Kaur v Minister for Immigration & Multicultural Affairs - [2000] FCA 1401

FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration & Multicultural Affairs [2000] FCA 1401
MIGRATION – decision of Refugee Review Tribunal refusing protection visa – applicant Indian woman of Sikh faith – Tribunal accepted various factual claims – alleged that Tribunal applied Convention test to each factual claim in isolation from totality of evidence – Tribunal applied Convention test to entirety of facts as found – Tribunal found that Sikh women too diverse to constitute a social group – homogeneity amongst members not required to constituted social group – alternative reasoning
Migration Act 1958 (Cth), s 476(1)(e)
Sellamuthu v Minister for Immigration & Multicultural Affairs (1999) 90 FCR 287 referred to
Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 referred to
Tharmalingam v Minister for Immigration & Multicultural Affairs (unreported, Federal Court of Australia, Lindgren J, 19 May 1998) referred to
Islam v Secretary of the Home Department [1999] 2 WLR 105 referred to
Khawar v Minister for Immigration & Multicultural Affairs [1999] FCA 1529 referred to

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 referred to
Minister for Immigration & Multicultural Affairs v Ndege [1999] FCA 783 referred to
SATWINDER PAUL KAUR AND JAISON PREET SINGH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 463 OF 2000
MOORE J
5 OCTOBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 463 OF 2000

BETWEEN:

SATWINDER PAUL KAUR
FIRST APPLICANT

AND:

JAISON PREET SINGH
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MOORE J

DATE OF ORDER:

5 OCTOBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.        The application is dismissed.
2.        The applicants pay the respondent’s 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 463 OF 2000

BETWEEN:

SATWINDER PAUL KAUR
FIRST APPLICANT

AND:

JAISON PREET SINGH
SECOND APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

MOORE J

DATE:

5 OCTOBER 2000

PLACE:

SYDNEY

REASONS FOR JUDGMENT
Introduction

This is an application by Ms Satwinder Paul Kaur ("the applicant") and her ten year old son, Jaison Preet Singh, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) published on 29 March 2000. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant or her son protection visas. A criterion for the grant of such visas is that an applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).
Background
The applicant and her son are citizens of India of the Sikh faith, from the Punjab. They arrived in Australia on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1401
Decision Date: 5 OCTOBER 2000

CaseChat Overview and Summary

The matter before the court was an application for judicial review by Satwinder Paul Kaur and her son, Jaison Preet Singh, against a decision of the Refugee Review Tribunal affirming the refusal of protection visas by the Minister for Immigration and Multicultural Affairs. Kaur and her son, Indian citizens of the Sikh faith, sought protection visas based on their fear of persecution due to their association with Kaur’s husband, who had previously arrived in Australia as a Sikh activist. The Tribunal upheld the delegate’s decision, finding that the applicants did not meet the criteria for refugee status under the Convention Relating to the Status of Refugees.

The primary legal issue before the court was whether the Tribunal's decision was correct and whether the applicants were entitled to protection visas. This required the court to consider the definition of a refugee under the Convention, the meaning of persecution, and the credibility and weight to be given to the applicants' evidence. The court also had to examine whether the Tribunal appropriately assessed the applicants' claims and the relevance of third-party documents suggesting dishonesty in the application.

In its judgment, the court found that the Tribunal had applied the correct legal principles and properly considered the evidence before it. The court noted that while the Tribunal accepted some of Kaur's claims, such as her psychological condition and the police's rudeness, it did not accept other claims, such as her alleged rape being connected to her association with Sikh activists. The court concluded that the Tribunal's findings were supported by the evidence and that there was no basis to interfere with the decision. Therefore, the application for judicial review was dismissed, and the applicants were ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application is dismissed.

2. The applicants pay the respondent’s costs.

Background

Background to the litigation

This is an application by Ms Satwinder Paul Kaur ("the applicant") and her ten year old son, Jaison Preet Singh, for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) published on 29 March 2000. The Tribunal affirmed the decision of a delegate of the Minister for Immigration and Multicultural Affairs (“the Minister”) refusing to grant the applicant or her son protection visas. A criterion for the grant of such visas is that an applicant is a person to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (“the Convention”).Background The applicant and her son are citizens of India of the Sikh faith, from the Punjab. They arrived in Australia on 18 July 1997 and lodged a combined application for protection visas with the Department of Immigration and Multicultural Affairs on 24 December 1997. On 8 April 1998 the applications were refused by a delegate of the Minister, and on 4 May 1998 the applicant sought review of that decision before the Tribunal. Earlier, on 7 February 1996, Mr Narinder Singh, the applicant’s husband and Jaison’s father, had arrived in Australia. He also lodged an application for a protection visa which was determined separately from the combined application. Essentially the applicant claims that she and her son fear persecution because of their association with Mr Singh, who they claim is a high profile Sikh activist.The Tribunal’s reasons The reasons for decision of the Tribunal commenced with a discussion of the relevant legislation and what is comprehended by the definition of “refugee” and by the notion of “persecution” according to the Convention. Reference was made to the judgments of the High Court in Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225 and Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559. The Tribunal then summarised the claims made by the applicant by way of documentary materials provided, oral evidence given, and submissions made to the Tribunal. The Tribunal also considered the relevance of documents, forwarded to the Tribunal by third parties, that suggested that the applicant was being untruthful in her application. However, the Tribunal decided not to take these latter documents into account in reaching its decision. The Tribunal next reviewed a range of general materials concerning the treatment of Sikhs in India, and particularly in the Punjab. Under the heading “Findings and Reasons” the Tribunal accepted various claims made by the applicant. In relation to the applicant herself it was accepted that:· she suffers from a psychological condition which has resulted in her hospitalisation and that she may have attempted to commit suicide on two occasions;· the police came to her home in December 1998 and were rude to her;· she sometimes cooked for members of the Sikh Students Federation (“the SSF”) who came to her home;· in early 1996 she may have been taken to a police station (though it was not accepted that she was questioned about her claimed links to Sikh activists and militants);· on another occasion she was taken to the police station, detained overnight, and raped by two police officers (though it was not accepted that she was taken there with members of the SSF who had been at her home, nor that she was taken there because of her alleged association with Sikh activists or militants).

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

MOORE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MOORE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 463 OF 2000

BETWEEN:	SATWINDER PAUL KAUR FIRST APPLICANT
AND:	JAISON PREET SINGH SECOND APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	5 OCTOBER 2000
WHERE MADE:	SYDNEY

JUDGE:	MOORE J
DATE:	5 OCTOBER 2000
PLACE:	SYDNEY