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[2000] FCA 83
Federal Court of Australia
2000-02-10
Madgwick J, Mansfield J
Original judgment source is linked above.
Introduction 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") of 16 July 1999 ("the second Tribunal decision") affirming a decision of a delegate of the respondent made on 1 May 1997 not to grant to the applicant a protection visa. 2 It is a criterion for the grant of a protection visa under s 36 of the Migration Act 1958 (Cth) ("the Act") that she satisfies the respondent, and on review the Tribunal, that she is a person to whom Australia owes protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 ("the Convention"). 3 If the applicant is to be entitled to the visa sought he must qualify as a refugee under Article 1A(2) of the Convention. She must be a person who:
"… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable, or, owing to such fear, is unwilling to avail himself of the protection of that country …" Background and Claims 4 The applicant is an Indian citizen. She was born on 10 November 1976 and is twenty-three years of age. She was born and brought up in Punjab. She has four sisters and a brother. She arrived in Australia on 27 August 1996 to visit her sister and on 12 November 1996 she lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs. 5 The Tribunal first made a decision concerning the applicant on 1 April 1999 ("the first Tribunal decision"). It affirmed the respondent's decision not to grant to the applicant a protection visa. It did so, without the applicant having attended the hearing or given oral evidence although she had expressed the desire to do so. The Tribunal, as constituted, was not made aware of that desire. The error was realised after the decision was made. 6 The Tribunal therefore sought to rectify that error by hearing the applicant's case for a second time. The Tribunal which heard and decided the applicant's case on this second occasion was constituted by the same member who made the first Tribunal decision. 7 It is that circumstance which gives rise to the only ground of review argued on this application. In these circumstances, it is necessary to refer to the applicant's claims only briefly. 8 Both the applicant and the respondent were content to treat the second Tribunal decision as the valid and operative one. In effect, they accepted that the Tribunal was empowered to withdraw the first Tribunal decision notwithstanding its apparent force. That approach appears to be consistent with the decision of Madgwick J in Minister for Immigration and Multicultural Affairs v Bhardwaj [1999] FCA 1806. That decision determined that the Immigration Review Tribunal could further hear, and redetermine, a decision to cancel a student visa under the Act. That Tribunal had first affirmed the decision of a delegate of the respondent to cancel the student visa. In circumstances like the present, namely the decision had been made without the Tribunal as constituted being aware that the visa holder wished to attend the hearing, the Tribunal reopened its consideration, heard further evidence, and made a fresh decision. In that instance, the later decision revoked the cancellation of the student visa. The Minister sought review of the later decision, arguing (unsuccessfully) that the Tribunal in that case was functus officio after the first decision and could not reopen its review and make a later (and different) decision. No relevant point of difference between the position of the Immigration Review Tribunal and the Tribunal emerges from consideration of the statutory framework in which they respectively function. I accordingly follow the decision of Madgwick J, and acquiesce in the approach the parties urged in relation to the first Tribunal decision. 9 The claims made by the applicant were generally consistent throughout, but were more explicit and detailed as a result of the applicant's evidence and other material submitted to the Tribunal after the first Tribunal decision. 10 The applicant claimed that she fears persecution should she return to India by reason of her association with the Sikh Student Federation ("SSF"), which worked towards an independent Sikh state of Khalistan. At the age of fifteen, she joined the Girls wing of the SSF in 1990. She claimed that the only work she did for this organisation was to deliver messages. She said that she did not attend meetings or rallies. None of her immediate family were involved in the activities of the SSF. Her father, however, was a member of the Akali Dal and her uncle was a member of the SSF. Between the years of 1990 and 1993 the applicant's immediate family lived with her uncle's family. During that time, the applicant claimed that her family home was frequently raided by the police. She said her uncle was arrested many times and detained in custody, and from 1990 her parents were also frequently taken for interrogation for some hours and sometimes overnight. The police interrogated her parents because of her uncle's association with the SSF. 11 In April 1993, when aged sixteen, the applicant was first detained. She was held for two days and released. She continued to deliver messages for the SSF. She was again detained shortly after her first release, and held for a week. She then left home, and went into hiding. She has not been harassed by police since then. She took the opportunity to come to Australia in 1996, in response to an invitation from her sister who lives in Australia. She told the Tribunal that during her detentions she was questioned, insulted, mistreated and beaten by the police. She also told the Tribunal at one point that she had been "dishonoured", ie. raped, whilst in custody. She claimed that the main reason she was pursued by the authorities was because she was working with her uncle. She said that if forced to return to India she would return to the village where her parents live. She said that the police will know that she is back. The same police officer who dishonoured her is still in charge of the local area, and she fears she will be similarly mistreated again. 12 The applicant came to Australia on 27 August 1996. She claims that ten days after her arrival she joined the International Sikh Youth Federation ("ISYF"). She said that she is currently an assistant to the ISYF president. She fears that some Indian government agents in Australia have her details. 13 In some respects, her claims were confirmed by other witnesses. The Tribunal's second decision: findings and reasons 14 The Tribunal had difficulty accepting many of the applicant's claims. It concluded:
"The Tribunal does not accept that the applicant was arrested and detained in the manner described or that she was in hiding prior to her departure from India. Further as the Tribunal does not accept that the applicant was detained it does not accept that she was raped whilst she was in detention. There were some significant difficulties with the Applicant's evidence and the Tribunal did not find her to be a satisfactory or reliable witness." 15 It also concluded that the applicant was never a messenger for the SSF, although it accepted that the applicant may have been a member and a low level supporter of the SSF. It also accepted that the applicant has worked in an administrative capacity for the ISYF in Australia. 16 The Tribunal gave detailed reasons for those conclusions. It took particular notice of the fact that in her initial application the applicant did not state she had been detained, beaten, raped and went into hiding. As this information was critical to her application, the Tribunal found that she would not have omitted it had it occurred. It also did not accept that the applicant did not go to school during the period she claims to have been in hiding, despite having paid school fees. It also had regard to the fact that the applicant's initial application made no assertion that the applicant delivered messages for the SSF. The Tribunal also rejected the applicant's evidence that she was tortured by the police. It noted that the applicant had given three conflicting versions as to when she was tortured, and when she was in hiding. The Tribunal also had regard to the applicant having given inconsistent evidence concerning her family members. First, she said that her parents were detained a couple of times but later she said that her father was frequently arrested and held overnight. Her uncle, during his oral evidence, said that the applicant's grandfather was detained and tortured in 1991-1992 yet the applicant never mentioned this. 17 The Tribunal also found that the applicant had no difficulty leaving India. It did not accept that she had to pay a bribe. It found that she obtained a visa through the normal channels. It also observed that, since the applicant obtained her visa in 1991, she would have left at an earlier time if she had been in danger and in hiding. 18 The Tribunal also referred to information concerning the state of affairs in India, and in particular Punjab. It accepted that some classes of people are still at risk in the Punjab but found that the applicant did not fall into any of those categories. It took into account the applicant's current involvement with the ISYF when making this finding. 19 Consequently, the Tribunal affirmed the decision not to grant to the applicant a protection visa.
The ground of review 20 The applicant relied only upon s 476(1)(f) of the Act in seeking review of the second Tribunal decision. She sought to establish that the decision was induced or affected by actual bias. 21 The applicant submitted that, because the Tribunal was identically constituted in making the first Tribunal decision and in making the second Tribunal decision, and having regard to the terms of the Tribunal's decisions, the Tribunal had prejudged or predetermined the case against the applicant when making the second Tribunal decision. The prejudgment, in circumstances where it has the effect that the Tribunal's mind was made up adversely to the applicant when making the second Tribunal decision, was the overall conclusion and outcome of the first Tribunal decision. There was no particular findings of fact, or series of findings of fact, which were said to have been made in the first Tribunal decision and which arose for reconsideration in the second Tribunal decision. Consideration of contention 22 Counsel referred to many authorities as to what may constitute actual bias. However, there was no real disagreement between them. It is sufficient, therefore, to refer to the observations of Burchett J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71 at 127. His Honour said:
"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." 23 In the same case, North J said at 134:
"Actual bias exists where the decision-maker has prejudged the case against the applicant, or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant." 24 Wilcox J in that case, at 123, made the point that there will be actual bias only when preliminary views are incapable of alteration. If there is any nuance of difference between those views, it is not of moment to resolution of the present application. 25 In the reasons for the first Tribunal decision, the Tribunal noted that the only evidence then before the Tribunal was the files of the respondent and of the Tribunal relating to the application. It recorded the claims made in that material. In the reasons for the second Tribunal decision, it recorded in the same way those claims made in that material before recording the more detailed claims then expressed by the applicant. It does not involve any prejudgment by the Tribunal to have recorded the contents of those documents consistently; indeed, it would be surprising if they were not recorded consistently. 26 The gravamen of the applicant's contention is based upon a passage from the concluding remarks in the reasons of the first Tribunal decision. They are in the following terms:
"The Tribunal is not satisfied, on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention. CONCLUSION Having considered the evidence as a whole, the Tribunal is not satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol." 27 It was submitted that the Tribunal had therefore decided upon the veracity or otherwise of the claims made by the applicant. Having done so, the Tribunal's mind was made up so as to predetermine the outcome of the second Tribunal decision: cp. Baljit Singh v Minister for Immigration and Multicultural Affairs [1999] FCA 1542. 28 However, I do not think that the Tribunal did make its mind up adversely to the applicant in the way that is alleged. In the reasons for the first Tribunal decision, it said in relation to the material then before it:
"unable to make a favourable decision on that information … The Tribunal is unable to determine what the applicant and her family's involvement in politics was … [w]hether they were involved in any particular organization and what their political profile was in India. There have been no details supplied as to what harassment the applicant and her family suffered. The Tribunal is unable on the available evidence to determine whether the harassment was sufficiently serious to amount to persecution and whether it was directed toward her for a convention ground. Nor whether there is a real chance that the harassment will continue in the future. The applicant claims that her education suffered as a result of the harassment yet her application form indicates that she completed 12 at school. The applicant's claims are so general and lacking in detail that the Tribunal is unable to establish the relevant facts. The applicant has been put on notice by the Tribunal that it is unable to make a favourable decision on the information before it but has not provided any further information in support of her claims despite ample opportunity to do so. Nor has she given the Tribunal the opportunity to explore aspects of her claims with her. A number of relevant questions are therefore left unanswered. The Tribunal is not satisfied on the evidence before it, that the applicant has a well-founded fear of persecution within the meaning of the Convention." 29 As can be seen from that passage, the first Tribunal decision did not involve the positive rejection of the applicant's claims or any of them. It did not involve the making of any particular finding of fact, or series of findings of facts, on any of the applicant's claims. The Tribunal simply expressed itself as being unable to be satisfied that the applicant was a refugee under the Convention without greater detailed information. 30 That is hardly surprising. The application for review made to the Tribunal was in only very general terms. It said that the applicant had "been harassed at the hands of the security forces" and that she left India "to avoid further harassment or physical and mental torture". She said she wanted to explain her claims at an interview. The application for the visa was somewhat more fulsome, in terms referred to above. 31 It is noteworthy that the Tribunal may make a decision in favour of a visa applicant on the papers: s 425(2)(a). It is only if the Tribunal has decided not to grant a visa on the papers that it must give a visa applicant the opportunity to be heard under s 425. That stage had been reached when the Tribunal wrote to the applicant inviting her to exercise that right. It is hardly surprising, though not necessarily inevitable, that the Tribunal, when considering the same material and without further information, should not be satisfied that the applicant is a refugee under the Convention. It also could not be said that, because the Tribunal had not decided the application on the papers, it had prejudged the claims of the applicant. 32 In the reasons for the first Tribunal decision, the Tribunal did not make any adverse findings of fact against the applicant. It took the view that the assertions in the material then before it were not sufficient to satisfy it that the applicant had a well founded fear of persecution for a Convention reason if she were to be returned to India. It did not regard the generality of the material as sufficient to pass over the 'satisfaction' threshold provided by s 36(2) of the Act. It did not reject any of the claims made in the material it considered, but did not think that they were sufficient as expressed. 33 The reasons for the first Tribunal decision, properly understood, do not disclose that the Tribunal constituted of the same person had formed adverse views about the reliability of the applicant's claims which were incapable of alteration when making the second Tribunal decision. There was no prejudgment of the more detailed claims explained by the applicant in her evidence, and in other evidentiary materials, in relation to the second Tribunal decision. It was in the light of all that further material that the Tribunal affirmed the decision not to grant to the applicant a protection visa. 34 The Tribunal's reasons for the second Tribunal decision are summarised above. They demonstrate that its reasons were not the same as those which led to the first Tribunal decision. The decision to reject the applicant as a satisfactory or reliable witness was not a reason for the second Tribunal decision. It was made in the light of the applicant's evidence, in part compared to the claims as expressed in the initial application for a protection visa and in the application for review to the Tribunal. That assessment of the applicant's reliability was also made in part in the light of her evidence on certain topics when compared to external information about India. It was made by reference to the applicant's evidence compared to other evidence, and by reference to inconsistencies in her evidence. Those reasons are quite different from the reasons for the first Tribunal decision. They are based upon more extensive and different material. They are reasons which arose from the hearing leading to the second Tribunal decision. They do not reflect the reasons for the first Tribunal decision. 35 Accordingly, I do not consider that the applicant has shown that the Tribunal was biased in the manner asserted in making the second Tribunal decision. It is not shown to have come to that decision with a mind closed to the applicant's claim, or to have prejudged the claim by making the first Tribunal decision so that it would not alter that conclusion irrespective of the evidence or arguments. It has considered that evidence and those arguments before reaching its second decision. 36 The application is therefore dismissed. I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.
Associate: Dated: 10 February 2000 Counsel for the Applicant: Mr M Clisby
Solicitors for the Respondent: Australian Government Solicitor
Sandhu
Minister for Immigration & Multicultural Affairs