Singh, Armajit v Minister for Immigration & Multicultural Affairs [1998] FCA 956

EX TEMPORE REASONS FOR JUDGMENT In this matter the applicant seeks a review of a decision of the Refugee Review Tribunal which rejected his claim to a protection visa. Such a review, of course, is confined to questions of law. The applicant is a Sikh coming from the Punjab, and his case presented to the Refugee Review Tribunal was that his father held a senior position in their village and had been implicated in the anti-government movement which, as is well known, has for a number of years now sought the creation of a separate Sikh state within the Punjab. The applicant alleged that, as a consequence of this involvement, he had himself been pressed by the insurgents to take part in the insurgency, and had been suspected, at the same time, by the authorities of being so involved. In fact, he claims to have rejected the attempts to involve him in anti-government activities, and to have suffered from both sides. The difficulty in his case is that it simply was not believed. The Tribunal analysed the evidence at some length, concluding that, in numerous respects, the application itself, oral information given to the Department of Immigration, and finally the evidence before the Tribunal, displayed internal inconsistencies and contradictions between what was alleged at one stage and what was alleged at another. Having regard to these matters, the Tribunal concluded that it was unable to accept his material claims as genuine, and thus was not satisfied that he had a well founded fear of being persecuted within the meaning of the Convention. Counsel for the applicant, who has said all that could possibly be said in favour of this application, has relied particularly on the fact that the original application, for a protection visa, was submitted after the obtaining of advice from a migration agent who has since had his registration withdrawn for lack of appropriate qualifications, and lack of integrity. The applicant did say that he wrote the application himself, but he also said that its contents were dictated to him by this agent. Certainly, it would be reasonable to have regard to any evidence suggesting that defects in the application resulted from the intervention of the agent, and not from misinformation given by the applicant. But it is quite impossible to hold that a legal defect invalidates the conclusions of the Tribunal in this particular case. They were not based simply on statements in the application which turned out to be false, but on a large number of inconsistencies, involving other occasions in the main, and not merely the occasion when this application was filled out. The determination of who is to be believed is obviously part of the ascertainment of the facts, which the legislation commits to the Tribunal. As Merkel J said in Emiantor v Minister for Immigration and Multicultural Affairs (1997) 48 ALD 635 at 649: "In the final analysis it was a matter for the RRT as to whether it reached a state of 'satisfaction' as to the factual matters which were material to determining whether the applicants were refugees." Later on the same page, his Honour said: "The approach of the RRT to the credibility issues was open to it on the material, was based on rational grounds and was arrived at after consideration of matters that were logically probative of the issue of credibility. In these circumstances I do not accept the contentions of the applicants that the RRT erred in law in relation to these findings or that the findings were open to challenge on any other reviewable ground. That conclusion is important to the outcome of the review as it must follow that the findings of the RRT as to the past events relied upon to support the claims for refugee status must be accepted as the starting point for the application of the 'real chance' test." I think those passages are applicable to the circumstances of the present case, and that no error of law has been disclosed. I should add that, even if some error appeared in the basis on which the Tribunal declined to accept the applicant's account of the circumstances he said gave rise to a well-founded fear on his part, there would have remained a further question on which his case might still have encountered grave difficulty - whether, upon a proper application of the internal refuge principle, he could be said to be a person falling within the Convention. For these reasons, the application must be dismissed, and I do dismiss it. An application has been made on behalf of the Minister that the applicant pay the costs. It seems to me that the discretion of the court in respect of costs in administrative law matters raises problems going beyond those in ordinary private litigation. Governmental authorities always have a particular interest in the due making of administrative decisions. Indeed, the administration of the Commonwealth, if our democratic institutions are to remain healthy and acceptable, must be capable of having its errors corrected and of being kept within the bounds of the law. For this reason, one must look carefully at an application that costs should be borne by an individual who exercises a right given to him by the law to have an administrative decision reviewed by the court. In the present case, as has been pointed out in the submissions put by counsel for the applicant, statements made in a document prepared, at least partly, by an accredited migration agent, who was subsequently formally found by the Administrative Appeals Tribunal to lack the appropriate qualifications and also to lack integrity, have played some part. Although I have held that the application fails, I think it was reasonable to have had the matter reviewed, and in all the circumstances I exercise my discretion against making any order as to costs. I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Burchett