Kumar, Harjinder v Minister for Immigration and Multicultural Affairs

[1998] FCA 1572

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 326  of   1998

BETWEEN:	HARJINDER KUMAR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:		FINN J
DATE OF ORDER:		3 AUGUST 1998
WHERE MADE:		SYDNEY

THE COURT ORDERS THAT:

The application 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
NEW SOUTH WALES DISTRICT REGISTRY	NG 326 of 1998

BETWEEN:	HARJINDER KUMAR APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	FINN J
DATE:	3 AUGUST 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

The applicant, Harjinder Kumar failed to satisfy the Refugee Review Tribunal (“the Tribunal”) that he was a refugee because he was disbelieved.  The Tribunal expressed its conclusions on the applicant in the following ways:

(i)“I do not accept the applicant as a credible witness.  His evidence contains a number of inconsistencies and contradictions.  I find his claims to be implausible.  The negative assessment of his credibility was reinforced by my observations of his demeanour, especially when pressed on the inconsistencies in his evidence.”

(ii)“I am satisfied that the applicant fabricated the entirety of his claims in the hope of gaining refugee status.”

A significant portion of the Tribunal’s reasons was devoted to its questioning of the applicant concerning inconsistencies in his evidence and his responses thereto.

Mr Kumar now seeks an order of review of the Tribunal’s decision under Part 8 of the Migration Act 1958 (“the Act”). While various grounds were advanced in the original, and then amended, application, only one ground has been prosecuted at the hearing. It is that suggested by the decision in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. It is claimed that the Tribunal failed to observe procedures required to be observed by it: the Act, s 476(1)(a); in that in reviewing the decision it did not act according to substantial justice and the merits of the case: the Act, s 420(2)(b).

Four matters were relied upon to evidence this though the connection of two at least of these to matters procedural is not obvious.  I will consider them individually in turn below.

I gave leave to a migration agent to represent Mr Kumar at the hearing.  He was of some assistance in identifying the precise matters of complaint relied upon by Mr Kumar in the present application.  Beyond that his assistance stopped.

Because of the very small compass within which the matters complained of fall it is unnecessary to provide a narrative of the various matters advanced to make out Mr Kumar’s claim to refugee status and of the Tribunal’s treatment of them.  All I need say by way of prefatory observation is that:

(i)he is an Indian citizen who arrived in Australia on 3 September 1992;

(ii)on 10 December 1992 he lodged an application for refugee status and appended to it was a handwritten document outlining the basis of his claim;

(iii)the application was rejected and on 29 June 1994 the Tribunal affirmed that rejection;  and

(iv)on 14 October 1994 Mr Kumar lodged the present application for a protection visa which was refused both by the delegate of the respondent Minister and by the Tribunal.

The inconsistencies and contradictions to which the Tribunal referred in its credibility finding relate to the differing accounts of events and circumstances that Mr Kumar gave at the various stages in the applications/proceedings referred to above.

The Four Complaints

I will deal with these individually providing such factual setting as is necessary in each instance.

1. The Letter Accompanying the First Application

When Mr Kumar made his first application in 1992 a handwritten letter accompanying it outlined the basis of his claim for refugee status.  The Tribunal relied upon that letter as one of the documents that revealed inconsistencies in significant matters in his account of the circumstances causing his fear of persecution.

The application itself was prepared with the assistance of an interpreter (said later to be a “solicitor”:  see (2) below) who signed a statutory declaration accompanying the application.  The application itself acknowledges that Mr Kumar can speak, read and write English.  I have been asked in submissions to disbelieve this as an expression of the true position, as also to accept that the accompanying letter was prepared by some unnamed third party and not the interpreter.  I have further been asked to accept that the person who prepared the letter did so incorrectly in some matters;  that the errors it contains betray a lack of cultural appreciation of what Mr Kumar was saying to that third party;  and that, accordingly, it should not be relied upon to prove inconsistent statements.

As to the assertion that some unnamed third party prepared the letter and not the interpreter who assisted Mr Kumar with the application, the only evidence of Mr Kumar that seems to bear on this is quite inconsistent with his claim.  The Tribunal noted in its reasons in referring to one of the contradictions in Mr Kumar’s evidence involving the letter, that:

“I pointed out that his first application gave August 1992 as the date for the incident at the Poonam Hotel however, at the DIMA interview this date changed to February 1992.  He said, ‘Person who helped fill it in, [the first application] I can’t find him.  I gave it to him in Punjabi.  I wasn’t very aware of these details in terms of dates and things like that’.”

As I will indicate below, that person was the interpreter/solicitor.  There is simply no evidence to support the assertion now made.

Importantly the Tribunal not only gave Mr Kumar the opportunity to explain what appeared to be errors in the letter in light of his later statements, it also noted the prior opportunities he had for clarification of errors and the use made of them.  And so, for example, it commented:

“In the first application, the policemen who allegedly arrested the applicant, in the second encounter on 31 July 1992, are described as being in plainclothes and three in number.  At the hearing, the applicant said there were four policemen and they were in uniform.  When this conflict was pointed out to him, the applicant said that he had already clarified at the Departmental interview that the adviser had written the wrong thing in the application.  The only mention of a correction in the record of that interview, refers to the date of the hotel party, given as August in the application, being wrong.  The same application stated that the applicant could speak, read and write English.  The files contain numerous hand written letters, in English, from the applicant.  Whilst one could accept some minor errors of detail on matters such as dates in the first application, I do not accept that his solicitor would make an error on such a serious aspect of his evidence, or that an error of this magnitude would go unnoticed by the applicant.”

Mr Kumar had both ample time and opportunity to correct error, misapprehension etc in his letter.  The Tribunal evaluated what he did in that regard and reached a conclusion adverse to him.  For my own part I can find no error nor unfairness in the Tribunal’s use of the letter.  The submission now made entirely lacks substance.

1. The Solicitor-Interpreter

At several places in its reasons the Tribunal referred to the interpreter assisting the applicant when making his first application, as being a solicitor.  Mr Kumar now disputes this and the conclusions the Tribunal drew in consequence of it.

Again such evidence as there is of that person’s actual status is Mr Kumar’s.  The interview summary of his interview with officers of the Department of Immigration and Ethnic Affairs of 3 May 1993 records that:

“The applicant stated that his application was completed by his solicitor.”

The Tribunal was entitled to accept this evidence.  It appears not to have been otherwise controverted.  This complaint is baseless.

1. The Applicant’s Medical Condition

In November 1997 the Tribunal deferred its hearing of Mr Kumar’s application at the request of a psychiatrist to whom Mr Kumar had privately been referred for treatment, so as to allow time (3 weeks) for a report to be provided.  In the event, the hearing did not occur until 5 February 1998.

At that hearing Mr Kumar did not proffer any psychiatric report in aid of his case.  Nonetheless his medical condition at the time was considered.  As noted in the Tribunal’s reasons:

“At the hearing, the applicant said that he was sick, with high blood pressure and continuous pain in the middle of the upper chest, but could proceed with the hearing.  His adviser, Mr Khalsa, indicated that he had only been appointed that morning.  I referred to the psychiatrist’s letter of 24 November 1997 and asked the applicant if he had anything to submit as a result of that assessment.  He said, ‘I have bills.  The psychiatrist said that he would send a report and I will find out about it’.”

The applicant now complains that before the Tribunal could properly rely upon Mr Kumar’s demeanour in making its credibility finding, it ought have inquired of Mr Kumar’s psychiatrist as his psychiatric condition may have been relevant to his demeanour.

The Tribunal was, in my view, perfectly entitled to rely upon Mr Kumar to provide evidence of his own medical condition.  Given that over two months had passed since the psychiatrist’s request for an adjournment to provide the report, it did not in any way act unreasonably in this matter.  It had no duty to inquire in the circumstances.  It raised the matter.  It was assured of Mr Kumar’s fitness to proceed at the time of the hearing notwithstanding his stated indispositions.  It needed do no more.

This attack on the Tribunal is again baseless.

1. Denial of Access to the “Canadian Report”

At the Tribunal Hearing Mr Kumar was represented by a migration agent who had been appointed as his advisor that day.  As noted in the Tribunal’s reasons, the following transpired:

“I asked the adviser if he had any submissions.  He said that he had not had time to take instructions and asked for access to the documents on file which I had raised with the applicant and for copies of the country information.  He said he had loaned his copy of the country information to someone.  I said the country information was available on the Tribunal’s public access medium as was the record of the previous Tribunal decision about which I had questioned the applicant.  I said that I was not prepared to delay the decision while a Freedom of Information request was processed but I would allow one week for submissions.  He said that he had only been appointed to act for the applicant that morning and needed more time than one week to make proper submissions. …

The matters of inconsistency about which I had questioned the applicant were matters of record, that is, the first Delegate’s decision and the first Tribunal decision, and the applicant had received both copies of those documents and tape recordings of those proceedings.  The applicant had been on notice about this hearing for three months.”

The “country information” document referred to was what was described as the Canadian Report.  Of it I would note that at the hearing itself, according to the Tribunal’s reasons, the Member:

“informed the applicant that independent country information available to the Tribunal indicated the current situation in Punjab was peaceful, that the police had been restrained by the government and that only high profile militants were at risk.  (India:  Information from four specialists on the Punjab, The Documentation, Information and Research Branch, Immigration and Refugee Board, Ottawa IND26376. EX of 17 February 1997).”

I can discern no unfairness amounting to a breach of the rules of natural justice in the actions of the Tribunal Member: cf the Act s 476(2)(a); let alone such procedural failure as resulted in the Tribunal not acting according to substantial justice and the merits of the case: the Act, s 420(2)(b); Velmurugu v Minister for Immigration and Ethnic Affairs (1997) 48 ALD 193 at 196; as resulted in a lack of fairness in the way the Tribunal proceeded: Nicula v Minister for Immigration and Multicultural Affairs, unreported, FCA 22 October 1997, Beaumont J; Thevendram v Minister for Immigration and Multicultural Affairs, unreported, FCA, 10 June 1998, Finn J.

Notwithstanding that the country information was not personal information adverse to the applicant:  cf Kioa v West (1985) 159 CLR 550 at 587; I am prepared purely for present purposes to assume without deciding that natural justice would have required that the substance of its burden be put to the applicant if it was materially adverse to the claim that a fear of persecution was objectively well founded notwithstanding that it was publicly available information: see Nicula’s case, above, and the cases referred to therein.  Such in my view occurred sufficiently in the present case, as the Tribunal’s reasons indicate.  It was not necessary to provide Mr Kumar with a copy of the Canadian Report.  And his advisor (who was, apparently, conversant with its contents in any event) is in no better position.  He was appropriately put on notice and was given a week in which to make submissions.

Mr Kumar is in no better position vis-à-vis the relevant file information about which complaint of denial of access is now made.  That complaint focuses upon the first delegate’s decision and the first Tribunal’s decision.  Mr Kumar had earlier, as the Tribunal noted, been supplied with copies of these.  The actual inconsistencies in his evidence they exposed were put directly to him.  He knew precisely what was being put against  him and he was given the opportunity to respond.

The access claim made is in my view an illusory one and is more in the nature of a complaint by the migration agent of an alleged wrong to him, than of any unfairness to Mr Kumar.

Conclusion

This application comes nowhere near reaching the threshold necessary to bring it within the purview of s 476(1)(a) of the Act (via s 420(2)(b)). I would dismiss the application.

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

Associate:

Dated:             3 August 1998

Migration Agent for the Applicant:	Ram Ravi Singh Khalsa
Counsel for the Respondent:	Mr J Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 July 1998
Date of Judgment:	3 August 1998