H K v Minister for Immigration and Multicultural Affairs

[2001] FCA 1581

FEDERAL COURT OF AUSTRALIA

H K v Minister for Immigration & Multicultural Affairs [2001] FCA 1581

H K v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1081 OF 2001

DOWSETT J
25 OCTOBER 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1081 OF 2001

BETWEEN:	H K APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	DOWSETT J
DATE OF ORDER:	25 OCTOBER 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the proceeding, including reserved costs.

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	N 1081 OF 2001

BETWEEN:	H K APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	DOWSETT J
DATE:	25 OCTOBER 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application pursuant to s 476 of the Migration Act 1958 (Cth) for review of a decision by a Refugee Review Tribunal, affirming an earlier decision to refuse a protection visa for the applicant. The applicant was born on 23 October 1968 in India. He claims to be of the Sikh religion, or perhaps a member of the Sikh ethnic group. The Tribunal appears to have had some doubts about that claim, but it is not necessary to consider it further. It proceeded upon the basis that such was the case. He entered Australia in March of 1998 and applied for a protection visa on 22 April of that year. As I have said, that application was unsuccessful. The grounds of his application appear from the lengthy and careful reasons prepared by the Tribunal in justification of its affirmation of the earlier decision. It is not necessary that I rehearse them in detail but I will give a broad outline.

2. As I have said, he claims to be a Sikh and, to some extent, his claim to refugee status depends upon that assertion.  However there is a second aspect to his claim.  It is that he is a member of a particular social group and that, as such, is fearful of persecution.  The particular social group is comprised of himself, his mother and, I think, his grandmother.  It is said that they have been singled out for persecution by members of the Hindu community in India because his mother, a Hindu, married his father, a Sikh.  Thus, it is on these twin bases that he seeks identification as a refugee and a consequential protection visa.  To some extent, the Tribunal appears to have addressed the two approaches as one.  Obviously it would be difficult to determine whether individual actions directed against the applicant were motivated by his being a Sikh or by his family connection. 

3. As is well known, in 1984 there were substantial troubles in India, particularly between the Hindu community and the Sikh community.  The applicant’s difficulties appear to have started at about that time and to have continued until about 1993.  He claims that during this period he was subjected to harassment, violence and intimidation.  There is no suggestion of such conduct against him after 1993 until late 1997 or early 1998 when another incident occurred.  This later incident was not mentioned by him in his application, although the application was made very shortly after it allegedly occurred.  This matter is of some importance because the Tribunal considered that his failure to raise the matter in his application cast doubt upon the veracity of his assertions.  It is fair to say that the Tribunal’s determination of his claim hinged to a substantial degree upon this aspect of the case, taken in the context of all of the evidence, particularly the country information as to conditions in India.  Relevantly, that evidence demonstrated that there was no significant persecution of Sikhs in the Indian community at the relevant time, that generally speaking, the Government was able to maintain order and that people were able to look to the Government for protection.  These matters led the Tribunal to accept the applicant’s evidence as to persecution up to and including 1993 but to reject his evidence of subsequent persecution in 1997 and 1998.  These findings informed the Tribunal’s conclusion that the applicant had no well-founded fear of persecution, either because of his being a Sikh or because of his membership of a particular social group. 

4. It is difficult to see any basis upon which that decision can be criticised upon any of the grounds identified in s 476. However, the applicant raised a number of quite specific matters, and it is appropriate that I deal with them. Much of his criticism was of a semantic kind. He asserted that generalised summaries of his evidence did not precisely reflect his words. Such arguments appear particularly in his written submissions. I have perused the reasons of the Tribunal and it seems to me that his criticisms lack substance. I have formed the view that in so far as it is possible to tell, the Tribunal has fairly assessed the evidence as it was before it. I refer particularly to the points made in the written submissions, in particular at pars 8 and following, which deal with specific factual matters. It is sufficient to say that no basis has been demonstrated for any claim that the Tribunal mis-stated or misunderstood the evidence.

5. The applicant relied substantially upon grounds related to onus of proof.  In the strict sense, such issues have no real role in these proceedings.  He claimed that the Tribunal had placed upon him a substantial onus to prove his case.  I see nothing in the reasons to suggest that this is so or that the Tribunal misunderstood its own function in this regard.  It was also suggested that the Tribunal had failed to take account of a real chance that it might be incorrect in its view of the applicant’s evidence and that he might really be at risk of persecution were he to return.  Again, I can see nothing to lead me to the conclusion that the Tribunal did not understand the seriousness of the task upon which it had embarked.  Its findings based upon the country evidence as to conditions in India deprive this point of any substance.  The applicant also complained that the Tribunal had not understood or dealt with the case based on his position as a member of a social group.  I do not find any substance in that criticism.  It seems to me that the Tribunal understood that it was dealing with that case as well as the case based upon his religion or ethnicity.

6. It was suggested that the Tribunal had not brought sufficient scepticism to its assessment of the evidence coming from the Department, particularly as to conditions in India.  I really cannot see any basis for that criticism.  The function which the Tribunal was called upon to perform was to assess the matters raised by the applicant in the light of the information available as to conditions in India.  This, it seems to me, it did in an entirely conscientious way.

7. Finally, the applicant asserted that the Tribunal had refused to accept as true certain allegations made in letters which were produced to the Tribunal by the applicant.  These letters were from persons in India and purported to support his evidence of victimisation and harassment, particularly in 1997/98.  He claimed that he was not told that the Tribunal was concerned about the veracity of the assertions contained in those letters.  He said that he had asked the Tribunal whether or not he should have affidavits rather than letters but was told that the Tribunal was not bound by the rules of evidence and that this was not necessary.  It seems to me that in so doing, the Tribunal was trying to assist him.  He suggested that he had misunderstood the Tribunal’s meaning, assuming that it was not concerned about the truthfulness of the content of the letters.  I cannot accept that he had such a misunderstanding.  He was told in the course of the proceedings that his own credibility was very much in issue.  He must have understood that the Tribunal was concerned as to whether the principal events in issue in the proceedings had occurred and that it would therefore scrutinize all of the evidence concerning those alleged events.  The Tribunal was unwillingly to act upon the applicant’s evidence as to particular aspects of his case because these matters had not been raised at an earlier stage.  The applicant criticised this conclusion, saying, correctly in my view, that there may often be reasons for a person not to refer to aspects of his or her case at an early stage, but that was a matter for consideration by the Tribunal.  It is not something which I can take into account in this application. 

8. I am firmly of the view that no ground for review pursuant to s 476 is demonstrated. In those circumstances the application must be dismissed.

9. I order that the applicant pay the respondent’s costs of the proceedings including reserved costs.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated:             8 November 2001

The Applicant appeared In Person:
Counsel for the Respondent:	Ms S Kaur-Bains
Solicitor for the Respondent:	Blake Dawson Waldron
Date of Hearing:	25 October 2001
Date of Judgment:	25 October 2001