Kaur v Minister for Immigration and Multicultural Affairs

[2001] FCA 633

FEDERAL COURT OF AUSTRALIA

Kaur v Minister for Immigration and Multicultural Affairs [2001] FCA 633

IMMIGRATION – Refugees – application to review decision of Refugee Review Tribunal – whether Tribunal erred in making adverse findings of credit – whether mistake of fact made by the Tribunal sufficient to remit matter back to Refugee Review Tribunal

Migration Act 1958 (Cth) ss 430(1), 476(1)(a), 476(1)(e)

Abebe v The Commonwealth (1999) 197 CLR 510 followed
Re The Minister for Immigration and Multicultural Affairs:  ex parte Faustin Epeabaka [2001] HCA 23 followed

PARVINDER KAUR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NO S 19 OF 2000

O’LOUGHLIN J
ADELAIDE
31 MAY 2001

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	S 19 OF 2000

BETWEEN:	PARVINDER KAUR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	O’LOUGHLIN J
DATE OF ORDER:	31 MAY 2001
WHERE MADE:	ADELAIDE

THE COURT ORDERS THAT:

The application 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	S 19 OF 2000

BETWEEN:	PARVINDER KAUR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	O’LOUGHLIN J
DATE:	31 MAY 2001
PLACE:	ADELAIDE

REASONS FOR JUDGMENT

1. The applicant in this matter is a young Sikh woman,  Ms Parvinder Kaur, who is aged twenty-three.  She arrived in Australia over five years ago on 30 November 1995 and shortly thereafter lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs.  That application was unsuccessful, as was her subsequent application for review before the Refugee Review Tribunal (“the Tribunal”).  She has now applied to this Court for an order of review of the Tribunal’s adverse decision.  Upon the hearing of her application she was unrepresented but was assisted by her uncle, Jaswinder Singh, and a Punjabi interpreter.  On the day before the hearing, an amended application for an order of review was filed in Court on her behalf.  The document had obviously been prepared by a person who had some knowledge of legal form and procedure but, on the other hand, the contents of the document revealed that the author knew little about the provisions of the Migration Act 1958 (Cth) (“the Act”). For example, the amended application referred to a denial of natural justice and a failure to take into account relevant considerations. Neither of those matters are grounds available in judicially reviewable proceedings under the Act.

2. The basis of Ms Parvinder Kaur’s claim for refugee status centred upon her claim that she worked as a contact point in India for transmitting messages to and from her uncle, Jaswinder Singh, who was the organising secretary in Australia of the Australian branch of the International Sikh Youth Federation (“the Federation”).  She claimed that her involvement in the workings of the Federation made her a target of the security forces in India.  She gave evidence before the Tribunal that she had been arrested in 1994 and during the period of her detention she had been subjected to abusive language with threats to kill her if she did not truthfully answer the questions that were asked of her.  She said that she was not only abused but that she was also physically slapped.  However, on the other hand she, and her friends who had been arrested at the same time, were released on the same night with a warning.  She claimed before the Tribunal that her work with the Federation has now placed her at risk and she fears that if she returns to India the police or the paramilitary forces will kill her or detain her under draconian anti-terrorism laws.  She also fears that she would be tortured and imprisoned for the rest of her life.

3. Whilst the Tribunal accepted fundamental parts of Ms Parvinder Kaur’s evidence it nevertheless concluded that in some areas she had not been truthful.  The Tribunal identified five areas in the material that was before it which constituted inconsistencies in her evidence.  The Tribunal reviewed the information that was contained in her original application together with the additional information that had been included in a document called “Appeal Submission”.  That document had been lodged with the Tribunal on 8 December 1999, the day before the hearing of her application in the Tribunal.  The Tribunal compared the information in the application and the appeal submission with the evidence given by Ms Parvinder Kaur during the course of the hearing.

4. The first of inconsistencies related to her evidence of a second occasion when she was arrested in 1994.  She said in evidence that she had been arrested, beaten until she was unconscious, and detained for six days.  She also said that she feared that she had been indecently assaulted on that occasion while she was unconscious.  That incident had not been recorded in either her original application nor in her appeal submission.  The Tribunal said that it believed that she had fabricated this claim at the hearing to enhance her application for refugee status.  It concluded that her claims that she had been arrested on this occasion, detained and beaten until she was unconscious and possibly indecently assaulted, were not true.

5. The second area of her evidence that cast a doubt on her veracity related to the circumstances under which her brother had his hand amputated.  In her evidence she claimed that the brother’s hand had been mutilated by the police and that the police had prevented remedial treatment, insisting that the authorities amputate the hand.  Once more the Tribunal doubted her evidence because of her failure to mention that incident in both her original application and her appeal submission.

6. The third matter dealt with a letter which had been provided by an advocate in India who stated that he had written the letter to Ms Parvinder Kaur at the request of her father.  The Tribunal found that it was not consistent that such a letter (which was dated 19 November 1999) would have been forwarded to her, allegedly at the request of her father, when she had said in evidence that he was an alcoholic and a invalid with mental problems with whom she had had little or no contact.

7. The fourth area of concern to the Tribunal dealt with an affidavit from the village headman who stated that police had taken over the applicant’s house since 29 June 1997.  Ms Parvinder Kaur had not previously made this claim.  She had told the Tribunal that no one was living in the house.

8. The fifth and final matter related to the contents of the letter from the advocate.  It stated in part that there was an outstanding criminal charge against Ms Parvinder Kaur under certain sections of the Indian Penal Code which were identified in the letter.  The Tribunal said that it had “no hesitation in dismissing the contents of the advocate’s letter as being unreliable”.  The Tribunal’s reasons for coming to that conclusion included the fact that Ms Parvinder Kaur had never identified herself as a “proclaimed offender” with outstanding criminal charges against her under Indian legislation.  In addition, the Tribunal took time to examine the sections of the Indian Penal Code that had been nominated by the advocate in his letter and found that they related to punishment for harbouring offenders, including those who had escaped from custody.  As the Tribunal noted, Ms Parvinder Kaur had never made any claim at any stage of her application that she was wanted by the police for harbouring an offender.

9. With all these inconsistencies, it is understandable that the Tribunal found that it could not rely upon her evidence; that, in turn, led to the conclusion that there would not be a real chance of her being persecuted for reason of a political opinion which might be imputed to her because of her family’s connection with her uncle or with the Federation.

10. One must be careful not to dismiss out of hand an application for refugee status merely because of the presence of some minor inconsistencies in an applicant’s presentation.  As Gummow and Hayne JJ said in Abebe v The Commonwealth (1999) 197 CLR 510 at 577-578 [191:

    “… the fact that an applicant for refugee status may yield to temptation to embroider an account of his or her history is hardly surprising.  It is necessary always to bear in mind that an applicant for refugee status is, on one view of events, engaged in an often desperate battle for freedom, if not life itself.”

    Those remarks were quoted with approval in the joint judgment of Gleeson CJ and McHugh Gummow and Hayne JJ in Re The Minister for Immigration and Multicultural Affairs:  ex parte Faustin Epeabaka [2001] HCA 23 at [32-33] where their Honours noted that there was a difficulty that confronted the Refugee Review Tribunal in the execution of its tasks. However the enormity of the inconsistencies in Ms Parvinder Kaur’s presentation – particularly the first two matters – cannot be swept aside. Her failure to mention an arrest and detention for six days and her failure to mention the amputation of her brother’s hand were huge discrepancies which could not be classified as “yield[ing] to temptation to embroider and account of … her history …”

11. I turn briefly to the contents of the amended application for an order of review. As I have said earlier, the author seems to have had some legal knowledge but insufficient awareness of the provisions of the Migration Act. The first ground of the application was said to be based on a failure by the Tribunal to observe the requirements of pars 430(1)(c) and (d). Those provisions require the Tribunal, when making its decision on a review, to prepare a written statement that:

    “(c)     sets out the findings on any material question of fact; and

    (d)refers to the evidence or any other material on which the findings of fact were based.”

12. Having made the assertion, the author of the amended application failed to identify where within the decision that failure of those failures have occurred.  For my part, having read the reasons of the decision I have been unable to find any breach of either of those provisions.

13. The next ground in support of the application was the supposed failure to take into account relevant considerations which, as I have said, is not an available ground for judicial review under the Migration Act. It was then alleged that the Tribunal had not acted “according to substantial justice in the merits of the case”. Once again the author failed to identify how or in what manner the Tribunal failed to accord substantial justice. The next ground alleged that the Tribunal exercised a power that was not authorised by the Migration Act. On this occasion the allegation was particularised. It was claimed that the Tribunal had made an error in the date of the first arrest of the applicant. Counsel for the Minister acknowledged that the Tribunal had made such a mistake by stating that she was first arrested on 6 April 1994 when, in fact, the correct date was 6 January 1994. This mistake occurred when the Tribunal was discussing four reasons why it rejected the contents of the advocate’s letter. The mistaken date was one of those reasons. Taken in isolation this mistake, and the significance that the Tribunal attached to the mistake, might have been sufficient to cause concern so that the Court would remit the matter back to the Tribunal for further consideration. But there were other compelling reasons for rejecting the advocate’s letter; in particular, the reason that was firstly given by the Tribunal was enough to dismiss the contents of the letter as a fabrication. The Tribunal said:

    “Firstly, the applicant has made no mention previously that she is a “proclaimed offender” with outstanding criminal charges against her under the Indian Penal Code and the TADA, even though the letter from the advocate specifically states that she is already aware of this.  She did not raise this issue in her original claims, in her sessions with the psychologist, her appeal Submission or at the hearing.  It is completely implausible that the applicant would fail to mention at any of these stages a matter which would be so strongly supportive of her case, if she had indeed been charged as stated in the advocate’s letter.”

14. In my opinion, this mistake did not affect the Tribunal’s reasons in any material respect and in particular it is incorrect to say, as was alleged in the amended application, that the incorrect date was used “to make an adverse finding about the applicant’s credibility”.

15. I do not consider that it is necessary to set out, seriatim, the remaining grounds in support of the amended application.  None of them has identified any error of importance in the Tribunal’s reasons.

16. This application must be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O’Loughlin.

Associate:

Dated:             31 May 2001

The Applicant appeared in person:
Counsel for the Respondent:	Ms Sashi Maharaj
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	9 May 2001
Date of Judgment:	31 May 2001