Kumar v Minister for Immigration and Multicultural Affairs

[2000] FCA 402

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration & Multicultural Affairs [2000] FCA 402

RAVINDER KUMAR, MADHU GUPTA, AAKASH GUPTA AND AKSHAY GUPTA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 344 OF 2000

TAMBERLIN J
SYDNEY
30 AUGUST 2000

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 344 OF 2000

BETWEEN:

RAVINDER KUMAR
FIRST APPLICANT

MADHU GUPTA
SECOND APPLICANT

AAKASH GUPTA
THIRD APPLICANT

AKSHAY GUPTA
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:

TAMBERLIN J

DATE OF ORDER:

30 AUGUST 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

The application is 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
NEW SOUTH WALES DISTRICT REGISTRY	N 344 OF 2000

BETWEEN:

RAVINDER KUMAR
FIRST APPLICANT

MADHU GUPTA
SECOND APPLICANT

AAKASH GUPTA
THIRD APPLICANT

AKSHAY GUPTA
FOURTH APPLICANT

AND:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS
RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	30 AUGUST 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (“the RRT”), constituted by Mr Klintworth, delivered on 15 March 2000 in relation to an application by the first applicant and his family for protection visas.  The facts, legislation and relevant case law are set out in the decision and I will not repeat them on this application. In the final paragraph of the section of the decision headed “Findings and Reasons” the decision maker summarises his inferences and findings in these terms:

   “Because of my problems with the credibility of the applicants, and the fact that they did not use the opportunities they had available to leave India or to not return to India, I am not satisfied that they have a well-founded fear of persecution for a Convention reason, now or in the reasonably foreseeable future, if they return to India.”

2. The decision maker affirmed the decision not to grant protection visas.  In the course of setting out his findings and reasons, the decision maker indicated that he had problems with the credibility of the applicant and his wife and that led him to doubt whether they had a genuine fear of persecution in India.  He refers to a number of circumstances and claims which are made by the applicant and his wife.  In relation to a number of those he makes findings against the applicant and his wife based on questions of credibility and also on circumstances such as their previous ability to leave and willingness to re-enter India.

3. The error which has been alleged is that the Tribunal member erred in not applying the "what if I am wrong?” test.  This “test” has been discussed in some detail in the Full Court decision in Minister forImmigration and Multicultural Affairs v Rajalingam (1999) 93 FCR 220. In particular, at par 67, Sackville J summarises the test applicable in the present case.

4. In speaking of the reasons of the RRT, his Honour said:

   “If a fair reading of the reasons as a whole shows that the RRT itself had "no real doubt" (to use the language in Guo) [that the] claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong.  Reasonable speculation as to whether the applicant had a well-founded fear of persecution does not require a possibility inconsistent with the RRT’s own findings to be pursued.  A "fair reading" of the reasons incorporates the principle, that the RRT’s reasons should receive a “beneficial construction” and should not be “construed minutely and finely with an eye keenly attuned to the perception of error” ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT’s failure to take account of the possibility that the alleged events might have occurred ... If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.” (Emphasis added)

5. The above test is really directed to refine the concept of “real chance” and to the circumstance that in some cases a Tribunal member might only be able, on the material advanced, to form a tentative conclusion, which is not made with confidence, as to the alleged circumstances.  In such a case, it may be appropriate to ask the question as to whether if the facts had been as asserted by the applicant, the decision might in any way be different.  This arises because the exercise is not to make a decision on the basis of probability but rather to decide whether there is a “real chance” that a future event, namely persecution for a Convention reason, might occur.

6. In the present case, on a fair reading of the reasons given by the decision maker as a whole, there is no indication that the decision maker had any significant doubt or hesitation in reaching the findings set out in the decision.  In those circumstances, it seems to me that the decision maker did not err in failing to apply the test claimed to be applicable by the applicants.  Furthermore, I note that the decision to reject the application was not made solely on the basis of credibility but was also made by reference to objective facts and appears to have been based on a combination of these two considerations. 

7. In relation to the question of credibility, I should note the decision maker not only made the findings, but in a number of instances he gave a substantial number of reasons why such a finding was considered to be appropriate; often because of inconsistent assertions at various points of time, or from an inconsistency between the assertions and the applicants’ conduct.  Accordingly, I am not satisfied in the present case that any error has been shown in the decision of the decision maker.  The application should be dismissed with costs and I so order.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin.

Associate:

Dated:             6 September 2000

Counsel for the Applicant:	C Simpson
Solicitor for the Applicant:	Coelho & Coelho
Counsel for the Respondent:	T Reilly
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	30 August 2000
Date of Judgment:	30 August 2000