Kaur, Paramjit v Minister for Immigration and Multicultural Affairs

[1998] FCA 1728

FEDERAL COURT OF AUSTRALIA

Immigration – Review of decision of Refugee Review Tribunal – applicant asserting a risk of persecution on account of activities of her husband in the Punjab – husband also seeking a protection visa in Australia – Tribunal did not subpoena husband to give evidence – whether failure by Tribunal to act according to substantial justice and the merits of the case

Migration Act 1958 (Cth) ss 420, 425, 426, 427, 476

Matter No. SG 59 of 1998

PARAMJIT KAUR v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

VON DOUSSA
ADELAIDE
18 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 59  of   1998

BETWEEN:	PARAMJIT KAUR APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		VON DOUSSA J
DATE OF ORDER:		18 DECEMBER 1998
WHERE MADE:		ADELAIDE

THE COURT ORDERS THAT:

The application for review be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SG 59 of 1998

BETWEEN:	PARAMJIT KAUR APPLICANT
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	VON DOUSSA J
DATE:	18 DECEMBER 1998
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

This is an application for review of a decision of the Refugee Review Tribunal (the RRT) dated 16 February 1998, and notified to the applicant on 14 April 1998.  The decision refused the applicant a protection visa.

The initial application to this Court filed on 8 May 1998, failed to identify any legitimate ground for review. The application merely recited the available grounds for review under s 476 of the Migration Act 1958 (Cth) (the Act) and did so in terms of s 476(1). In a supporting affidavit the applicant deposed that the RRT had not looked at the merits of the case, and specifically did not look at the violent political situation in the Punjab at the time she lodged her application for refugee status. She repeated a claim that she had earlier made that she was a refugee entitled to a protection visa as there existed because of her family’s past activities in the Punjab, a real chance of the Indian authorities arresting her, and that there could be no guarantee of her safety if she were to return to India.

An amended application filed by direction on 29 July 1998 has specified a precise ground for review. It alleges that the RRT, contrary to the requirements of s 420 of the Act, failed to act according to substantial justice and the merits of the case in conducting its hearing, because, in particular, it failed to summon one Baljit Singh to give evidence in the applicant’s case.

It is asserted by counsel for the applicant, and for the purposes of today’s hearing it may be accepted, that a failure to comply with the procedural requirements of s 420 constitutes grounds for review by this Court under paragraphs 476(1)(a) and (e) of the Act; Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621.

To understand the ground for review it is necessary to refer to the background facts and to the hearing before the RRT.  The applicant is a national of India who arrived in Australia on 24 August 1996.  She made a claim for a protection visa.  Her original claim was on the basis that she considered herself to be a member of a particular social group subject to persecution, namely divorced Sikh women in India.  Her application was supported by documents establishing the fact of her divorce.

That ground was abandoned in the course of the hearing before the RRT and an alternative claim was advanced based on imputed political opinion or on her membership of a particular social group, namely her family, who were Sikhs in the Punjab.  The claims are recorded in some detail in the reasons of the RRT, and I think it is necessary to recite them.  In the original claim the applicant stated that she is a Sikh, born in the Punjab in 1971.  She lived in the Punjab and attended school until 1988.  She married in 1991 and divorced in 1996 after her arrival in Australia.  She has two children, born in 1992 and 1993, and they live in India.

The divorce papers sent to the Department asserted simply that for the last two years or so the parties could not adjust to each other properly, serious differences developed between them and that resulted in a complete breakdown of their marriage relations.  On the basis of those papers the delegate found – rightly – that there was no Convention basis upon which the applicant could be considered a refugee.

In appealing to the RRT the applicant gave further detail of her marital situation and said that she did not wish to return to India because as a divorced woman she would be unwelcome and would impose a financial burden on her parents.

At the hearing before the RRT new claims were for the first time advanced by the applicant which potentially raised a Convention ground.  She asserted that her husband, Baljit Singh, had been connected with the Sikh extremists of the Simranjit Singh Mann faction of the Shiromani Akali Dal.  She said he had been involved with this group since about July 1993.  His activities had included looting premises and beating up people.  He had not held any particular position in the group.

She said that at first the police had not known of his involvement, but after about a month they came to know and this led to a lot of trouble for him.  The police came frequently to their house, they apprehended her husband, and took him to the police station.  At the police station, she said, he was regularly beaten up, and on one occasion all his hair had been pulled out.  On another occasion she said he had been left for dead at the side of the road, and he had been held for various periods, sometimes up to a week.

The applicant asserted that in 1995 she and her husband approached a Minister of the Government in the Punjab State who had been able to assist them, but in 1996 when the Minister died that assistance subsided and the police again harassed them.  Her husband was again taken to the police station and beaten up.  She said that in April 1996 he fled to another State not telling her exactly where he was living.  He did not return except for one day when he came back to suggest that he and the applicant should leave India.  She then applied for a passport and obtained one without difficulty.

The applicant said that she was not a member of the group herself, and did not take part in her husband’s activities or go to meetings of the faction, however, she used to assist by feeding the group members who came to their house, and by washing their clothes.  For this reason, and also simply because of being Baljit Singh’s wife, she was herself subject to harassment by the police.  From time to time she was taken to the police station where she was beaten, insulted, and humiliated.  Sometimes she was released the same day, sometimes the next day.  She said she wanted to divorce her husband as a means of being free from the attention of the police, and so this was arranged.

The applicant told the RRT that her husband had obtained his passport sometime earlier, that he did not have any difficulty at the airport in leaving, and that he is still in Australia, although they are living separately and she does not know much about his situation.  She said that their children now live with the grandparents in the Punjab, and that she has been told by relatives that the police are calling at their house on a daily basis to look for them.

The RRT, on receiving these new claims, obtained the Departmental file and an RRT file relating to Baljit Singh.  The papers disclosed that he was also an applicant for refugee status, that his original application was rejected by the Department, and that an application for review by the RRT had not yet been heard.  The file papers disclosed that Baljit Singh had expressly denied ever having been a member of any political party, and had made no claim based on political opinion.  The RRT put that information to the applicant and sought her response.

The applicant replied that Baljit Singh had said those things because he feared that information would leak back to the Indian authorities, who might harass his parents and children.  However, the applicant said that she was now satisfied that this information would not leak back to India and therefore she was prepared to disclose the truth.  She reiterated that her husband belonged to the Samranjit Singh Mann faction of the Shiromani Akali Dal.  She said that she did not face persecution from the Sikh community as a divorced woman, but that her fear was one of persecution on political grounds.

The applicant also produced to the RRT documents which she offered in support of the revised ground of claim for refugee status.  One was a statutory declaration from Palminder Singh, who was not otherwise identified.  He said he had known Baljit Singh since 1995 and knew of his activities in the freedom movement for Khalistan.  He said he had visited his family in the Punjab between January and September 1997 and during this time he was told that the police were seeking Baljit Singh, whose life was in danger.

The second document was a copy of an arrest warrant dated 22 December 1997, which named Baljit Singh.  The third document was a copy of a letter to Baljit Singh from an advocate in the Punjab dated 10 January 1998, stating that he was representing the latter before the courts, and that the police were in “hot search” of Baljit Singh, and that a case had been raised against him for sheltering terrorists.  The letter said that Baljit Singh’s life was in danger if he returned.  Finally, there was a copy of a letter allegedly from the Shiromani Akali Dal dated 29 January 1998, which stated that Baljit Singh had fled India because his life was in danger.  The letter also referred to human rights abuses against suppporters of the party.

The RRT considered these documents.  It concluded, on grounds which are not challenged before this Court, that the documents presented by the applicant were not authentic.  The documents were therefore rejected as having no evidentiary value.  The RRT also considered that the applicant’s story lacked conviction.  The RRT was not prepared to accept the applicant’s evidence as credible, and accordingly it concluded that there was no basis for a finding that she would suffer a real risk of persecution if she were to return to India.

The adverse credibility findings were based on several grounds.  First, the RRT noted that the applicant had not returned to India but had decided to remain in Australia and pursue a claim for refugee status.  Having so decided, the RRT found that there was no plausible explanation given by the applicant for her failure to put forward the case upon which she sought relief in her initial application for refugee status.  The RRT noted, it said “with great scepticism”, a letter to the RRT dated 11 February 1998, forwarded after the hearing concluded, which made yet another claim, namely membership of the Bhindranwale Tiger Force.  That was a claim not made at the hearing, and the RRT said that in its opinion this strongly suggested invention.

The RRT also noted that the applicant and Baljit Singh do not live together in Australia, and this suggested to it that the applicant’s statement that she was forced to separate from her husband in order to avoid harassment of the Punjab police was not true, and the divorce was simply for the usual reasons for which people divorce, as was suggested by the divorce papers themselves.

Significant to the grounds of the present application to this Court the RRT also said:

“The Tribunal gives considerable weight to the absence of mention of any of the new claims in the application by Baljit Singh.  The Tribunal does not accept as plausible the explanation for this which the applicant has provided.  It is significant that although statement by others have been sent, no statement by Baljit Singh himself has appeared.  This cannot be explained by fear of consequences: since the allegations about him have now been made by his ex-wife, he would have nothing to lose and much to gain by confirming them.  None of the documents, [that is the documents presented by the applicant in support of her revised claim] though all concerned with Baljit Singh, have been submitted or endorsed by Baljit Singh himself.”

Against this background I return to the ground for review raised in this Court. The amended application, having identified a failure to discharge the duty under s 420 for not summonsing Mr Baljit Singh to give evidence, gives further particulars of the allegation. The amended application says:

“The Tribunal actually cross-examined the Applicant concerning the Applicant’s failure to provide a statement from Baljit Singh in the Applicant’s case, and yet the Tribunal itself did not summon Baljit Singh to give evidence in the Applicant’s case pursuant to Sections 425(b) and 427(3) of the Act in circumstances where the Tribunal knew that pursuant to Section 427(6) of the Act the Applicant was not entitled to be represented before the Tribunal and was not entitled to examine or cross-examine any other person appearing before the Tribunal to give evidence.”

These particulars formed the basis of oral argument by counsel for the appellant today.

The proceedings before the RRT are inquisitorial. The RRT is required by s 420 in carrying out its functions to pursue the objective of providing a mechanism of review that is fair, just, economical, informal and quick. By s 420(2) the RRT in reviewing the decision is not bound by technicalities, legal forms or rules of evidence, although it is required by paragraph (b) to act according to substantial justice and the merits of the case.

The applicant came before the RRT after receiving a notice under s 426(1) informing her that she was entitled to appear to give evidence and that within seven days after receiving that notice she could give the RRT written notice that she wanted it to obtain oral evidence from a person or persons named in the notice. She had not asked that any person be called to give evidence.

The RRT has a power under s 427(1)(d) to require the Secretary to arrange for the making of investigations, and power under s 425(1)(b) to obtain other evidence as it considers necessary. It has power under s 427 to take evidence on oath and for that purpose to summons a person to appear before the RRT to give evidence.

The ground now relied upon by the applicant in support of her claim was not known to the RRT at the commencement of the hearing.  It was disclosed during the hearing.  It seems that the RRT was able at short notice to obtain information about Mr Baljit Singh from Departmental and RRT files.

As the hearing before the RRT is an inquisitorial proceeding, in my view it is not helpful to characterise the questions that were asked by the RRT of the applicant concerning Baljit Singh’s statements as “cross-examination”.  The RRT in fulfilling its obligation to conduct a fair hearing was required to put to the applicant information which came to the RRT’s attention that was adverse to the applicant’s case, to give her the opportunity to respond.  Plainly it was adverse to her case that Mr Baljit Singh had not mentioned any of the matters upon which she relied in his application.  In putting this material to the applicant the RRT was not adopting the adversarial role of a cross-examiner.

The response received by the RRT was to the effect that Mr Baljit Singh had not disclosed the truth to the Department because he was concerned that the information would get back to the Indian authorities.  That statement in my view did not require the RRT to summons Mr Baljit Singh to give evidence.  The RRT had before it the case of the applicant and papers offered by her in support of the new claim.  In my view the RRT was entitled, particularly in the absence of any request even then by the applicant to seek further information from Mr Baljit Singh, to rely on the information then before it.

The RRT is entitled to inform itself of factual information contained in written documents, which is what it did in this case.  Having obtained information in documentary form about Mr Baljit Singh which turned out to be adverse to the applicant, the RRT put the information to the applicant for a response.  This was a proper and fair course to take.

The nature of the power to conduct inquiries and the extent to which the statutory provisions impose an obligation upon the RRT to initiate investigations was considered by a Full Court of this Court in Minister for Immigration and Ethnic Affairs v Singh (1997) FCR 553 at 556-561. In my opinion there is nothing in the remarks of the Full Court which supports the contention of the applicant in this case that the RRT fell under an obligation to subpoena Mr Baljit Singh to give evidence relating to the applicant’s case, particularly in the absence of any request to do so by the applicant.

It is of significance that following the formal hearing on 30 January 1998, on 11 February 1998 a written submission was made on the applicant’s behalf to the RRT which contained further information relating to the activities of Mr Baljit Singh.  On that occasion no statement was offered by the applicant from Mr Baljit Singh and as the RRT observed in its reasons for decision, it remained the case that none of the information advanced by the applicant about Mr Baljit Singh’s activities were endorsed by him.  The opportunity for the applicant to have provided information directly from Mr Baljit Singh was not availed of when the written submission was made.

For these reasons in my opinion the present application fails and it will be dismissed with costs.

I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice von  Doussa

Associate:

Dated:             18 December 1998

Counsel for the Applicant:	Mr M W Clisby
Solicitor for the Applicant:	Gilbert Santini
Counsel for the Respondent:	Ms S J Maharaj
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	18 December 1998
Date of Judgment:	18 December 1998