Minister for Immigration & Ethnic Affairs & Anor v Mohinder Singh [1997] FCA 17 (24 January 1997)

CATCHWORDS

MIGRATION - Refugees - Well-founded fear of persecution - Facts on which fear based - Whether to be determined at date of application for refugee status or date of determination of application.

Migration Act 1958 , s 36

Migration Reform Act 1992 , s 39

Dai v Minister for Immigration and Ethnic Affairs (unreported, Full Court, 18 September 1996)

Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379

Somaghi v Minister for Immigration and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100

Morato v Minister for Immigration and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401

Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 130 ALR 314

Lek v Minister for Immigration and Ethnic Affairs (No 2) [1993] FCA 493; (1993) 45 FCR 418

Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290

MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL v MOHINDER SINGH SG 52 of 1996

COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ

PLACE: Adelaide

DATE: 24 January 1997

IN THE FEDERAL COURT OF AUSTRALIA )

SOUTH AUSTRALIAN DISTRICT REGISTRY ) No SG 52 of 1996

GENERAL DIVISION )

BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL

Appellants

AND: MOHINDER SINGH

Respondent

COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ

DATE: 24 January 1997

PLACE: Adelaide

MINUTES OF ORDER

The Court orders that:

1. The appeal be allowed.

2. In lieu of the order of Branson J it be ordered that the application dated 17 August 1995 be dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA )

SOUTH AUSTRALIAN DISTRICT REGISTRY ) No SG 52 of 1996

GENERAL DIVISION )

BETWEEN: MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL

Appellants

AND: MOHINDER SINGH

Respondent

COURT: Black CJ, Lee, von Doussa, Sundberg and Mansfield JJ

DATE: 24 January 1997

PLACE: Adelaide

REASONS FOR JUDGMENT

THE COURT:

The proceedings

On 15 August 1991 the respondent applied for refugee status under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees. The application was rejected by the delegate of the Minister for Immigration and Ethnic Affairs on 8 October 1992. By virtue of s 39 of the Migration Reform Act 1992 ("the Reform Act") the delegate's decision had the effect of a refusal of a protection visa. On 2 November 1992 the respondent lodged with the Refugee Status Review Committee an application for review of the decision. That Committee ceased to exist from 1 July 1993, and the application to it was referred to the Refugee Review Tribunal. On 24 July 1995 the Tribunal affirmed the delegate's decision. The respondent's application to review the decision was granted by Branson J. Her Honour set aside the decision on the ground that the Tribunal had made an error of law, in that it had evaluated whether the respondent's fear of persecution was well-founded as at the date of its determination rather than the date of his application for refugee status. The present appeal is from that decision.

Applicable law

Under s 39 of the Reform Act, an application for refugee status made before 1 September 1994 but not finally determined by that date is to be dealt with under the law in force on and after that date. Thus the law which governed the primary judge's review of the Tribunal's decision was to be found in the Migration Act 1958 ("the Act") as in force on and after 1 September 1994. See Dai v Minister for Immigration and Ethnic Affairs (unreported, Full Court, 18 September 1996). The grounds of review were therefore those appearing in s 476 of the Act. The ground which her Honour held was made out was that in sub-s (1)(e) - "that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law ...".

Factual background

The respondent is an Indian citizen. He is a Sikh from a village in the State of Punjab, and for most of his adult life has been a farmer. He entered Australia as a visitor on 11 October 1990 and was issued with an entry permit valid until 12 August 1991. He has remained in Australia since that time.

In a statement supporting his application for refugee status, the respondent told the following story. There are several pump houses on his land in India. The pump houses cover the motors of pumps used for flood irrigation. They are also used for the storage of tools. In about October 1988 the respondent discovered that five members of a group known as the Bhindranwale Tiger Force ("the BTF") were living in one of his pump houses. They remained there for about three months with the respondent's permission. He said that BTF members are committed to the foundation of an independent Sikh state and believe in terrorism and violence. The respondent was sympathetic to the aims of the BTF but not to its methods.

The occupation of the pump house by the BTF was brought to an end by a police raid at 4.00 am on 11 January 1989. The members of the BTF had apparently been warned of the raid and escaped. The police found buried weapons and a two way radio. They questioned the respondent and "roughed him up quite a bit". Two of his sons were taken away for questioning. A tractor and a scooter were confiscated. By means of bribery the respondent regained possession of them, though they had been damaged. The respondent's sons were held in custody for twenty days and tortured. No formal charges were laid against them. Two days after the original raid the police returned to the respondent's house. He was not at home but his wife and mother were, and they were taken away by the police and held for two days. Following the release of the respondent's two sons the police frequently visited his home, harassing him and his family and treating property roughly. In September 1989 the respondent was arrested and held for a week during which time he was tortured. On 17 January 1990, in the early hours of the morning, the police took the respondent's two eldest sons away in a van, apparently because they believed the sons knew something about the BTF members who had been on his property. His sons were taken from the local police station to an interrogation centre. The respondent was able to see his sons only sporadically. He last saw them on 15 April 1990 when they seemed extremely weak and had apparently been tortured. He does not know whether they are still alive.

When the respondent decided to leave India with his wife to avoid further harassment by the police, he was unable to obtain local police clearance to obtain passports for his youngest son and his daughter. He and his wife already held passports. They travelled to Australia leaving their two youngest children in the care of relatives of their mother.

The Tribunal does not appear to have accepted the respondent's statement in its entirety. However, in view of independent supporting evidence, it did accept that his property was raided by the police in January 1989, that members of his family were taken into custody, that some property was confiscated or damaged, and that the respondent was detained for one week in September 1989.

Although the Tribunal did not expressly find that the respondent's claim that members of the BTF sought shelter on his property was a fabrication, it expressed reservations regarding his credibility on this issue. It concluded that the Punjab authorities were more concerned with the activities of the respondent's two sons than with those of the respondent himself. It further concluded that the respondent was "not of any adverse interest to the Indian authorities at the time of his departure in October 1990".

Tribunal's decision

The Tribunal found that the respondent feared persecution on the grounds of religion and imputed political opinion. It reviewed the situation of Sikhs in India, particularly in the Punjab, by reference to material which included government and non-government reports, and reached the following conclusions with respect to his claims of fear of persecution should he return to India:

In the first instance, it is understandable that the Applicant should maintain a fear of return to India in the light of his past experiences of detention and mistreatment by the authorities and particularly in view of the disappearance of his two sons. Despite these experiences, however, information from a variety of sources clearly demonstrates that there has been a dramatic improvement in the security situation in the Punjab in the intervening years since his departure. From the evidence examined above, it would appear that the Indian authorities in the Punjab are targeting top Sikh militants and those with a degree of prominence in human rights reporting. I find, therefore, that there is substantially less than a real chance of the ordinary Sikh with no continuing involvement of any significance in separatist activities attracting the kind of detention and mistreatment which the applicant has experienced in the past.

Relevant time

The primary judge reviewed decisions dealing with the time at which a person's status as a refugee is to be assessed, and concluded that the critical time is when recognition as a refugee is sought. The Tribunal was therefore required to make findings of fact which were relevant to the status of the respondent as at 15 August 1991, the date on which he lodged his application for refugee status. This it had not done, and had thus made an error of law.

The question raised by the appeal is whether the time at which a person's application for refugee status is to be assessed is the date on which the application for that status is lodged or the date of the determination of the application. The appellants argue for the latter; the respondent for the former.

Putting authority to one side, the date of the determination would seem to be the proper time at which the assessment is to be made. Section 36(1) of the Act provides for a class of visas to be known as protection visas. Sub-section (2) provides:

A criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol.

The Convention defines a "refugee" as 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.

Although cast in different language, doubtless reflecting the different situations of a person who has a nationality and one who does not, the expressions "unwilling to avail himself of the protection of that country" and "unwilling to return to it" both look to whether the applicant answers the description of a person who has a well-founded fear of persecution if he is returned to the country of his nationality or former habitual residence. The well-founded fear is thus tied to the time at which the question of return arises.

The fact that in many cases there will be an interval between a person's departure from the country of nationality or former habitual residence and arrival in Australia and application for a protection visa, and a further interval, perhaps a lengthy one, between the application and the Minister's determination, does not alter the fact that the definition of "refugee", and thus s 36(2), require the applicant to show a well-founded fear of being persecuted if returned to the country of nationality or former habitual residence. The fear is not a fear in the abstract, but a fear owing to which the applicant is unwilling to return, and thus it must exist at the time the question of return arises, namely at the time the decision is made whether the applicant is a refugee.

To require an applicant to show a well-founded fear at the time of determination rather than at the time of lodgment of the application produces a sensible result in cases where events occurring between the two dates makes a choice between them necessary. To choose the application date is to risk rejecting the claim of a person who in fact satisfies the requirement at the date when the question of return arises, and to countenance the possibility of accepting as a refugee a person who may have satisfied the requirement at the date of the application but, because of improved conditions in the country of nationality or habitual residence, no longer satisfies it at the date when the question of return arises.

Section 48A, which came into operation on 1 September 1994, provides that a non-citizen whose application for a protection visa has been refused may not make a further application while still in Australia. (There is a limited exception requiring the personal attention of the Minister provided for by s 48B.) If the relevant time is the date of the making of an application for refugee status, an applicant who could not show a well-founded fear at the date of the application, but by reason of changed circumstances could do so at the time of the determination, would be rejected, and because of s 48A, subject to s 48B, would be unable to make a further application so as to take the benefit of the new circumstances. That would hardly accord with the humanitarian aims of the Convention. The view we prefer, namely that the relevant time is the date of the determination, accords with those aims.

As to the authorities, different views have been taken by judges of the Court as to whether the relevant time for the assessment was decided by the High Court in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379. Thus in Somaghi v Minister for Immigration and Ethnic Affairs [1991] FCA 389; (1991) 31 FCR 100 at 101, 105, 115 Keely, Jenkinson and Gummow JJ were in no doubt that Chan was authority that the time at which the possession of the status of refugee is to be considered is that at which the determination by the Minister is made. But in Morato v Minister for Immigration and Ethnic Affairs [1992] FCA 637; (1992) 39 FCR 401 Lockhart J took the view, based on the judgments of Mason CJ and McHugh J in Chan, that the "question whether or not a person answers the description of a 'refugee' ... must be determined upon the facts as they exist when the person concerned seeks recognition as a refugee". Burchett, O'Loughlin and R D Nicholson JJ took the same view in Ram v Minister for Immigration and Ethnic Affairs [1995] FCA 1333; (1995) 130 ALR 314 at 315. On the other hand, in Lek v Minister for Immigration and Ethnic Affairs (No 2) [1993] FCA 493; (1993) 45 FCR 418, after a close examination of the judgments in Chan, Wilcox J was of the opinion that the High Court had not decided the matter as the need to choose between the two times did not arise. His Honour concluded, independently of Chan, that the critical time was the date of the determination of the application. Branson J was conscious of the differences of opinion that have been expressed in this Court, but considered herself bound by Ram, the most recent Full Court case.

Expressions can be found in the judgments in Chan which to varying degrees support one view or the other. Thus Gaudron J at 414 said that the well-founded fear must exist "at the time that his application for recognition is considered". Dawson J at 398-399 said that refugee status must be "determined according to existing circumstances whenever a determination is required". The other three members of the Court used less precise language - "the facts as they exist when the person concerned seeks recognition as a refugee" (Mason CJ at 386-387), "when recognition by the state party is sought" (Toohey J at 406), and "the facts as they exist as at the date when he seeks recognition by a State party" (McHugh J at 432). In each case the emphasis is added. None of these last- mentioned expressions necessarily points to the time an application is lodged as opposed to the time it is determined. The facts in Chan did not require a choice between those times. There the question was whether the status of refugee turned upon the facts existing when Chan left China or those existing when, to use a neutral expression, the issue of recognition arose in Australia. See per Dawson J at 398, Toohey J at 405, Gaudron J at 414 and per McHugh J (with whom Mason CJ agreed) at 431-432.

The primary judge referred to a passage at pp 386-387 of the judgment of Mason CJ in Chan, where his Honour relied on the words of s 6A(1)(c) of the Act - "the Minister has determined ... that he has the status of refugee ..." for the view that the relevant time was when the person concerned "seeks recognition as a refugee". Her Honour said that s 36 proceeds on the same view of the Convention as did s 6A(1)(c) - a person "to whom Australia has protection obligations ...". However, that Mason CJ did not by the words "when the person concerned seeks recognition as a refugee" intend to posit the date of application as opposed to the date of determination, is shown by what his Honour, Deane and Dawson JJ said about those words in Minister for Immigration and Ethnic Affairs v Mayer [1985] HCA 70; (1985) 157 CLR 290 at 302:

Plainly, enough the words "has the status of refugee" refer to the possession of such status at the time when the grant of an entry permit is under consideration. As the definition of "refugee" ... makes clear, a person can become or cease to be a "refugee" according to his own circumstances or circumstances within "the country of his nationality" at the time when his "status" is being determined. That being so, the reference to a determination that an applicant for an entry permit "has" the status of refugee is a reference to a contemporaneous determination rather than to some past determination that the applicant had the "status of refugee" at the time when the past determination was made.

Indeed in Chan, immediately after he had observed that the question was to be determined upon the facts as they exist when the person "seeks recognition as a refugee", Mason CJ said that the words of s 6A(1)(c) - "the Minister has determined ... that he has a status of refugee" - made that clear. And he referred to the passage in the joint judgment in Mayer set out above.

In our view the time issue was not decided by Chan. In Ram it was thought that Chan had decided the point, but in Ram no issue as to the time at which the matter must be judged arose, and the question does not appear to have been argued. Because of the conflicting views that have been expressed in this Court, it is necessary for us to come to our own conclusion. For the reasons given independently of authority, the crucial time is the date of determination of the application. That view accords with the position reached in New Zealand on the basis of Chan "as explained and applied in Lek v Minister for Immigration and Ethnic Affairs (No 2) [1993] FCA 493; (1993) 45 FCR 418, 422-425": see the decision of the Refugee Status Appeals Authority in Re HB (21 September 1994). It also accords with the position in the United Kingdom (Reg v Home Secretary; Ex parte Sivakumaran [1987] UKHL 1; [1988] AC 958, at 992-994, 998) and in Canada (Salinas v Canada (Minister of Employment and Immigration) (1992) 93 DLR (4th) 631, a decision of the Federal Court of Appeal). The survey of European jurisdictions in Lambert, Seeking Asylum, Comparative Law and Practice in Selected European Countries (1995) at 85-87 shows that the decision-making authorities in the United Kingdom, France, Sweden, Germany and Switzerland operate on the basis that the relevant date is the date of determination. The focus on the existence of the well-founded fear of persecution at, and prospectively from, the date of determination also exists in decisions in the United States. See Hathaway, Law of Refugee Status (1991) at 75-83.

Conclusion

For ease of discussion these reasons have proceeded on the basis that the choice to be made is between the facts existing at the date of the application and those existing at the date of the determination. In selecting the latter date, it must not be thought that the decision- maker, in determining whether a well-founded fear exists, looks exclusively at the facts that exist at that date. Thus in Chan at 399 Dawson J said:

Of course, the circumstances in which an applicant for recognition of refugee status fled his country of nationality will ordinarily be the starting point in ascertaining his present status and, if at that time he satisfied the test laid down, the absence of any substantial change in circumstances in the meantime will point to a continuation of his original status.

See also per Gaudron J at 414-415. The same point is made by two of the justices who spoke of the date at which recognition is sought, rather than the date of the determination. See per Mason CJ at 387 and per Toohey J at 406.

There being no notice of cross-appeal or notice of contention filed by the respondent, the appeal should be allowed and in lieu of the order made by Branson J it should be ordered that the application dated 17 August 1995 be dismissed. In all the circumstances we propose that there be no order as to costs.

I certify that this and the preceding ten pages are a true copy of the reasons for judgment of the Court.

...................................................................... .

Associate

24 January 1997

Counsel for the Appellants: S Maharaj and G Gretsas

Solicitor for the Appellants: Australian Government Solicitor

Counsel for the Respondent: G Patel

Solicitors for the Respondent: Patel & Co

Date of Hearing: 11 November 1996

Place of Hearing: Adelaide

Date of Judgment: 24 January 1997