it, since this would make the Tribunal's task of fact finding practically impossible. The Tribunal was only required as a matter of law to make findings in respect of "material" questions that arose from the specific circumstances of the applicant's case.

CONCLUSIONS ON THE APPLICATION 40 With some hesitation I have ultimately come to the conclusion that the respondent's submission should be preferred. The applicant has not established, to my satisfaction, that the Tribunal failed to observe the requirements of s 430(1). 41 It is obvious enough that where, as here, the Tribunal has purported to provide a detailed analysis of the claims made, and of the evidence said to support those claims, that the applicant needs to show that there has been, in truth, a substantive claim by the Tribunal to address the real issues, if a breach of s 430(1)(c) is to be made out. In other words, mere matters of the weight of the evidence cannot justify the intervention of the Judiciary in the Executive decision-making process. The approach taken by the High Court in cases such as Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, illustrates this axiomatic principle. 42 It is equally obvious that the approach taken by courts in this area will necessarily depend upon the circumstances of the particular case; and that, in the end, for the purposes of inquiring whether the requirements of s 430(1)(c) have been satisfied, the Tribunal, and if necessary, the Court on judicial review proceedings, must make a judgment in assessing what is or is not truly "material" in dealing with any questions of fact. To that extent, for present purposes, consideration of what was decided by courts in other cases must be viewed in their own context. In this sense, those decisions, some of which were relied upon by the applicant's counsel, can often be of no more than limited assistance in other matters. 43 Whilst there is undoubtedly some force in the applicant's submissions, I have finally failed to be satisfied that the Tribunal breached s 430(1)(c). Ultimately as I see it, in the present case the substantive question of "materiality" becomes one of degree. That question may be stated in this form: To what extent, if at all, was the Tribunal obliged, by the dictates of s 430(1)(c) to expose, in an explicit fashion, its process of reasoning, if any, in the area of the claims made in Amnesty's 1997 Submission, specifically the matters stated in pars (a) to (f) above. 44 It is true that the Tribunal did not explicitly deal with the detail of these claims. But, with some hesitation, I'm not in the end persuaded that the Tribunal was bound to do so, at least where, as here, the Tribunal dealt with them implicitly in making its specific findings in respect of the individual applicant. In other words, given the generalised character of Amnesty's claims, which are themselves to be viewed in context, that is, in the context of the situation on a large sub-continent with a huge population, it does seem to me to place an unreasonable burden upon the Tribunal to expect it, as the applicant's argument suggests, to enter upon and express, a response to the details of each of the claims made by Amnesty in pars (a) to (f) above. The question does I think become one of degree, as I have said. 45 The approach adopted by the Tribunal was to focus particularly upon the position of the applicant, and specifically upon the credibility of his assertions. In principle, this was a correct approach, even if it meant that no attempt was made by the Tribunal to evaluate Amnesty's claims which, as I have noted, were generally expressed and attempted to describe a very large area of human activity. 46 In short, the Tribunal appears to have taken the approach that the position of the applicant was material, but that the details of Amnesty's general claims were not. I am not satisfied, for the purpose of testing compliance with s 430(1)(c), that this course was not open to the Tribunal. It was, I think, essentially a matter for the Tribunal's judgment. 47 It must follow that the application for judicial review fails. 48 The order I make therefore is that the application is dismissed with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Beaumont.

Solicitor for the Respondent: Australian Government Solicitor