Passi v Minister for Immigration and Multicultural Affairs

[2001] FCA 1151

FEDERAL COURT OF AUSTRALIA

Passi v Minister for Immigration & Multicultural Affairs [2001] FCA 1151

Migration Act 1958 (Cth) s 476
Federal Court Rules O 32 r 2(1)

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 referred to
Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348 referred to

NAGESH PASSI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
N 965 OF 2001

STONE J
14 AUGUST 2001
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 965 OF 2001

BETWEEN:	NAGESH PASSI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE:	STONE J
DATE OF ORDER:	14 AUGUST 2001
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the application be dismissed;

2.        the applicant 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 965 OF 2001

BETWEEN:	NAGESH PASSI APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE:	STONE J
DATE:	14 AUGUST 2001
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant, a citizen of India, arrived in Australia on a student visa on 13 November 1998. He applied to the respondent (“Minister”) for a protection visa under the Migration Act 1958 (Cth) (“Act”) on 20 March 2001. His application was refused by a delegate of the Minister on 3 April 2001 and that decision was affirmed by the Refugee Review Tribunal (“Tribunal”) on 19 June 2001. On 21 June 2001 the applicant applied to this Court for a review of that decision, although his application did not specify why the applicant was aggrieved by the decision, the grounds of review or the orders sought. The application simply stated that ‘the details will send in a later date’.

   THE APPLICANT’S CLAIMS

   In the protection visa application and supporting statement

2. The situation giving rise to the applicant’s claims arose from the marriage between his sister and a Sikh (referred to in the Tribunal’s reasons and this judgment as ‘G’), who was apparently involved in terrorist activities. After the applicant’s brother attended a meeting of Sikh terrorists with G, he was consequently arrested and tortured on two occasions, once immediately after the meeting and a second time in August 1996. After he was released on the second occasion, the applicant’s brother moved from Banga to New Delhi. In September 1996, the applicant’s sister and G were killed (possibly after being tortured) by the police. In November 1996, the applicant was arrested and asked about the whereabouts of his brother as well as about G. On this occasion, he was hit with a belt and with bamboo sticks.  He was released after six days when his employer paid a 4,000 rupee guarantee. The applicant went to stay with his brother in New Delhi. Six or seven months later, he, his brother and his brother’s wife came to Banga. Apparently, the police were informed of their arrival and the applicant and his brother were arrested. They remained in prison for two to three months, after which their release was arranged by an influential relative.

   At the Tribunal hearing

3. The evidence given at the Tribunal hearing is extensive and need not be repeated in detail in these reasons. Some of the evidence given differed from that in the applicant’s statement in support of his protection visa application. For example:

   ·he stated that his sister was killed in August 1996 (rather than in September);

   ·he claimed that the detention in November 1996 was for a few weeks (rather than six days) and that, while in detention, he was formally charged as a terrorist;

   ·he stated that the visit to Banga with his brother’s family occurred a year (rather than six months) after he went to stay with his brother in New Delhi.

   After the hearing

4. After the hearing, the Tribunal received a copy of the file relating to the applicant’s student visa application. That file contains copies of original salary vouchers relating to the applicant’s employment as a salesman by a company in Banga between 1 November 1993 and 17 March 1998. Information on the file also suggests that the applicant’s sister was, at that time, still alive. The Tribunal sent copies of these documents to the applicant, who was invited to comment as to whether the documents contradicted his claims.

5. The applicant’s adviser responded with a detailed submission about the applicant’s credibility and the current situation in Punjab. In relation to the student visa application, it was submitted that the applicant’s statements regarding his employment and his sister at the time of his student visa application were lies (made in order to obtain a student visa) and that the pay slips were forged.

   THE TRIBUNAL’S DECISION

6. The Tribunal accepted that the applicant is a single Hindu man from Banga in Punjab, India and assessed his claim on this basis.  The Tribunal was not satisfied that the applicant was a credible witness. It noted, citing Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 451 and Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at 348, that a decision-maker should not accept the applicant’s claims uncritically and can reject a claim despite the absence of rebutting evidence. The Tribunal’s rejection of the applicant’s credibility was based on inconsistencies in the evidence, some of which have been mentioned above, as well as differences between the applicant’s evidence and independent country information. In this case, the Tribunal took the view that the inconsistencies in the applicant’s story were not merely the result of poor memory and trauma.

7. The Tribunal did not accept that the applicant’s sister had been killed, because of inconsistent evidence as to the timing of her death and because the applicant’s student visa application had stated that she was still alive in circumstances where he had no reason to lie about this. It did not accept that he had been formally charged with terrorism because this was not mentioned in the protection visa application or the lengthy supporting statement and because the bribe paid was small compared with what would be expected if the applicant had personally been suspected of terrorism.

8. The Tribunal did not accept the applicant’s explanation of the inconsistencies between his statement in his student visa application that he had been continuously employed between 1993 and 1998 and the evidence given in relation to his protection visa regarding moving between different cities. It therefore rejected the applicant’s evidence that he had been in hiding and found that he had been continuously employed, noting that the pay slips provided directly by the employer appeared genuine.

9. The Tribunal rejected the applicants evidence regarding arrest and torture because the evidence was inconsistent and was not supported by independent country information. In particular,

   ·in the light of independent evidence, the Tribunal considered that it was unlikely the police would suspect the applicant, a Hindu, of terrorism in support of Sikh separatism. The only Hindu mentioned in the independent evidence as being detained and questioned regarding Sikh separatism was a prominent human rights activist who was released shortly after being questioned;

   ·the Tribunal considered it implausible that the applicant would continue to be of serious and ongoing interest to the authorities given his only connection with Sikh militancy had been through his sister’s marriage to a man who is now dead;

   ·the Tribunal considered the long period of detention in 1997 to be inconsistent with the fact that the applicant’s only link with Sikh terrorism was through his brother, who was in detention with him, and his brother-in-law, who had already been killed;

   ·the Tribunal rejected the applicant’s claim to be of serious interest to the authorities because, if that had been the case, he would not have been able to obtain a passport in his own name and leave India legally;

   ·the Tribunal rejected the applicant’s claim that he was currently of interest to the Indian authorities because of independent evidence suggesting that the situation in Punjab had stabilised and that the police were only interested in high profile Sikh militants.

10. Finally, the Tribunal stated that, even if it had accepted the applicant’s claims, it would have been satisfied that he could relocate elsewhere in India if he had concerns about his safety in Punjab and New Delhi. In this respect, the Tribunal felt that the applicant’s claim that the search for him would be national was implausible.

11. On these grounds the Tribunal held that the applicant was not a refugee within the meaning of the Convention.

    ORDER FOR REVIEW

12. As noted above, the application for an order of review filed on 21 June 2001 contained no grounds of review or other relevant information. At the hearing today, the applicant did not appear. Ms Warner, the solicitor for the respondent, deposed, by affidavit affirmed on 8 August 2001, that the applicant, who had been held in detention at Villawood Immigration Detention Centre, had escaped on 19 July 2001. Ms Warner told me from the bar table that enquiries since that date had revealed no information concerning the applicant’s whereabouts.  As an additional measure, the applicant was called outside the court but, unsurprisingly, there was no appearance.

13. If a party is absent when a proceeding is called on for trial the Court, under O 32 r 2(1), may adopt one of a number of courses:

    “(a)order that the trial be not had unless the proceeding is again set down for trial, or unless such other steps are taken as the Court may direct;

    (b)adjourn the trial;

    (c)if the party absent is an applicant or cross-claimant dismiss the action or the cross-claim; or

    (d)proceed with the trial generally or so far as concerns any claim for relief in the proceeding.”

14. If the Court decides to proceed with the trial under (d) above, any orders that it makes may be set aside or varied on the application of the party who was absent. Where this occurs the Court may give directions for the further conduct of the proceeding; O 32 r 2(2). 

15. In the circumstances I decided to proceed with the hearing on the basis of the written submissions of the respondent, Ms Warner having indicated that she did not wish to make any further submissions. I have considered those submissions and, in the absence of the applicant, I have also reviewed the Tribunal’s reasons for its decision to see if I can detect any error myself.

16. It is well established that the only grounds of review available to this Court are those mentioned in s 476 of the Act. I have reviewed the Tribunal’s reasons and have set them out in some detail above. It may well be that a differently constituted Tribunal would not have regarded the inconsistencies in the applicant’s claims as being as important as this Tribunal member did. However, even if this were the case, the weight to be attached to evidence given before the Tribunal is within the jurisdiction of the Tribunal, not this Court. I can detect no reviewable error in the Tribunal’s reasons. The application is therefore 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 Stone.

Associate:

Dated:             20 August 2001

Counsel for the Applicant:	No appearance
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	14 August 2001
Date of Judgment:	14 August 2001