Eshetu v Minister for Immigration and Multicultural Affairs

EXTEMPORE REASONS FOR JUDGMENT WILCOX J: This is an application for review of a decision of the Refugee Review Tribunal, upholding a decision by a delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse the applicant, Satinder Singh, a protection visa. Mr Singh is a national of India. He arrived in Australia on 22 June 1995. On 14 July 1995 he sought a protection visa. The delegate refused this application on 24 April 1996. Shortly thereafter the applicant applied for review of the decision by the Tribunal. The Tribunal member conducted an oral hearing which spanned two days, namely 20 November 1996 and 12 March 1997. Evidence was given to the Tribunal by the applicant and four witnesses. The applicant was represented by a migration agent who is apparently a qualified lawyer. On 19 May 1997 the Tribunal decided it was not satisfied the applicant is a refugee and it affirmed the decision not to grant a protection visa. Subsequently the applicant sought review in this Court pursuant to s 476 of the Migration Act 1958. In exercising the powers under that section, it is appropriate, according to the decision of the Full Court in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, to take account of the matters that arise under s 420 of the Act. They include the obligation to determine matters fairly and justly and in accordance with substantial justice. On behalf of the applicant, Mr Gerkens contends the Tribunal failed to comply with this standard. Mr Gray, counsel for the Minister, formally contends Eshetu was wrongly decided in respect of the relationship between s 420 and s 476. However, he correctly anticipated I would regard myself as bound by that decision. Mr Gerkens' submissions exhibited a high degree of thoroughness in considering the Tribunal's reasons; he has put everything that can be argued on behalf of the applicant. However, only one of the points he raises has troubled me and, in the end, I have determined it does not require this Court to interfere with the Tribunal's decision. I will deal with each of the points seriatim; although relatively briefly, in view of the discussion during the course of submissions. Mr Gerkens' first submission is that the Tribunal failed to deal with the matter in accordance with substantial justice, and/or fairly and justly, because no finding was made by the Tribunal as to whether or not a 1992 incident claimed by the applicant occurred. Allied to this argument is the proposition that it is not good enough for the Tribunal to assume that the applicant had a subjective fear; it is impossible for the Tribunal to determine whether the assumed subjective fear of the applicant is well-founded unless the Tribunal is able to say when the fear first arose. In this respect, Mr Gerkens referred to the words of Davies J in Eshetu at 632. The applicant claimed that, in 1992, he had been detained by police and tortured because of the political profiles of his father and brother. He said they were involved with the Akali Dal party, which was opposed to the then Punjabi government. The Tribunal accepted this claim. The Tribunal member said in her decision: "The Tribunal accepts as credible and consistent with evidence from objective sources regarding the maltreatment of Sikhs in the Punjab, particularly from 1984 to 1992, that the Applicant has at some time in the past been a victim of significant abuse by the Indian security forces. It is plausible that at the time of peak tensions he may have been rounded up and detained for a period, as he has claimed, with other young Sikh males suspected of involvement in the Pro-Khalistan movement." Later she said: "The applicant claimed that because of his brother and father he was subjected to detention and torture in Punjab on two occasions, in 1992 and 1994 respectively. The Tribunal finds that the incident claimed in 1992 is plausible given the situation at that time, which was characterised by protests and the boycott of elections. Amnesty International in its annual report for 1992 (Report 1993) referred to scores of disappearances in Punjab, as well as detention without charge and torture. The Tribunal therefore accepts that the Applicant and his father may have been detained and mistreated at that time. It is possible that he suffered post-traumatic stress disorder from this occasion, although the Tribunal notes that he continued attending school after that time." It seems to me these statements represent a clear acceptance by the Tribunal of the applicant's claim that he was detained and mistreated in 1992. It is true the Tribunal did not in terms find when a subjective fear of persecution arose. Indeed, the Tribunal did not in terms find subjective fear of persecution. The Tribunal assumed a subjective fear of persecution. Mr Gerkens criticises this approach, saying assumption is not good enough; it was necessary for the Tribunal to make an actual finding of subjective fear of persecution, and put a date to it. I do not agree. An element in an applicant's case must always be that the applicant has a subjective fear of persecution. As in Eshetu, it may sometimes be essential to look at earlier facts in order to reach a view about that matter. In other cases it may be sufficient to make an assumption in the applicant's favour about this element of the claim, leaving as the outstanding, perhaps the main, issue the question whether the subjective fear is well-founded, that is, has a reasonable objective basis. That was the situation in this case; it is not a legitimate criticism of the Tribunal's decision that the member failed to make a positive finding about the commencement of the applicant's subjective fear of persecution. Mr Gerkens next said the claim of the applicant was that he was persecuted only because of his father's and brother's activities, but these were not the subject of detailed findings. It is common ground that the applicant's claim was related only to his father's and brother's activities. But it is incorrect to say the father's and brother's activities were not the subject of detailed findings; the Tribunal member dealt with the activities of each family member. The father's situation is discussed at page 23 of the decision and the brother's at page 24. There is no substance in this point. The next point put by Mr Gerkens was that although the Tribunal member accepted that the applicant was suffering post-traumatic stress disorder, she did not make a finding relating that condition to any prior event; she left the cause of the disorder unstated. The Tribunal member carefully pointed out the respective functions of the medical experts, who had spoken of the applicant's psychological condition, and her own role. She accepted it was not for her, as a non-medical person, to reject expert medical advice, particularly where there was agreement between the experts. She also pointed out it was for her to determine the relationship between the applicant's present condition, as described by the medical experts, and past events. No doubt a medical expert can say a given condition is consistent with a particular experience having occurred, but it is not for a medical witness to find the facts about alleged incidents; that is for the tribunal of fact, in this case the Refugee Review Tribunal. I think, in her decision, the Tribunal member correctly sketched the boundary in functions and applied this in practice. If the member had ignored the fact that the applicant had been diagnosed as suffering post-traumatic stress disorder, this would have been an error. The existence of the condition raises a question as to its cause; it was a factor that needed to be taken into account in considering the applicant's claims. However, the Tribunal member did not ignore the matter. In a passage I have already quoted, the Tribunal member accepts the possibility that the post-traumatic stress disorder stemmed from the treatment which, she accepts, the applicant suffered in 1992. Of course, this is not to say there was no other factor; it might be very difficult for anybody to determine matter conclusively. The important point is that the Tribunal did accept, in the applicant's favour, that he was suffering from post-traumatic stress disorder and, at least, the possibility this stemmed from persecution on political and religious grounds he suffered in 1992. It is difficult to see how the applicant could wish for more favourable findings in relation to that issue. The next point argued by Mr Gerkens was that the Tribunal member misused the country reports. There was a deal of information before the Tribunal concerning the political situation in the Punjab, as it has evolved over the years. I need not refer to it in any detail. It is sufficient to say the picture is of a vastly improved situation in recent years, since there has been a change of government. The Akali Dal is now in government in the Punjab. Notwithstanding this, there was a suggestion in the evidence that, as recently as 1996, the applicant's father suffered harassment from the police. Evidence was given by the applicant's maternal grandfather, who is an Australian citizen, that he spent some time in India in 1996. He described his son-in-law, the applicant's father, as a prosperous businessman and referred to occasions, apparently more than one, when he was taken by the police and held in custody for a few days until he paid bribes in order to procure his release. Mr Gerkens pointed out the Tribunal member accepted the grandfather's evidence that the father was a prosperous businessman. The Tribunal made no findings regarding the father being taken into custody and having to pay bribes to secure his release, but Mr Gerkens' suggestion was that the grandfather was believed on one aspect of his evidence, so was presumably believed on other aspects; if so, this is evidence of persecution occurring as recently as 1996 and the country reports should have been discounted. I see two problems in this approach. One is that it is not correct to say that, because a tribunal of fact accepts one aspect of a witness's evidence, the tribunal must be taken to have accepted all aspects of that witness's evidence. It is not uncommon for testimony to consist of a mixture of true statements and falsehoods, either deliberate or inadvertent. Second, even if the assumption be made that the Tribunal was impressed with the grandfather's evidence and prepared to accept the whole of it, including the evidence about the father being taken into custody and released after he paid bribes, this does not establish the father was being mistreated in 1996 for political or religious reasons. The grandfather emphasised that the father was a prosperous businessman; apparently he was held only until he paid money to secure his release. There does not appear to be any material indicating that he was selected for detention and ransom because of his political activities - apparently past political activities at that stage - or for religious reasons. It is true the Tribunal did not make findings about this matter but this is understandable. On the scanty evidence, it would have been impossible for the Tribunal member to make findings, one way or the other, as to whether there was a relationship between the father's past political activities and the 1996 incidents. What the Tribunal member did was to look at a great deal of evidence regarding the Punjabi political situation. Based on that evidence, she found the only people at risk today are high profile extremists. There is no suggestion the applicant's father or brother came within this description. The final point put by Mr Gerkens is the one that troubled me a little. Towards the end of her reasons for decision, the Tribunal member referred to findings made by another Tribunal member in respect of an application for refugee status by the applicant's brother; that is, the brother already referred to as having been involved in political activities. She summarised the claims the brother had made and the Tribunal member's findings about them. As Mr Gerkens emphasised, some of those conclusions were unfavourable to his client's credibility. The member who decided the present case then said: "In assessing the Applicant's case, the Tribunal has made its own findings concerning the evidence relating to the activities of the Applicant's brother and father, which largely accord with those of the Tribunal constituted by Mr G. Brewer." Mr Gerkens said that, if the Tribunal member had made her own findings about the applicant's brother and father and then said she was comforted in those findings by noting they corresponded with those made by Mr Brewer, this would have been acceptable; but it was wrong for her to set out Mr Brewer's findings, even with the paragraph just stated. I think it would have been preferable for the Tribunal member not to refer to Mr Brewer's decision at all. She did so, apparently, because the applicant claimed his mistreatment was a direct consequence of the authorities' interest in his brother and father; that meant evidence given in the brother's case was relevant. I do not disagree with this; but it is one thing to say that evidence in the brother's case was relevant to the determination of the present applicant's claim; it is another thing to say the findings of the Tribunal in that case were relevant. If, at the end of the day, it seemed the Tribunal member had relied on Mr Brewer's findings then, in my opinion, this would have been a fatal defect in her decision. As Mr Gerkens points out, his client was not a party to the brother's case and had no opportunity of influencing findings made in it. The present Tribunal member made a statement, in the paragraph I have quoted, about having made her own findings concerning the applicant's brother and father. Mr Gray says this statement should be taken at face value and I see the force of that submission. However, if there was nothing more, there would be a reasonable suspicion that the Tribunal member had in fact relied on Mr Brewer's findings, and then inserted this paragraph in order to meet any complaint of having done so. In this case there was something more. As I have previously mentioned, the Tribunal member made her own assessment of the father's situation. This occupies a full page of her reasons, immediately following the quoted paragraph. She then dealt with the brother's situation; this occupies two-thirds of a page. In other words, she herself addressed the history of the father and the brother. It is fair to say the conclusions she set out, and for which she gave reasons, broadly coincide with those of Mr Brewer; but I do not think this is a case where a Tribunal member simply adopted another member's findings of fact. She did her own work and reached her own conclusions. As I say, it would have been preferable if the member had not even mentioned Mr Brewer's view. An analogy perhaps may be a situation where there is motor accident with two injured people. One brings an action, which has a particular result; the second person then sues. The evidence given at the first trial may be of considerable relevance at the second trial but, ordinarily, evidence of the result of the first trial would be inadmissible at the second trial. It is best for Tribunal members to make their own findings of fact, fairly and squarely, and stand on those findings, rather than place any reliance, even for comfort purposes, upon findings made by other Tribunal members. In this case I think the Tribunal member did make her own findings of fact. The circumstance that she referred to Mr Brewer's findings does not, in the end, cause me to think she denied the applicant substantial justice or dealt with the matter in an unfair way. The reality of this case is that the Tribunal member accepted that the applicant came from a family that had been involved in political controversy in the Punjab while he was a very young man, indeed a boy. He had been detained and tortured because of his father's activities, perhaps also his brother's activities. This treatment probably seriously affected him, psychologically. For that reason he wishes to stay in Australia; that is readily understandable. However, the Tribunal also found that information as to the current situation in the Punjab does not justify a view that there is a real chance the applicant will be persecuted on political or religious grounds if now returned to India. It seems to me this finding was open to the Tribunal and the decision, when analysed in the comprehensive way it has been analysed in submissions, is not vulnerable to the criticism that it exhibits legal error or a denial of substantial justice. I think the application must be dismissed. I propose to so order. [There was discussion about costs.] The order of the Court will be the that application be dismissed with costs. I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.