Hartej Singh v Minister for Immigration & Multicultural Affairs

The Tribunal finds that these laws are "laws of general application". The country information such as the US State Department report indicates that there are still human rights abuses against Sikhs and others in India, but does not indicate that such laws are applied in a discriminatory manner. The Tribunal therefore finds that if the Applicant were to be arrested and charged over the claimed incident involving the transportation of weapons, it would not be persecution, but rather prosecution pursuant to laws of general application, applied in a non discriminatory manner and to achieve a legitimate object of the country of refuge. The US report indicates that, subject to financial constraints, the Applicant would be able to obtain a fair public trial.

As the Tribunal has found that the Applicant does not face persecution within the terms of the Convention, if his claims are accepted, the Applicant can not be a refugee." 6 The Tribunal also rejected the applicant's claims of his arrest, detention and subsequent escape. The reasons for that rejection were that the applicant's account of his escape was so implausible that it cast doubt on the whole story, the likelihood that the police would have made extraordinary efforts to capture the escapees and the improbability that, after the events he described, the applicant would have been able to leave India under a passport in his own name. That finding of improbability was based on country information in a cable of 6 July 1992 from the Department of Foreign Affairs and Trade. Accordingly, the Tribunal concluded; "Logic dictates that in the situation described above warrants would issue for the escapees and based on the above country information, leaving India on his own passport is unlikely to have been possible. The Tribunal has not accepted the whole arms smuggling incident and the following arrest and escape and therefore does not accept that there was a warrant for his arrest at the time he left India. If there were no warrant for his arrest, the Applicant would have had no problem leaving India on his own passport."

Did the Tribunal comply with s 430(1) in relation to laws of general application? 7 It was contended on behalf of the applicant that the Tribunal had failed to discharge the obligation imposed on it by s 430 of the Migration Act 1958 ("the Act") to set out its reasons for each material finding of fact and to refer to the evidence on which each such finding was based. Section 430(1) provides; "Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." 8 The first finding of fact identified by Counsel for the applicant was that set out at par 5 above that "Laws under which the applicant claims to have been arrested or charged are criminal laws which are aimed at protecting the community." The criticism has been made that the "laws" to which the Tribunal referred were not identified and no reference was made to any precise "charges" which had been made against the applicant. 9 In a related way it was contended that the finding that the laws under which the applicant had been charged were of general application is not accompanied by any reference to the evidence which supported that finding. Similarly, Counsel for the applicants submitted that the finding that any future arrest and charging of the applicant in connection with the transport of weapons "would not be persecution but rather prosecution pursuant to laws of general application applied in a non-discriminatory manner and to achieve a legitimate object for the country of refuge", was based on a number of assumptions and not on any identifiable evidence. 10 The obligations imposed on the Tribunal by s 430(1) have been considered by a five-member Full Court of this Court in Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, where it was observed in the joint judgment of Black CJ, Sundberg, Katz and Hely JJ, at pars 46-48; "There is no specific requirement in s 430 for the RRT to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding it made. That is the view endorsed by the decisions referred to in par 12 above, and in our view it is consistent with the language of the section. The decision of the Full Court in Arudselvan v Minister for Immigration & Multicultural Affairs [1999] FCA 1726 provides another illustration of this approach. There the Court held that the RRT was not obliged to analyse material submitted by the applicant, and to give reasons for not accepting any of it that might be thought to be inconsistent with the conclusions it reached. The endorsed view is subject to the important qualification that if one of the reasons which actually induced the RRT to come to its decision was that it decided to reject or place no weight on particular material, then s 430(1)(b) would require disclosure of that element of the RRT's actual reasoning process: see Durairajasingham (supra). The qualification referred to in par 44 concerns s 430(1)(c), insofar as it requires the RRT to set out its findings on any material questions of fact. Ordinarily, materiality is an objective concept. If the RRT fails to make a finding on a fact which is in truth, as a Court subsequently determines, a material fact, then s 430(1)(c) will not have been complied with, even though the RRT has recorded its findings in relation to the facts before it that it regarded as material. The generally accepted view in this Court has been that the RRT is under a duty to make, and to set out, findings on all matters of fact that are objectively material to the decision it is required to make. It must make findings on questions of fact that are central to the case raised by the material and evidence before it. In this respect, s 430 sets a standard of decision-making the RRT is required to observe." 11 That passage suggests that, if the characterisation of the Indian law under which the applicant would presumably be charged in the event of his return to India were a material question of fact, the Tribunal would be obliged to set out its finding as to that matter and to refer to the evidence on which that finding was based. It is a trite proposition that a question of interpretation or application of foreign law is a question of fact to be proved by appropriately qualified expert witnesses. Except for the Tribunal's reference to the National Security Act, there seems to have been no attempt in the present case to identify by evidence or other material, the statutory instrument or other source of Indian law containing the provisions under which the applicant would presumptively be charged if he were to return to India. 12 However, in the same joint judgment in Singh it was observed at pars 54 to 55; "We do not accept that the material facts referred to in s 430(1)(c) are confined to the facts the statute requires to be decided. Obviously they include those facts, but whether a question of fact is otherwise material may be influenced or determined by the way the Tribunal has approached the case, as revealed by its reasons for decision. The reasoning process a Tribunal adopts may require a decision on a question of fact in order to complete the logical chain the Tribunal has adopted as the basis for its decision. Failure by a Tribunal to set out its findings in relation to that fact would involve a contravention of s 430(1)(c), as the process of reasoning adopted by the Tribunal has made that fact a material fact, since the decision is dependent upon it. Conversely an applicant may propose facts as material, but if the ultimate conclusion reached by the Tribunal is not dependent upon and does not require a finding on those facts, then they will not be material questions of fact, because the decision does not turn upon them." 13 In the present case, the ultimate conclusion reached by the Tribunal was not dependent on, and did not require, a finding as to the terms of the law under which those allegedly involved in the transport of firearms might be prosecuted. That was because, in the passage quoted at par 6 above, the Tribunal indicated that it had not accepted "the whole arms smuggling incident and the following arrest and escape and therefore does not accept that there was a warrant for his arrest at the time he left India." That the Tribunal's observations about laws of general application were not essential to its ultimate conclusion was made clear by the words which prefaced them in the passage quoted at par 5 of these reasons, "Assuming that the applicant's claims regarding the transportation of firearms are true .....". The Tribunal did not persist in that assumption because, as I have already indicated, it unequivocally rejected "the whole arms smuggling incident". 14 Even if the analysis of the Tribunal's reasons which I favour, be wrong, I consider that, by referring to the National Security Act and identifying it as a law of general application, the Tribunal sufficiently set out its findings of fact in relation to that aspect of its decision and referred to the evidence or other material on which those findings were based. In this context, it is to be borne in mind that there is a presumption that the relevant foreign law is to the same effect as the corresponding domestic (in this case, Australian) law; see eg. Cross on Evidence, 4th Aust. Edn (1991) par 41,005.

Rejection of the applicant's claims to have been arrested and detained after alleged weapons smuggling. 15 It will be recalled that the Tribunal based its rejection of this part of the applicant's case on the implausibility of the account of his escape, on the likelihood that an intensive police search would have followed such an escape and on the improbability that one of the escapees could have left India on a passport in his own name. That reasoning was criticised as defective because no finding was made on whether the applicant had been interrogated under torture as he claimed. It was put that even a single instance of torture would have sufficed to require a finding that the applicant had a well-founded fear of persecution. That made it impermissible for the Tribunal, so it was argued, to reject the claim of torture in a "portmanteau" way by saying that the implausibility of the applicant's account of his escape infected the rest of his story. To fail to give attention to each element of an applicant's claim was, Counsel contended, to fail to consider the application for a visa in the sense contemplated by s 65 of the Act. It also resulted in a failure to find "whether the experience left the applicant with an imputed political profile which itself increased the risk of persecution" to the level of a real chance. 16 As I have already noted, the Tribunal unequivocally rejected the applicant's claims as to "the whole arms smuggling incident." It was obliged to set out that rejection, as it did, but was not required to indicate the reasons for that rejection. In Re Minister for Immigration and Multicultural Affairs Ex parte Durairajasingham (2000) 74 ALJR 405, McHugh J said, at 416-417; ""In Addo v Minister for Immigration and Multicultural Affairs [1999] FCA 940 at 24 and 31,the Court said: "Section 430(1) does not impose an obligation to do anything more than to refer to the evidence on which the findings of fact are based. Section 430 does not require a decision-maker to give reasons for rejecting evidence inconsistent with the findings made. Accordingly, there was no failure to comply with s 430(1) of the Act. … It is not necessary, in order to comply with s 430(1), for the Tribunal to give reasons for rejecting, or attaching no weight to, evidence or other material which would tend to undermine any finding which it made." In my opinion, this passage correctly sets out the effect of s 430(1)(c) and (d). However, the obligation to set out "the reasons for the decision" (s 430(1)(b)) will often require the Tribunal to state whether it has rejected or failed to accept evidence going to a material issue in the proceedings. Whenever rejection of evidence is one of the reasons for the decision, the Tribunal must set that out as one of its reasons. But that said, it is not necessary for the Tribunal to give a line-by-line refutation of the evidence for the claimant either generally or in those respects where there is evidence that is contrary to findings of material fact made by the Tribunal. Indeed, to do so would be contrary to the direction in s 420 of the Act that: "(1) The Tribunal, in carrying out its functions under this Act, is to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. (2) The Tribunal, in reviewing a decision: (a) is not bound by technicalities, legal forms or rules of evidence; and (b) must act according to substantial justice and the merits of the case." In this case, the Tribunal made an express finding that it did not accept the prosecutor's wife's evidence. That was sufficient to comply with the requirements of s 430(1)." 17 In the following paragraphs, his Honour indicated that a finding that an applicant or a particular witness should not be believed does not require to be supported by detailed reasons for that disbelief. As his Honour said, "The Tribunal must give the reasons for its decision, not the sub-set of reasons why it accepted or rejected individual pieces of evidence". Moreover, in the present case, the Tribunal did advance the inherent implausibility of the applicant's claim as the reason for rejecting it. That assimilates the present decision to that in Durairajasingham, as to which McHugh J said, at par 67; "In any event, the reason for the disbelief is apparent in this case from the use of the word "implausible". The disbelief arose from the Tribunal's view that it was inherently unlikely that the events had occurred as alleged." 18 The rejection as implausible of the whole of the applicant's claim, carried with it a rejection of his claim to have been interrogated under torture. Similarly, the same total rejection of the claimed experience entailed that the applicant could not have been left by that experience with an imputed political profile as a Punjabi separatist - terrorist.

Application of "What if I am wrong?" test. 19 Counsel for the applicant contended that the Tribunal should have applied this test in assessing whether the applicant faced a real chance of persecution because its adverse findings had not been made with the degree of confidence required by Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559, as applied by a Full Court of this Court in Minister for Immigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. Particular reference was made to the finding set out at par 6 above that "Leaving India on his own passport is unlikely to have been possible." 20 In Guo it was observed in the joint judgment of Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ at 575; "It is true that, in determining whether there is a real chance that an event will occur or will occur for a particular reason, the degree of probability that similar events have or have not occurred or have or have not occurred for particular reasons in the past is relevant in determining the chance that the event or the reason will occur in the future. If, for example, a Tribunal finds that it is only slightly more probable than not that an applicant has not been punished for a Convention reason, it must take into account the chance that the applicant was so punished when determining whether there is a well-founded fear of future persecution. In the present case, however, the Tribunal appears to have had no real doubt that its findings both as to the past and the future were correct. That is, the Tribunal appears to have taken the view that the probability of error in its findings was insignificant. Once the Tribunal reached that conclusion, a finding that nevertheless Mr Guo had a well-founded fear of persecution for a Convention reason would have been irrational. Given its apparent confidence in its conclusions, the Tribunal was not then bound to consider whether its findings might be wrong." 21 In applying that passage, Sackville J, as a member of the Full Court in Rajalingham, said, at 238; "It can be seen from this passage that if the RRT finds that it is only slightly more probable than not that an alleged relevant event has not occurred, it must take into account the chance that it did occur when determining whether there was a well-founded fear of persecution. It is clear that the comment in the joint judgment is not confined to a past event (as in Wu Shan Liang) involving persons other than the applicant. Their Honours give as an example a finding that it was slightly more probable than not that the applicant had not been punished for a Convention reason. If, on the other hand, it appears that the RRT had no "real doubt" that its findings were correct, it is not bound to consider whether those findings might be wrong." (original emphasis) 22 In the present case, the fact that the applicant left India on a passport in his own name, was not a past matter as to which the Tribunal had to determine the degree of probability that it occurred. It was not disputed that the applicant had left India on such a passport. What the Tribunal did was to fix on that undisputed fact as making it "unlikely to have been possible" the fact that the applicant was being hunted as a suspected terrorist who had escaped from custody in circumstances which included the death of a police officer. On a fair reading of its reasons, it appears to me that the Tribunal had no real doubt of the non-existence of that fact.

Did the Tribunal err in law by failing to resolve the applicant's claim that "police are the government" in India? 23 On behalf of the applicant it was acknowledged that the Tribunal had been entitled to refer to general country information about the judicial system in India. However, it was contended that the Tribunal was also obliged to make an explicit finding on the claim of police oppression. As Counsel put it at the hearing of the application, "The Tribunal did make findings about whether there could be a fair public trial but ..... it has not made findings about proceedings that might lead up to that trial and again it is perhaps another way of putting that same point that the Tribunal has failed to deal with the claim of mistreatment while the applicant was in detention." It will be apparent from that concession that, as I have already indicated, any findings made by the Tribunal about the legal processes applicable to the applicant were predicated on the assumption that his account of his arrest, detention, torture and escape was true. However, the Tribunal did not fail to deal with that claim; it explicitly rejected it.

Other alleged errors of law. 24 Counsel for the applicant submitted that separate errors of law had been committed by the Tribunal in failing to determine the substantive issues raised by the claim to have been interrogated under torture which is discussed at pars 15 and 16 above, and in failing to ask "What if I am wrong?". However, for reasons already indicated, I consider that the Tribunal approached each of those matters in a way which was open to it. It therefore follows that there was no error of law of either of the kinds imputed to the Tribunal on behalf of the applicant. 25 Finally under this head, it was argued that the Tribunal had committed a further error of law by failing to consider the applicant's claims cumulatively and as a whole. That error was said to have been manifested particularly by the Tribunal's failing to consider and resolve the applicant's claim to have been tortured and its failure to refer to evidence in support of its conclusion that the applicant's account of his escape was implausible. 26 That the Tribunal did consider the applicant's claim as a whole is reflected by the criticism of Counsel for the applicant noted at par 15 above, that it had rejected the claim of torture in a "portmanteau" way. However, the allegation of torture was made in just that way, to the effect that the torture had been part of a single sequence of events or experience, which made it likely that the applicant would be subjected to persecution if he returned to India. In the joint judgment in Singh (supra), it was observed, at par 53; "The view has been consistently taken in the past that where, for example, the well-founded fear of persecution is said to derive from past experiences, s 430(1)(c) obliges the RRT to set out its findings in relation to those claims because of their relevance to the ultimate question." 27 This was not a case where the applicant relied on several discrete incidents or "experiences", none of which considered individually might have given rise to a real chance of persecution, but two or more of which, if regarded cumulatively, might have had that effect. In this case, as already explained, there was a single material fact which the Tribunal declined to find. Accordingly, no occasion rose for considering the applicant's claim, otherwise than in the way in which it had been presented.

Actual bias. 28 It was urged that the Tribunal had been actually biased against the applicant in the sense discussed by Burchett J in Sun Zhan Qui v Minister for Immigration and Multicultural Affairs (1997) 81 FCR 71 at 126-127, where his Honour said; "Actual bias, like any other conclusion of fact, may be established as an inference from circumstances. On this basis, the appellant relies on various aspects of the Tribunal's decision as explicable only, or at least most naturally, by bias. When the Court examines the material bearing on this issue, I think it should interpret the words of s 476(1)(f) in their natural sense. The use of the word "actual" strongly suggests that the legislature was endeavouring to get away from the somewhat special concept of bias which is immanent in the case law. The cases use expressions such as "real likelihood of bias" in a sense designed to ensure "that it is not necessary that actual bias should be proved": Reg v Barnsley Licensing Justices, Ex parte Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167 at 187, per Devlin LJ. In Australia, "real likelihood" has itself been abandoned in favour of an even more special test, based on the principle that justice should be undoubtedly seen to be done, of "whether fair-minded people might reasonably apprehend or suspect that the judge has prejudged or might prejudge the case": Webb v The Queen (1994) 181 CLR 41 at 47; Gaisford v Hunt (1996) 71 FCR 187. The doctrine that has been developed, however it is stated, is commonly called the rule of apprehended bias. In my opinion, the statute, when it used Devlin LJ's expression "actual bias", substituted a test that looks to whether the Tribunal has, at least in some respect, prejudged the case, so as to be unable or unwilling to decide it impartially. I say "at least in some respect" because the statute extends to the situation where "the decision was ... affected ... by actual bias". The observation that it is sufficient that a decision be affected by bias adds weight to the conclusion of Finkelstein J in Bilgin, with which I agree, that actual bias need not be confined to an intentional state of mind. Bias may be subconscious, provided it is real. Nevertheless, a finding of bias is a grave matter, different in kind from a finding of mere error, or even wrong-headedness, whether in law, logic, or approach. It would be a sad reflection on administrative tribunals, and certainly on courts which exist in the name of justice, if it were to be seen as other than exceptional." See also the discussion of actual bias by North J in the same case at 135-136. 29 Counsel for the applicant in the present case argued that the manner in which the Tribunal dealt with the issues already discussed revealed that the Tribunal, unconsciously and without malice, did not have a mind open to be persuaded of the truth of the applicant's claims. I do not agree. The fact that a tribunal may express itself forcefully or tersely in rejecting claims advanced before it does not, of itself, give rise to an inference that it has approached those claims with a closed or prejudiced mind. The preferable inference in the present case is that, after reviewing all the evidence, including the testimony of the applicant himself, the Tribunal reached a firm conclusion that each of the applicant's claims should be rejected.

No evidence. 30 It was pointed out on behalf of the applicant that s 36(2) of the Act, in conjunction with s 65, requires the Tribunal to affirm a refusal of a protection visa only if it is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention. That was said to be a "particular matter" within the meaning of s 476(4)(a), 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;" 31 Accordingly, so the argument went, the Tribunal's failure to refer to evidence for various "crucial" findings of fact, gave rise to the inference that there was no evidence from which the Tribunal could have been reasonably satisfied that the "particular matter" had been established. I do not regard the failure to attain satisfaction of the existence of criteria for the grant of a specific type of visa as a "particular matter" within the meaning of s 476(4)(a). As I said in Pei Lan He v Minister for Immigration & Multicultural Affairs [2001] FCA 446 (unreported, 23 April 2001) at par 37; "...... the Tribunal was not required by the Act to reach a decision refusing the application only if a particular matter was affirmatively established which, I consider, s 476(4) requires. The Tribunal was entitled to make a decision refusing the application upon being satisfied that the applicant did not have a well-founded fear of persecution for a Convention reason. The attainment of that state of satisfaction did not require the affirmative establishment of a particular matter." 32 For these reasons I am unable to uphold this attack on the Tribunal's decision.

Conclusion 33 As each of the applicant's attacks on the Tribunal's decision has failed, the application must be refused. The applicant should pay the respondent's costs of the application. I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Solicitor for the Respondent: Australian Government Solicitor