Satwinder Singh v Minister for Immigration & Ethnic Affairs [1997] FCA 130 (5 March 1997)

CATCHWORDS

IMMIGRATION - application for a protection visa - application for refugee status - whether Refugee Review Tribunal's decision induced or affected by actual bias - Migration Act 1958 (Cth) s476(1)(f).

Migration Act 1958 (Cth) ss 475(1)(b), s476(1)(f)

Sarbjit Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, 18 October 1996)

SATWINDER SINGH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS

No. NG 961 of 1995

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 5 MARCH 1997

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 961 of 1995

GENERAL DIVISION )

BETWEEN: SATWINDER SINGH

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 5 MARCH 1997

MINUTES OF ORDER

THE COURT ORDERS THAT:

The decision of the Refugee Review Tribunal be affirmed.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 961 OF 1995

GENERAL DIVISION )

BETWEEN: SATWINDER SINGH

Applicant

AND: MINISTER FOR IMMIGRATION

AND ETHNIC AFFAIRS

Respondent

CORAM: BRANSON J

PLACE: SYDNEY

DATE: 5 MARCH 1997

REASONS FOR JUDGMENT

By an application dated 20 December 1995 made pursuant to s476 of the Migration Act 1958 (Cth) ("the Act") Satwinder Singh seeks review by the Court of a decision of the Refugee Review Tribunal affirming a decision of a delegate of the Minister for Immigration and Ethnic Affairs ("the delegate"). The delegate had refused Mr Satwinder Singh's application for a protection visa. The decision of the Refugee Review Tribunal is a "judicially reviewable decision" within the meaning of s475 of the Act (s475(1)(b)).

The grounds of the application are expressed as follows:

"(1) Procedures required by the Act to be observed in connection with the making of the decision were not observed in that the [tribunal member] failed to accord the applicant a fair hearing.

(2) The [tribunal member] failed to act according to substantial justice and the merits of the applicant's case.

(3) The [tribunal member's] decision was affected by bias."

The third of the above grounds, provided that it is understood as alleging actual bias, is a ground of review provided for by s476 of the Act (s476(1)(f)). In my view it is doubtful that the other two grounds put forward by Mr Satwinder Singh's application can be brought within the grounds of review provided for by s476 if they are to be regarded as grounds distinct from the ground of actual bias. I return to this issue below.

BACKGROUND FACTS

Mr Satwinder Singh was born in 1970 in the Hoshiarpu district of the Punjab, India. He is an Indian citizen of the Sikh religion.

He claims to have been an active member of the All India Sikh Student Federation ("AISSF") against whom a warrant of arrest has been issued in India. The Refugee Review Tribunal did not accept the authenticity of the alleged warrant of arrest.

The Refugee Review Tribunal apparently did accept that Mr Satwinder Singh was arrested twice in the Punjab, detained for relatively brief periods of time and beaten. Shortly after his release from the second period of arrest, Mr Satwinder Singh went to Rajasthan where he stayed for just over three months. He experienced no difficulties there but on his return to his home in the Punjab he was warned to leave and he went to Delhi. He remained in Delhi without problems until he left India for Thailand in July 1995.

In August 1994 Mr Satwinder Singh obtained, through an agent, an Indian passport. This was obtained in his own name on the basis of accurate personal details. Mr Satwinder Singh left India for Thailand using this passport. He apparently experienced no problems with the Indian authorities in doing so.

Mr Satwinder Singh travelled to Australia from Thailand on a tourist visa. He was detained on his arrival. His visa was cancelled as he had no funds for his stay in Australia. He was refused immigration clearance. His application for a protection visa followed.

THE APPLICANT'S CASE

The case put by Mr Satwinder Singh is well summarized in an affidavit affirmed by him and filed and served in support of his application. It is appropriate to set it out in full:

"1. I am the applicant herein. I applied for refugee status in Australia because I believe that I am a refugee within the meaning of the Convention relating to the Status of Refugees.

2. I do not believe that I received a fair hearing from the Refugee Review Tribunal. Whatever I tried to put forward, the member said I was lying. He refuted all that I said. When I put forward whatever were the problems I faced he turned it into a joke.

3. I related unfortunate things that had happened to me but I feel that I was not taken seriously. I handed documentation to the member but he said that it all could be duplicated and that anyone could get hold of such documents. When I told of other Sikhs facing persecution he said it was nothing to do with my case.

4. Because the member simply refuted everything I had to say and did not consider anything I became very confused. I did not know what to say to try to get the member to seriously listen to my story.

5. He wanted me to give short answers. You cannot do this well when you are emotionally involved. I wanted to tell him the whole story so that he understood it all but I was not given this chance. I came to believe he was sidestepping the issue. Everytime I said something he would smirk.

6. I put forward some documents. One of these was in Punjabi. The interpreter did not finish reading it because no-one was listening. This was an AISSF document and it related directly to me. Because of this the member did not know that I was Vice President of the AISSF.

7. Because of the way the member was treating me during the interview I got nervous and was not able to put forward my story properly. When I told him I was beaten up by the police because I was the AISSF Vice President, he said it was the work of the police to beat people up."

BIAS

Allegations of bias similar to those put forward by Mr Satwinder Singh in this case were made against the Refugee Review Tribunal, constituted by the same member as constituted the Tribunal in this case, in the case of Sarbjit Singh v Minister for Immigration and Ethnic Affairs (unreported, Federal Court, Lockhart J, 18 October 1996). In that case his Honour said (at 6):

"It is always difficult to explore the actual state of mind of a person said to be biased. Evidence to establish actual bias may consist of actual statements made by the person said to be biased, and of objective facts and circumstances from which an inference of bias may properly be drawn. Bias is not synonymous with absence of good faith; a person may in all good faith believe that he was acting impartially, but his mind may nevertheless be affected unconsciously by bias ..."

Lockhart J went on to identify the rationale for the doctrine of bias, whether actual or ostensible. He stated (at 7):

"The rationale ... concerned is:

'an overriding public interest that there should be confidence in the integrity of the administration of justice ...'(Gough's Case [R v Gough [1993] UKHL 1; [1993] AC 646], per Lord Goff of Chieveley at 659).

His Lordship also approved the statement of Lord Hewart CJ in R v Sussex Justices; Ex parte McCarthy [1924] 1 KB 256 at 259 that it is:

'of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done.'"

As his Honour pointed out:

"It is obviously a question of fact in each case to determine whether or not the Tribunal member has been so biased that his decision cannot be allowed to stand. If actual bias is proved, that is the end of the matter and the person concerned must be disqualified.

...

That the member concerned has formed a preliminary conclusion about a particular issue involved in an inquiry is not sufficient to establish actual bias, and so to disqualify a tribunal member from hearing a matter: Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70 per Gaudron and McHugh JJ at 100. Even where a decision-maker is shown to have expressed or otherwise formed strong views about an issue involved in an inquiry prior to the giving of evidence, actual bias will be established only where the evidence shows that those views were incapable of being altered because the decision-maker had unfairly and irrevocably prejudged the case."

The hearing before the Tribunal in this case was tape recorded. A transcript has been prepared of the hearing from the tapes. I was invited by the parties to listen to the tapes with the assistance of the transcript. I have done so omitting only certain introductory remarks of the tribunal member, one long passage of translation into Punjabi and a short segment near the end of the transcript which I could not find on the tapes.

Having listened to the tapes and read the transcript I am unable to accept the accuracy of Mr Satwinder Singh's statement that -

"[w]hatever I tried to put forward, the member said I was lying. He refuted all that I said. When I put forward whatever were the problems I faced he turned it into a joke."

For more than half of the hearing the tribunal member asked questions and received answers to those questions largely without comment. The manner of the tribunal member at the time was, in my view, unexceptional.

Later in the hearing the tribunal member demonstrated both frustration at, and disbelief of, answers given to him by Mr Satwinder Singh. For example, he suggested that certain information provided by Mr Satwinder Singh was "very convenient" and "incredible or ridiculous". As to an assertion by Mr Satwinder Singh that the Indian government influenced those who wrote reports on circumstances in the Punjab to which the tribunal member referred, the tribunal member replied:

"No, it's not true. I'm sorry its not true. It's nonsense. No, these reports are written by people who actually live in the country they don't need someone's permission to go to a place, they just go there, they visit places, they absorb the atmosphere of the country as a whole, they study the country. They're not just going to believe something because the Indian government says it's so. They are able to go out and see for themselves. I think its nonsense to make any other claim frankly."

On another occasion, after Mr Satwinder Singh made a statement asserting that Sikhs are about 35 per cent of the Punjab population, the Tribunal member responded:

"No. I'm sorry, it's 60 percent. Look, really, I mean, do you know any ... perhaps you don't come from the Punjab. Perhaps you're making this up. I mean really I know something about India. I may not have been there very often. I've been there once, but I've read about it. I know something about it. You mustn't assume that we are ignorant of the situation there, and you mustn't assume that we are automatically going to believe something just because you say it. I mean, we check things, we try and make sure that oh is that a reasonable ... I mean really."

Subsequently after asking Mr Satwinder Singh certain questions about the Punjab and receiving answers to those questions, the tribunal member laughed and asked:

"Did you actually live in the Punjab?"

The above remarks were made by the tribunal member in what appeared to me to be an exasperated and somewhat mocking tone.

In my view the hearing would have been more dignified, and Mr Satwinder Singh would have been able to leave the hearing with a greater sense of having been dealt with impartially, if the tribunal member had brought a more detached, and less argumentative, attitude to the conduct of the hearing.

However, as Lockhart J pointed out in Sarbjit Singh v Minister for Immigration and Ethnic Affairs:

"For bias to be established, the circumstances of the case must raise 'quite a substantial case': Khadem, per Hill J [Khadem v Barbour, Senior Member of the Administrative Appeals Tribunal (1995) 38 ALD 299]. Also, it is obviously permissible for judges or decision-makers to make their views known to a party during a hearing so that there may be an opportunity to fully discuss and ventilate the issues in the case: Khadem. It is not sufficient to show that a decision-maker has displayed irritation or impatience or even sarcasm during a hearing; regrettable though these manifestations may be, whether the relevant states of mind approach the level required to support a finding of actual bias remains a question of fact in each case."

I am not satisfied, having regard to the totality of the hearing, that a finding of actual bias can be made in this case on the basis of remarks made by the tribunal member of the kind set out above. Nor am I satisfied that such remarks show that the tribunal member failed to accord Mr Satwinder Singh a fair hearing or that the tribunal member failed to act according to substantial justice and the merits of the case.

Mr Satwinder Singh further complained that when he related "unfortunate things" that had happened to him he felt that he was not taken seriously and that the authenticity of documents provided by him was questioned. The weight to be given to the evidence before him was a matter for the tribunal member. I am not satisfied that anything said or done by the tribunal member relevant to this ground of complaint demonstrates actual bias on his behalf or that the tribunal member failed to accord Mr Satwinder Singh a fair hearing or that the tribunal member failed to act according to substantial justice and the merits of the case.

I do not accept Mr Satwinder Singh's complaint that "the member simply refuted everything I had to say and did not consider anything". The transcript, confirmed by the tapes, shows this complaint to be unfounded. Nor do I accept that Mr Satwinder Singh was not given a chance to tell his story and became "very confused". Mr Satwinder Singh was, in my view, given a fair opportunity to tell his story. Moreover he is shown by the transcript and the tapes to have engaged in quite incisive interchanges with the tribunal member. For example, an issue arose during the hearing as to funds available to Mr Satwinder Singh upon his arrival in Australia. Mr Satwinder Singh stated that he did not have money with him when he arrived in Australia but that the agent with whom he was travelling had said that she had money. The transcript records the following exchange between the tribunal member, Mr Whitlam, and Mr Satwinder Singh through his interpreter:

"WHITLAM

So the agent was carrying the money?

INTERPRETER

She was saying that she did have.

WHITLAM

So did she give you some of it?

INTERPRETER

No.

WHITLAM

So, she's still got it has she?

INTERPRETER

I don't know whether she had it or not only she knows whether she had it or not. Like I can tell you I've got the money but you don't know whether I have got it or not, its just that I'm telling you that I've got it."

Other examples occurred during the course of the hearing of Mr Satwinder Singh querying the logic of the tribunal member and putting questions to him. I do not accept that Mr Satwinder Singh became confused during the course of the hearing, although I do accept that he found at least the later part of the hearing uncomfortable.

No evidence was placed before me with respect to Mr Satwinder Singh's complaint concerning an AISSF document which he asserts in his affidavit that "[t]he interpreter did not finish reading because no- one was listening". The transcript and the relevant tape reveal some confusion as to the precise contents of the AISSF document. However, it is plain that the tribunal member asked:

"So does the document just say that you became a member of the AISSF on the 1st of April 88, is that all it says?"

and received the answer "Yes".

Even if the document did assert that Mr Satwinder Singh was Vice- President of the AISSF there is no reason to think that this would have been material to the tribunal member's consideration. So far as this application for review is concerned, however, the issue of the AISSF document does not support suggestions of a failure to accord a fair hearing, a failure to act according to substantial justice and the merits of the applicant's case or bias in the tribunal member.

It should also be recorded that the transcript and the tapes do not support Mr Satwinder Singh's allegation that the tribunal member said that it was "the work of the police to beat people up." He did say "unfortunately I understand that it [i.e. beating by the police] is fairly routine in India". I do not consider that this statement can be regarded as demonstrating bias on the part of the tribunal member or otherwise as showing that Mr Satwinder Singh was not afforded a fair hearing on the merits.

I have considered the matters of complaint issued by Mr Satwinder Singh. I am satisfied that none of them demonstrates actual bias in the tribunal member. Nor do they viewed together, in my view, establish a case of actual bias.

I am not satisfied that it has been established that the tribunal member failed to act according to substantial justice or failed to act fairly when the hearing is considered in its entirety. I am not satisfied that Mr Satwinder Singh was not afforded substantial justice by the tribunal member. For these reasons it is not necessary for me to express a final view as to whether grounds 1 and 2 of the application are grounds of review available to the appellant under s476 of the Act.

The decision of the Immigration Review Tribunal is affirmed.

I certify that this and the preceding eleven (11) pages are a true copy of the reasons for judgment of the Honourable Justice Branson.

Associate:

Date:

The applicant appeared in person

Counsel for the respondent: Mr N. Williams

Solicitor for the respondent: Australian Government

Solicitor

Hearing day: 9 December 1996