Kumar v Minister for Immigration & Multicultural Affairs

(2) The decision involved an error of law within the meaning of s 476(1)(e) in that the Tribunal misconstrued (and misapplied) the obligation cast on it by s 420(2)(b) in relation to -

(b) its assessments of their claims in the context of the country information before it;

(c) its failure to put to them the matters contained in Mr Kumar's letter of 9 January 1997 to the Australian Embassy.

(3) The procedures referred to in s 476(1)(a) were not observed in that the procedures required by s 420(2)(b) were not observed. 20 In order to make out the first ground, the applicants by their counsel submitted that (1) the Tribunal's "approach to its assessment of what Mr and Mrs Kumar claimed had 'already happened'" was counter to that approved in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 282-3; (2) Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363 was applicable to a decision to disbelieve an applicant's claim for a protection visa; and (3) the Tribunal "failed to identify the terms of the 'subjective fear' held by each of Mr and Mrs Kumar before proceeding to determine the application". 21 In support of the second and third grounds, the applicants' counsel relied (1) on the failure to apply Briginshaw v Briginshaw before determining to discount the applicants' abortion claim; (2) the failure, so counsel said, to put to Mr and Mrs Kumar the letter of 9 January 1997; and (3) the failure, so counsel said, to ask Mrs Kumar for an explanation as to why the abortion claim had been made "only at appeal stage". (a) The first ground 22 I turn to the matters relied on in support of the first ground. The Minister's power to make a determination as to a person's refugee status is conditional upon the Minister being "satisfied" that a person is a refugee within the definition of refugee set out above. The decision under review in this proceeding is the decision that the Minister and, upon merits review, the Tribunal were not so satisfied. The definition of refugee involves a mixed subjective and objective test. An applicant for refugee status must show (a) subjectively, a fear of persecution based on one of the reasons referred to in Article 1A(2) above; and (b) objectively, that the fear is a "well-founded fear": see MIEA v Wu Shan Liang (1996) 185 CLR 259 at 263 and Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 575-576. According to the joint judgment in Guo's Case, at 577: A fear is 'well-founded' when there is a real substantial basis for it. As [Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379] shows, a substantial basis for a fear may exist even though there is far less than a 50% chance that the object of the fear will eventuate. But no fear can be well-founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. 23 The applicants' counsel submitted that the Tribunal failed to identify the fear subjectively held by Mr and Mrs Kumar. I reject that submission. In reasons for decision, the Tribunal referred to the claims made by Mr Kumar in his application of 23 July 1997 and accurately summarised the terms of the evidence later given to it by the applicants. The transcript of the hearing before the Tribunal on 24 March 1998 records that both Mr and Mrs Kumar were specifically asked "what is it you fear if you return to Fiji?" The following exchange is recorded with Mr Kumar: Tribunal: So what is it that you fear if you return to Fiji? Mr Kumar: Because when my wife was pregnant she went into hospital and there they told her to abort the child, not having the babies. Tribunal: Why? Mr Kumar: Because they say she has a baby at that time and so she can overpopulate the Indo-Fijians in population over the Fijians of Fiji. … It was very early to [be] having babies at that time. Tribunal: So when did this occur? Mr Kumar: During, she went to the first visit and they told her … Tribunal: When she went where? Mr Kumar: To the hospital, her first visit to the hospital. Tribunal: What year was that? What month was that? Mr Kumar: In '97. Tribunal: So did she have an abortion? Mr Kumar: No, because it was our first. We didn't want to abort it. Tribunal: Mr Kumar, can you just make sure you speak up a little bit because I need to hear clearly and it also needs to go onto the tape. Thank you. So who tried to persuade her to have an abortion? Mr Kumar: The sister nurse who was there. Tribunal: So when she said she wasn't going to have one, what happened? Mr Kumar: Well they told my wife to go back and decide and come [a] second time. She went there again. They told her - they said, "Why you come back again so soon and have this baby?" Tribunal: So what happened then? Mr Kumar: And that time they came to me and told me … appointment together and to the hospital and said the sister … that we want the baby and we want to see the doctor … When we went to the doctor he said whatever she said he was doing because she is right, whatever she says is right. Tribunal: So how many weeks pregnant was your wife? Mr Kumar: Almost five months at that time. 24 The exchange between Mrs Kumar and the Tribunal on this point was as follows: Tribunal: Can you tell me what it is that you fear if you return to Fiji? Mrs Kumar: When I was in Fiji and I was pregnant I went to the nurse. There was a Fijian nurse and the first time when I visited her she told me that, "You can't have this baby and if you have this baby now and another every year, you will be having one baby and in another 35 years you will be having 15 or 16 babies so you will be overpopulating the Fiji's population so you have to abandon this child." So she told me, "You go home and talk to your husband and come back," and then I came back and told my husband and we decided to keep this child because in our religion it's a sin to abandon the child. So we had to keep this child. The second time when I went to the Fijian sister, then she told me the same thing. Then I came again back home and I told my husband and when me and my husband decided to go again and my husband wanted to talk to the doctor. So when we went there and my husband told the sister that we wanted to see the doctor and when we talked to the doctor he refused to hear us so he told us that, "You go and listen to the nurse, what she says." 25 The Tribunal plainly had regard to the Kumars' claimed fear, and to the evidence given by them as to their state of mind, before reaching the conclusions that the fear was not "a major factor in their leaving Fiji" and that they had "embellished" their story for the purpose of their protection visa applications. Whilst the Tribunal accepted that a nursing sister may have raised "birth control and family planning" and, presumably, the issue of abortion, the Tribunal was not satisfied that anything more had occurred and, accordingly, was not satisfied that the Kumars held any genuine fear of persecution of the kind claimed by them. 26 Having found that Mr and Mrs Kumar had embellished their story for the purposes of their protection visa applications and having rejected the substance of their claims without any evident hesitation, was there any need to ask "what if I am wrong?". The Tribunal expressed no uncertainty about its conclusions and, in consequence, there was no real call for it to consider that further question. In any event, in considering hospital practice in Fiji, the Tribunal entered upon consideration of the question in so far as it was reasonable for it to do so, having regard to the conclusions it had reached and its confidence in reaching them. Cf MIEA v Guo (1997) 144 ALR 567 at 579-580 and Uma Chand v Minister for Immigration and Ethnic Affairs (unreported, von Doussa, Moore & Sackville JJ, 7 November 1997). 27 I also reject the submission that, because the Tribunal did not ask Mrs Kumar why the abortion claim was not made until "appeal stage", its confidence in its conclusions was misplaced and erroneously held. I deal with counsel's submission about the lateness of the abortion claim below. 28 Finally, I do not accept counsel's submission that, in assessing Mr and Mrs Kumar's abortion claim, the Tribunal adopted an approach which was contrary to that approved by authority. Before turning to the question of "well-founded fear", the Tribunal was entitled to weigh the material before it and to make findings about the Kumars' account of what had happened to them in Fiji: See MIEA v Guo (1997) 144 ALR 567 at 579. Broadly speaking, the Tribunal took into account information about Fiji, the extent of that information and its reliability, whether or not the Kumars' stories were plausible, as well as their delay in making the claim. The Tribunal had, as it clearly recognised, a good deal of reliable information about Fiji before it, including documents and publications of the Commonwealth Department of Foreign Affairs and Trade, US Department of State Country Reports on Human Rights Practices up to 1997, newspaper reports and the like. That material enabled it to assess the plausibility of the applicants' claims. Their claims were found to be implausible, at least in part because there was no support for them in the country information about Fiji before the Tribunal. That information was detailed enough and derived from what might reasonably be regarded as reliable sources. Thus, the Tribunal's findings that there was no evidence in the country information to support a claim that there was any policy of compulsory abortion on ethnic grounds, and that abortion, especially late abortion, was condoned in Fijian hospitals, were adverse to the applicants' claim. 29 The Tribunal also formed the view, as I think it was entitled to do, that, having regard to Fijian society, Mr Kumar's suggestion, in evidence, that his wife was unduly young to bear a child was ill-founded and that, having regard to their ability to travel to Australia, there was no basis for accepting their adviser's submission that they did not have the resources to go elsewhere in Fiji to seek medical attention. The country information regarding the legal and political situation in Fiji also led the Tribunal to reject Mr Kumar's claim that a local Member of Parliament had declined to assist him. The last finding was not, as the respondent noted, contested by the Kumars on appeal. Finally, the Tribunal took into account the undisputed fact that the abortion claim was not raised prior to 23 July 1997, when the applicants sought merits review. 30 The applicants' counsel submitted that the errors of law committed by the Tribunal in assessing the applicants' testimony were, first, to take into account the lateness of the abortion claim without putting that specific matter to Mrs Kumar and, secondly, in not adopting a Briginshaw v Briginshaw or like standard in evaluating the applicants' testimony. 31 As to the first matter, the transcript discloses that, having heard submissions from the applicants' legal adviser, the Tribunal raised a couple of additional matters towards the end of the hearing. The first was raised by a question directed to Mr Kumar and is expressed in the following exchange: Tribunal: Mr Kumar, there is one other question I would like to ask you and that is, the issue about the pregnancy was raised, not in your initial application, it was raised in the application for review. Why was it not raised originally? There was nothing in your original application which spoke about your wife being asked to have an abortion. Do you know why you didn't raise it in the initial application? Mr Kumar: It should have been there. Tribunal: Well, I had looked carefully for that and I can't see anything in your original applications at all that referred to that and your wife's application had specifically said that she adopted your claims as her own. You did refer to crime in Fiji but I just don't - did you want to say something [Legal Adviser]? Legal Adviser: No, in fairness to this applicant, this is all what I could say because I don't have the opportunity of seeing the application. Now, when he came to see me very late they did constantly refer this to have been their problem and that is what they told the original solicitor. Probably he is also a gentlemen from Fiji and that was when I very clearly looked at the decision to find out whether that issue was raised. That issue was not addressed. So the applicants always maintained that from the time they came, that they have … about this ordeal to them, something that can be seen in the … . The parties accept that Mrs Kumar was present during the exchange. 32 It is submitted by counsel for the applicants that, before taking the lateness of the abortion claim into account, the Tribunal was obliged to ask Mrs Kumar for an explanation as to the delay in making the claim. Applicants' counsel submitted that she alone had first-hand knowledge of what had been said by the nursing sister to her and the nursing sister's statements must have caused her particular distress. Let the truth of those two propositions be assumed. They do not advance the applicants' case, for the question is not whether the Tribunal was obliged to afford Mrs Kumar an opportunity to tell the Tribunal in her own words what had transpired when she consulted the nurse. That opportunity had, in any event, been given. Rather, the question raised by the applicants is whether the Tribunal erred in not specifically asking Mrs Kumar why it was that the original application for refugee status made in April 1997 did not make the abortion claim. 33 It is plain enough why the Tribunal addressed its question about the matter to Mr Kumar. His application, in its original form and at the appeal stage, was presented as the "lead" application, Mrs Kumar having done no more than adopt the matters set out by him. In consequence, it might reasonably be inferred that Mr Kumar would know more than, or at least as much as, Mrs Kumar about why the applications for refugee status were originally presented without reference to the abortion matter. The applicants were, moreover, legally represented at all times and the Tribunal gave their adviser an opportunity to address all issues. There is nothing to indicate that Mrs Kumar, who was present at the time the above exchange took place, desired to add to what had been said. In those circumstances, I reject the submission that the Tribunal erred in not addressing any question about the lateness of the claim to Mrs Kumar. In any event, the lateness of the abortion claim was, as the respondent's counsel said, only one of the numerous matters which led the Tribunal to conclude that the applicants had embellished their accounts for the purposes of their refugee status applications. 34 An attack was also made by the applicants' counsel on the Tribunal's approach to the evidence given by Mr and Mrs Kumar which, so counsel said, was improperly "brushed aside". Counsel for the applicants submitted in written submissions, augmented at the hearing, that: [T]he test of "reasonable satisfaction" propounded by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363 should be the guiding principle in any decision by a tribunal to discredit or discount particular claims made by an applicant. This is particularly so given the "… gravity of the consequences flowing from a particular finding" [at 362]; the ultimate consequence of a wrong finding on critical facts in issue by a tribunal determining an application for a protection visa is, potentially, death following an applicant's return to the place from which he or she has fled. 35 I reject this submission. First, there is no general rule as to the proper approach to decision-making in the administrative context. The authorities make it plain that there is a "whole range of possible approaches to decision-making", the correctness of any one approach depending on the circumstances of the particular case: See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 282; also John Meadows & Sornawathy Meadows v Minister for Immigration and Multicultural Affairs (unreported, Einfield, von Doussa and Merkel JJ, 23 December 1998) especially at p 12 per Einfield J. Secondly, the observations of Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-3 concern the satisfaction of facts on the balance of probabilities in civil proceedings. (The same may be said of the observations in Cornwell v Commissioner of Australian Federal Police (1990) 24 FCR 544 at 556, to which I was referred.) The satisfaction of proof of persuasion on "the balance of probabilities" is, as was said in the joint judgment in Wu's Case (1996) 185 CLR 259 at 282, "borrowed from the universe of discourse which has civil litigation as its subject". In the context of administrative decision-making, it is of little assistance. 36 In any event, the submission invites the Court to assume something akin to the approach held in Guo's Case, at 578, to be erroneous. It was wrong, the Court said in Guo, to begin with the hypothesis that there is a real chance of persecution for a Convention reason, examine whether the facts point to that hypothesis and, if so, then to examine whether it is negated by other compelling facts. Likewise, it would be wrong, it seems to me, to adopt an approach to the enquiry similarly tending towards acceptance of an applicants' claim (just as it would be wrong to accept an approach tending towards rejection). 37 There was, in my view, nothing untoward about the Tribunal's assessment of the accounts given by Mr and Mrs Kumar. It was part of the Tribunal's role to evaluate all the material before it, including the evidence given at the hearing and, having done so, to make such findings of fact as were necessarily or appropriately to be made in reaching its ultimate decision. In a case such as this, the applicants' claims and the evidence fell to be evaluated by reference, chiefly, to information about Fiji in the Tribunal's possession. 38 It might be said that some of the evidence given by the applicants at the hearing before the Tribunal fell short of making out their claim for well-founded fear of persecution in any event. Be that as it may, the applicants' claims were, plainly enough, not supported by the country information before the Tribunal. In resolving a conflict in the material before it, the Tribunal is entitled to attribute greater weight to one piece of evidence as against another, and to act on its own opinion that one version of the facts is more probable than another. See MIEA v Wu Shan Liang (1996) 185 CLR 259 at 281 and Uma Chand v MIEA, referred to above. It was, therefore, open to the Tribunal to attribute more weight to the country information before it than to the applicants' evidence and it did so on rational grounds. If the Tribunal erred in rejecting the applicants' account of what had happened in Fiji, it did not commit any error of law which is reviewable by this Court. (b) Second and third grounds 39 I turn now to the second and third grounds relied on by the applicants' counsel. As I have already said, the Tribunal did not err in failing to ask Mrs Kumar specifically for an explanation about the delay in making the abortion claim. I put that matter to one side. There remains only the question whether the Tribunal erred in failing to put to Mr and Mrs Kumar the contents of the letter of 9 January 1997 sent by Mr Kumar to the Australian Embassy in Suva. 40 The Tribunal did not refer to the letter in the course of the hearing and no question was asked about the circumstances in which it was written. It is accepted by the parties that Mr Kumar wrote it for the purpose of obtaining visitor visas for himself and his wife. The applicants' counsel submitted that, having regard to that fact and that the letter was not written for the purpose of seeking refugee status, the Tribunal erred in relying on the letter to the detriment of the applicants without first putting its contents to them. The point made by the applicants' counsel was that Mr Kumar simply would not have known that the Tribunal had the letter in its possession for the purpose of deciding the protection visa applications. 41 It seems to me, however, that the 9 January letter was not relied on in any material way by the Tribunal. The letter is referred to in its reasons as part of the narrative of the applicants' "claims and evidence" (to adopt the language of the Tribunal). The letter is not mentioned under the heading "findings and reasons". The letter is referred to immediately after a summary of the applicants' evidence at the hearing as to why they came to Australia. The Tribunal wrote: [Mr Kumar] indicated that they had originally intended to come to Australia only until the child was born, then return to Fiji, but they found life in Australia very peaceful and wanted to stay here. … [Mrs Kumar] indicated that they had always intended to stay in Australia when they applied to come here. They felt they could have a good life for their children here. 42 That was, I accept, a fair summary of the evidence given, although the transcript (and, so I was informed, the relevant tape) was less than completely clear. As the respondent's counsel submitted, the gist of the letter (or that part of it which might have been used against Mr Kumar) was also contained in the evidence given by him at the hearing. In my view, the gist of the letter was sufficiently explored by the Tribunal at the hearing, especially as the Tribunal specifically asked each applicant about his or her intention in leaving Fiji and coming to Australia. An error of law is not committed because a tribunal fails to put to an applicant or a witness every item of material, every consideration, or every possible adverse inference. See, for example, Gurjit Singh v Minister for Immigration and Multicultural Affairs (unreported, Tamberlin J, 14 November 1997) and Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347. No relevant error of law was committed in this case. 43 It should be borne in mind that Mr Kumar was not only the author of the letter but had also supplied it to departmental officers in Suva for the purpose of gaining entry to and remaining in Australia, albeit with visitor visa status, and that that purpose was not unrelated to the matters under consideration by the Tribunal. Further, it had been made plain in Tribunal (and departmental) correspondence that the decision-maker had possession of the whole of the relevant file. The applicants were, as I have already said, assisted by a legal adviser at all material times and, because of the manner in which the Tribunal conducted the hearing, it would have been open to their then legal adviser to have sought to augment at the hearing the answers given by them in response to the Tribunal's questions about their intentions on leaving Fiji. The adviser had, presumably, taken instructions on the matter before the hearing began, and would have been able to do so. 44 Bearing in mind the above considerations, I do not think the Tribunal erred in not specifically drawing the applicants' attention to Mr Kumar's letter of January 1997. I therefore reject the second and third grounds of the application. 45 In view of the conclusions I have reached, it is unnecessary for me to say anything about the respondent's submission that the decisions in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 and Sun Zhan Qui v Minister for Immigration and Ethnic Affairs (1997) 151 ALR 505 are wrongly decided. For the above reasons, I would dismiss the application. I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate: Dated: 26 February 1999 Counsel for the Applicants: Mr R Appudurai

Solicitor for the Respondent: Australian Government Solicitor