Kumar v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|1998-03-20|Before: Tamberlin J, Mansfield J

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 23 December 1999 affirming a decision of a delegate of the respondent refusing to grant to the applicant a protection visa under the Migration Act 1958 (Cth) ("the Act"). 2 To be eligible for that visa, the applicant had to satisfy the delegate of the respondent, and on review the Tribunal, that he is a person to whom Australia owes 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"): s 65(1)(a) and s 36(2) of the Act. 3 In practical terms, that meant that the delegate of the respondent, and on review the Tribunal, had to be satisfied that the applicant was a refugee as defined in Article 1A(2) of the Convention. Article 1A(2) of the Convention defines a refugee as any person who:

"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; …" 4 The applicant is an Indian citizen, born in the Punjab in December 1971. He is of the Hindu religion. He completed his schooling in 1988. In his application for the protection visa, on 24 April 1996, and in submissions to the delegate of the respondent made on 14 May 1996 and 2 October 1997, and in his application for review to the Tribunal in December 1997, the applicant claimed that he was being persecuted because he was a Hindu in a Sikh dominated area of India. He asserted that Hindus were a disadvantaged and powerless minority in that region, and received no protection from the authorities. He claimed that he could not relocate elsewhere within India because he was relatively unskilled, was from a poor rural village and had no family or other resources to support him if he were obliged to move. 5 It was that claim which the delegate of the respondent on 21 November 1997 rejected. 6 On 28 October 1999, the applicant entirely reformulated the basis of his claim to be a refugee. He acknowledged that his earlier claims were untrue. He said that he had made those claims through fear of other persons of Indian origin in Australia. 7 The claims made to the Tribunal (over three and a half years after his visa application was first made, and after his arrival in Australia) were that he was a member of the Dalit or untouchable caste in India, and that he had been a general secretary of a branch of the Dalit Sena political party involved in political activities to improve the position of Dalits within India. Consequently, as the Tribunal perceived it, his claim was made because of his membership of a particular social group and because of his political beliefs. 8 He then asserted to the Tribunal that he had been arrested many times, but did not give any particular occasion of arrest and said he could not remember a particular occasion because there had been so many occasions. At the hearing he described one particular occasion. He had been arrested for demonstrating for rights of Dalits. He claimed that the Indian police were opposed to the Dalit Sena party, and the arrests were made because the police made or accepted many false criminal charges against persons active in the Dalit Sena party, including himself. He also claimed that many false criminal charges were still pending against him. He referred the Tribunal to statistics showing the extent to which crimes against Dalits were committed, including in the period 1994-1999, motivated by attacks from the Hindu Shiv Sena and the Bajrang Dal political parties. He claimed that his brother had been killed by a Shiv Sena terrorist in 1986. He provided information of crimes against, and oppression of, Dalits up to 1999. 9 The applicant enlarged upon those claims at the hearing before the Tribunal on 18 November 1999. The applicant told the Tribunal that he was a Dalit of the sub-caste Chamar, the group who deal in leather, but had never dealt in leather himself. From the age of fifteen, in 1986, he started community work to promote awareness of the Dalit cause. He was financially supported by his father, who was an assistant manager of the Life Insurance Commission. His activities as a member of Dalit Sena from 1986 included organising rallies to promote the rights of Dalits and to protest against crimes and assaults against Dalits. He organised "so many it was hard to remember" any particular occasion. He claimed to have been arrested many times on false allegations by the Shiv Sena party. In particular, he gave evidence of having been arrested in June 1988 and beaten for allegedly molesting a young girl. He was released without charge after four or five days. He also claimed that in mid 1994 he had been falsely accused of murder, and so had gone into hiding for one and a half years until he managed to escape to Australia. He had bribed officials to get his passport, although it was issued in his own name and with his correct personal details. 10 The Tribunal found that the applicant was not a credible witness. It accepted that he had made up the claim that, as a Hindu in the Punjab, he was subject to persecution. It was not satisfied that he had made up that story because of fear of other Indians in Australia, and gave reasons for that conclusion. It regarded the new claims which he made in October 1999 for the first time as having been in response to the rejection of his initial claims by the delegate of the respondent, and so as having some significance to the assessment of the reliability of those new claims. It then separately addressed those new claims. 11 The Tribunal accepted that the applicant may be a Dalit. It also accepted that there is still discrimination against Dalits in some areas in India, including class related violence especially in the rural areas of Bihar and Uttar Pradesh. However, the evidence before the Tribunal was that not all Dalits are subject to persecution, and indeed some have attained high political and other office. It therefore accepted that the applicant as a Dalit may have encountered some discrimination in his life, but it did not accept that that level of discrimination amounted to persecution within the meaning of the Convention. It noted that he came from a moderately well off family, that his father had a good job, that he had received schooling to Year 12, that the Punjab was not an area of especial significance for discrimination against Dalits, and that the applicant did not himself claim to have been persecuted merely by reason of his membership of the Dalit caste. It also noted that the caste system was disappearing with urbanisation in India. It did not accept that his brother's death in 1986 was connected to his brother having been a Dalit. 12 The Tribunal also concluded that in any event the applicant could reasonably be expected to relocate to an urban area within India having regard to his age, his level of education, and his demonstrated ability to live independently (as he had done in Australia for some time since his arrival). It therefore concluded that he could reasonably be expected to relocate to another area of India if, where he lived, he was subject to persecution by reason of his membership of the Dalit caste: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 per Black CJ at 442. 13 The Tribunal separately addressed the applicant's claim that he was subject to persecution because of his political activity as a member of the Dalit Sena party. After referring to the applicant's evidence on that aspect of his claim, it concluded:

"The applicant did not show the familiarity with the party political issues facing Dalits which the Tribunal would have expected of an office holder of the party and his version of the political alliance of the Dalit Sena movement conflicts with the independent information above about Kanshi Ram [who he claimed to be the national leader of the Dalit Sena movement] and the Bahujan Samarj. The Tribunal therefore finds that it is unlikely that the applicant ever held the office of General Secretary in the Dalit Sena movement as he has claimed. The applicant has claimed that he is regarded by the authorities as an anti-government activist because of his role in organising demonstrations and rallies and raising the consciousness of the Dalit people as part of his work for the Dalit Sena party. The Tribunal considers that the applicant's level of knowledge of party political matters would have been greater than he was able to demonstrate if he had been an organiser and activist as he had claimed, and also considers that the applicant's recollection of the numerous rallies and demonstrations he claims to have organised over a ten year period would have been far clearer than it was at the hearing if he had actually undertaken such work for the Dalit Sena party. The Tribunal finds that the applicant was not an office holder nor was he an activist and organiser for the Dalit Sena party as he has claimed." 14 It positively rejected his claims of having been arrested and tortured in June 1998 for allegedly molesting a girl, and of having been falsely accused of committing a murder in mid 1994. It found that it would not have been possible for the applicant to have obtained his passport and to have left India in the way he did, whilst he was supposedly in hiding to avoid being arrested for murder, simply by paying bribes. It found that he was not charged with murder, that he did not go into hiding to avoid being arrested on a false charge of murder, and that he left India legally and without hindrance from the authorities. 15 It concluded that, because he had not undertaken the political activities as he claimed or been persecuted because of such activities, he did not face a real chance of being persecuted for those activities in the foreseeable future if he should return to India. 16 There was only one ground of review argued on the application. It was that the Tribunal had failed to observe procedures required by the Act to be observed in connection with the making of the decision: s 476(1)(a). The relevant procedure, as identified was that specified in s 425(1) of the Act in the following terms:

"The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review." 17 Although the outline of submissions also referred to an alleged error of law, under s 476(1)(e), it was apparent from the submissions that that was simply an alternative way of describing the basis of the claim. The applicant did not make separate oral submissions in relation to that provision. 18 On 8 October 1999, the Tribunal did write to the applicant, apparently in terms which satisfied the requirements of s 425(1) of the Act. That letter invited him to come to a hearing of the Tribunal to give evidence and to present arguments in support of his claims. It specified the day on which, and the time and place at which, he was scheduled to appear: s 425A(1). There is no issue as to that letter having been given to the applicant in a timely manner. The letter also contained a statement as to the effect of s 426A, and it notified the applicant of the effect of s 426(2) of the Act. 19 It was obviously in consequence of that letter that the applicant attended the Tribunal to give evidence on 18 November 1999. 20 The applicant contends, however, that despite the letter having been given apparently in terms which satisfied s 425(1) of the Act, he was not given the opportunity to give evidence and to present arguments relating to issues arising concerning the decision of the delegate under review. He relies upon a passage in the reasons for decision of the Tribunal, at a point where the Tribunal was testing the applicant about a number of matters, to make out that contention. It is as follows:

"The applicant asked for additional time to provide more information about the situation of Dalits in India. The Tribunal said this was not necessary as the Tribunal had access to a broad range of country information. The applicant then asked for time to contact his parents to see what they had to say about the situation for him in India. The Tribunal said this information was not required because the applicant's witness had only recently returned from India, where he had seen the applicant's parents and the witness had just testified as to the situation. The Tribunal said that it would not provide an extension of time for the applicant to submit further information but would take into account anything he submitted prior to the date on which the Tribunal made a decision on the applicant's case." 21 In fact, on 25 November 1999, the applicant did submit a further statement to the Tribunal claiming that his father was seriously ill and that he had been told to rest and to have no stress. He repeated certain information already given to the Tribunal. He enclosed a translation of an extract of his brother's death certificate, to which the Tribunal in its reasons referred. On 26 November 1999 he also submitted to the Tribunal a newspaper report of 25 June 1997 describing corruption schemes involving false passports at New Delhi International Airport, and a translation of a newspaper report stating that a corrupt passport officer in Jalandhar had been caught and punished for issuing forged medical certificates and bogus passports. He also enclosed another newspaper article of 22 July 1997 about a Sikh who had set himself on fire after repeated torture and humiliation by the police. 22 Again, the Tribunal referred to those documents in the course of its reasons. 23 The applicant contends that the refusal of the applicant's request for more time to adduce further information amounted to a failure to comply with s 425(1) of the Act. He submits that the effect of s 425(1) is to entitle an applicant for review to be provided with an opportunity to be heard, and the applicant was not accorded that opportunity. The submission was in part based upon the decision of Minister for Immigration and Multicultural Affairs v Cho (1999) 92 FCR 315 ("Cho"), a decision concerning s 425 in the form in which it existed prior to its amendment by the Migration Legislation Amendment Act (No 1) 1998 (Cth) ("the amending Act"). Prior to the amending Act, s 425(1) provided:

"Where section 424 does not apply, the Tribunal: (a) must give the applicant an opportunity to appear before it to give evidence; and (b) may obtain such other evidence as it considers necessary." 24 Section 424 previously provided for a review "on the papers" by the Tribunal, provided that review was most favourable to the applicant. 25 The amending Act repealed the then existing ss 424 and 425. It substituted six new sections (ss 424, 424A, 424B, 424C, 425 and 425A) dealing with the Tribunal seeking additional information and giving the applicant the opportunity to comment upon it, as well as requiring the Tribunal to invite the applicant to appear to give evidence and to present arguments in relation to the claim: Sch 3 Pt 1 Item 3 of the amending Act. Those amendments came into effect on 1 June 1999: s 2(2) of the amending Act, and Gazette No S51, 5 February 1999. They applied to the Tribunal's review of the subject decision because it had not been completed before 1 June 1999: Sch 3 Pt 1 Item 20(2) of the amending Act. 26 The respondent contended that s 425(1) is satisfied by the letter in its terms, and that s 425(1) no longer requires that a visa applicant be given an "opportunity to be heard" in the sense that that expression was explained in Cho, and in other decisions of the Court: eg. more recently Saadik v Minister for Immigration & Multicultural Affairs [1999] FCA 825; Semunigus v Minister for Immigration & Multicultural Affairs [2000] FCA 240; Dalpatadu v Minister for Immigration & Multicultural Affairs [2000] FCA 26; Gebeyehu v Minister for Immigration & Multicultural Affairs [1999] FCA 1274. 27 I do not need to determine if s 425(1) as now expressed cuts down on the procedural entitlement provided by s 425(1) as previously expressed. The Second Reading speech of the Minister (Hansard, House of Representatives, 2 December 1998, at 1122) does not indicate any such intention. The Explanatory Memorandum to the Migration Legislation Amendment Bill (No 1) 1998 circulated by authority of the Minister (cl 118 and cl 120) provides:

"New section 425 entitles an applicant to have the opportunity to appear before the Refugee Review Tribunal, by requiring the Tribunal to invite the applicant to appear before it, unless new subsection 425(2) applies. When subsection 425(2) applies, an applicant is not entitled to appear before the Tribunal. … At an appearance the applicant would be entitled to give evidence and present arguments relating to the issues arising in relation to the decision under review." 28 Those clauses do not suggest that the general effect of s 425(1) as previously expressed was intended to be cut down in any real way. It may be that the substitution of s 425(1) in its present terms is directed more to specifying a procedure for the giving of the opportunity to be heard which can be tied to the new s 441A (also introduced by the amending Act, Sch 3, Pt 1, Item 12) dealing with the methods of dispatch of certain documents, including the notice of invitation to appear: s 425A. 29 Section 425A(1) of the Act provides:

"If the applicant is invited to appear before the Tribunal, the Tribunal must give the applicant notice of the day on which, and the time and place at which, the applicant is scheduled to appear." 30 As Katz J said in Mohammad v Minister for Immigration and Multicultural Affairs [2000] FCA 466 at [17]:

"it is apparent that the giving by the Tribunal of the notice referred to in s 425A(1) was intended simultaneously to satisfy the Tribunal's obligation under s 425(1) of the Act. 31 Section 425A(2) requires that notice to be given by one of the methods specified in s 441A, unless the applicant is in immigration detention, and s 425A(3) requires the notice to be given by a prescribed period or, if no period is prescribed, a reasonable period. 32 I am prepared to assume in the applicant's favour that s 425(1) prescribes a procedure which requires the applicant to have been given the opportunity to appear and to give evidence and to present arguments, as explained in Cho in relation to its legislative ancestor. In Cho, the extent of that obligation was considered by Tamberlin and Katz JJ at 346-350 [26-46] and by Sackville J at 353-356 [56-71]. Sackville J said at 354-355 [66]:

"Section 425(1)(a), as its language and context make clear, is directed to ensuring that the applicant has an opportunity to appear before the RRT to give evidence, in cases where the RRT cannot decide in favour of the applicant simply on the papers. It is not concerned with procedural irregularities at the hearing that do not deny the applicant the opportunity to appear to give evidence. Procedural irregularities of that kind, whatever other consequences they may have, do not constitute a breach of s 425(1)(a) and thus do not provide a ground of review under s 476(1)(a) of the Migration Act. As Tamberlin and Katz JJ have pointed out, the procedural entitlements of an applicant appearing before the RRT are carefully delineated by the Migration Act. They plainly do not include the full panoply of procedural protections that may be available in other forums." 33 Its extent was also considered in Minister for Immigration and Multicultural Affairs v Capitly [1999] FCA 193; Budiyal v Minister for Immigration and Multicultural Affairs (Tamberlin J, 20 March 1998, unreported) Sook Rye Son v Minister for Immigration and Multicultural Affairs (1999) 86 FCR 584 esp per Moore J at 597-599. 34 Sackville J in Cho (at 356, [70]) and Lindgren J in Sun Zhan Qui v Minister for Immigration and Ethnic Affairs [1997] FCA 324 both recognised that the opportunity to appear to give evidence must be a genuine one. In the normal course (that is, subject to issues that may now arise as to whether notice has been given by a means provided for by s 441A and has been received: cp reg 5.03 of the Migration Regulations), that opportunity to appear to give evidence requires adequate notice of the hearing to be given and the continuing opportunity to take advantage of that entitlement (see Capitly at [34]), or at least that opportunity which is not unfairly impeded by the Tribunal. 35 Even on that assumption, in my judgment the Tribunal has satisfied the procedural requirement imposed by s 425(1) of the Act. It invited the applicant to appear to give evidence and present arguments. That invitation was extended in accordance with s 425A. It was an invitation which was accepted. The applicant attended the hearing on 18 November 1999 and gave evidence and presented arguments to the Tribunal. In the particular circumstances, he was not deprived of the entitlement prescribed by s 425(1) due to the Tribunal's refusal to adjourn the hearing for him to provide more information about the situation of Salits in India. He had expressed that claim first on 28 October 1998, more than twelve months earlier. He had clearly been given the opportunity to present material on that topic to the Tribunal both before the hearing and at the hearing. He was also given the opportunity, of which he availed himself, to present further material to the Tribunal after the hearing. It is not suggested by evidence or in submissions that whatever knowledge the applicant personally had about the situation of Dalits in India could not have been, or was not, given by him at the hearing. 36 As the material the applicant later presented to the Tribunal shows, his request was not that he be given time to give more evidence himself on that topic, but that he wished to assemble more "country information" on that topic to submit to the Tribunal. Even if the applicant were entitled to the full panoply of natural justice requirements (but see s 476(2) and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611), I do not think that he has been deprived of the opportunity to receive that protection. The applicant's other reason for seeking a deferral of the hearing also did not relate to his personal knowledge of matters relating to his claim. It concerned possible further evidence which might have been given by one or other of his parents. However, the applicant does not complain of a failure to comply with the procedure prescribed by s 426(1)(b) and (2) and he does not claim to have given the Tribunal written notice that he wanted the Tribunal to obtain oral evidence from either of them. Moreover, as the Tribunal pointed out, it had received through the applicant's witness the information which his parents had apparently wished to or been able to convey. It later referred to that evidence; it did not accept that the concerns of his parents were well-founded because it found that the applicant is not wanted by the police for murder. It rejected the claim that the authorities are still looking for the applicant. 37 For those reasons, I do not consider that the applicant has made out the ground of review for which he contends. I consider that the application should be dismissed. I so order. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Mansfield.

Associate: Dated: 31 July 2000 Counsel for the Applicant: Mr M Clisby

Counsel for the Respondent: Ms S Maharaj with her Ms J Nunan

Solicitors for the Respondent: Australian Government Solicitor

Migration Act 1958(Cth)ss 2(2), 424, 424A, 424B, 424C, 425, 425(1), 425A, 426(1)(b), 426(2), 426A, 427, 441A, 476(1)(a), 476(1)(e)

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