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1 The appellant, who is a young Sikh woman and a citizen of India, arrived in Australia on 13 November 1995. On 1 February 1996 she lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 8 May 1997 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 28 May 1997 the appellant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 4 February 2000, the Tribunal affirmed the decision not to grant a protection visa.

Kaur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 62 (20

Kaur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 62 (20 March 2002); [2002] FCA 287
Last Updated: 9 May 2002


Kaur v Minister for Immigration & Multicultural Affairs [2002] FCAFC 62
Kaur v Minister for Immigration & Multicultural Affairs [2002] FCA 287



NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC)
The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation.

The transitional arrangements are as follows:

* All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation.

* All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series.

* All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only.


FEDERAL COURT OF AUSTRALIA
Kaur v Minister for Immigration & Multicultural Affairs [2002] FCA 287


PARVINDER KAUR v MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

S 80 OF 2001

HILL, TAMBERLIN & EMMETT JJ

20 MARCH 2002

ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA


NEW SOUTH WALES DISTRICT REGISTRY
S80 OF 2001



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
PARVINDER KAUR

APPLICANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGES:
HILL, TAMBERLIN & EMMETT JJ

DATE OF ORDER:
20 MARCH 2002

WHERE MADE:
ADELAIDE



THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. the appellant 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
S80 OF 2001



ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:
PARVINDER KAUR

APPLICANT

AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT



JUDGES:
HILL, TAMBERLIN & EMMETT JJ

DATE:
20 MARCH 2002

PLACE:
ADELAIDE




REASONS FOR JUDGMENT
THE COURT

1 The appellant, who is a young Sikh woman and a citizen of India, arrived in Australia on 13 November 1995. On 1 February 1996 she lodged an application for a protection visa under the Migration Act 1958 (Cth) ("the Act"). On 8 May 1997 a delegate of the respondent, the Minister for Immigration and Multicultural Affairs ("the Minister"), refused to grant a protection visa. On 28 May 1997 the appellant sought review of that decision by the Refugee Review Tribunal ("the Tribunal"). On 4 February 2000, the Tribunal affirmed the decision not to grant a protection visa.

2 The appellant then applied to the Court for an order of review of the decision of the Tribunal. On 31 May 2001, a judge of the Court ordered that the application be dismissed with costs. By notice of appeal dated 20 June 2001, the appellant now appeals to the Full Court.

THE APPELLANT'S CLAIMS AND THE TRIBUNAL'S FINDINGS

3 The appellant claimed that while in India she was a member of the Sikh Students' Federation ("SSF") and that she assisted the SSF by passing on messages from her uncle in Australia to a contact in the SSF. She did not claim to have held any office in the SSF while she was in India. Nor did she claim to have belonged to any other political organisation in India. The Tribunal considered that, for most of the period during which the appellant claimed to have been a point of contact between her Uncle and the SSF, she was too young to have been a member and that her age would have limited any role that she could have played in the SSF.

4 Nevertheless, the Tribunal accepted the appellant's claim that she was a contact point for conveying messages from her uncle in Australia to an SSF contact in India for the period from 1987 to 1994 and that she was a supporter of the SSF during that time. The Tribunal accepted that the appellant was possibly a member of the SSF after she turned sixteen in April 1994 and became eligible to be a member. The Tribunal also accepted that the appellant's two younger brothers assisted the SSF by acting as contact points for passing messages.

5 The appellant claimed that on 6 January 1994 she was arrested with two of her friends, taken to a police station, illegally detained in the absence of female police officers and questioned and beaten by the police because they had learned that she had been passing messages from her uncle to a contact in the SSF. She claimed that the police threatened to kill her and that she was physically abused, threatened with dishonour and told to stop her political activities. She claimed that she and her friends were released the same night with a warning. Subject to a question concerning the date of arrest, the Tribunal accepted those claims.

6 In her original application for a protection visa, the appellant claimed that her father and grandfather had been arrested on 30 June 1994. She did not mention any involvement of her own in that incident either in her original application for a protection visa or in written submissions she lodged with the Tribunal on 8 December 1999, the day before a hearing by the Tribunal. However, at the hearing before the Tribunal on 9 December 1999, the appellant claimed that she had also been arrested with her father and grandfather and taken to Chandigarh, where she was kept at the police station for six days. She claimed that she was beaten very badly with a cane and a strap until she was unconscious and that the police attempted to expose her indecently in front of her father and grandfather.

7 The Tribunal considered that it was not credible that the appellant could have forgotten to mention in both her original application and in her written submissions that she had been arrested, beaten until she was unconscious and detained for six days but could recall the incident during the hearing only a couple of days after she had sent in her submission. The Tribunal concluded that the appellant had fabricated that claim at the hearing to enhance her application for refugee status. While the Tribunal found that the appellant's father and grandfather may have been arrested and detained in June 1994, the Tribunal found that the appellant's claims that she was arrested at the same time, detained, indecently exposed and beaten until she was unconscious were not true.

8 The Tribunal accepted the appellant's claim that she and other members of her family were arrested on 5 December 1994, taken to a police station where they were questioned about her uncle's activities and detained for one day. The Tribunal accepted that the appellant and the members of her family were beaten during that questioning.

9 However, at the hearing, the appellant claimed that her brother's hand had been amputated after it had been mutilated by the police when they arrested him. The appellant explained to the Tribunal that she had not mentioned that incident earlier because it had occurred in 1995. The Tribunal accepted that the appellant's brother may have had his hand amputated but found that, in view of the late assertion of such a claim and the inconsistencies between the appellant's story and documentation produced by her, the circumstances of the amputation as asserted by her were fabricated for the purpose of enhancing her claims for refugee status and that they were not true.

10 The appellant also drew to the Tribunal's attention reports that the Punjab police keep track of the activities of Sikhs living abroad. She claimed that she is an active member in Australia of the International Sikh Youth Federation ("ISYF") and that her activities are monitored by the Indian authorities who know of her whereabouts. She claimed that, for that reason, she would be subject to harassment and persecution should she return to India.

11 The Tribunal did not consider that the appellant fitted the category of persons regarded by the police as "a high profile militant suspect". The Tribunal did not accept that the police were still looking for the appellant on the basis of her activities prior to her departure from India. The Tribunal considered that, because the police are no longer interested in the appellant, they do not know that she is in Australia and concluded, therefore, that the appellant's involvement with the ISYF in Australia had not so far come to the attention of the Indian authorities.

THE ADVOCATE'S LETTER

12 Before the Tribunal, the appellant placed reliance on a letter dated 19 November 1999 ("the advocate's letter") from Mr A.K. Mittal, an advocate of the Punjab and Haryana High Court who practises in Jalandhir. The letter was addressed to the appellant in South Australia and relevantly said as follows:

"As per the request of your father Mr Satwinder Singh, I am hereby informing you about the legal opinion in respect of your criminal case... Under sections 212/216 of Indian Penal Code and under section 3/4 of Terrorist, Disruptive and Prevention Act. As you already know that in this case you have been declared as proclaimed offender.
Your case is of serious nature and you have been declared proclaimed offender and under these circumstances, there is no hope that you shall be discharged by any review committee or by any court without your surrender before the police authorities. Under this process, there is least some chance of your discharge, but on the other side I cannot say that you will be safe in the custody of Punjab police or not.

...........................

Under the circumstances, I advise you to stay in Australia or in any other country until further advice otherwise none will be in a position to save your life and liberty from the clutches of the Punjab police.

I shall inform you of your return to India as and when the situation becomes favourable for you."

13 The Tribunal characterised the advocate's letter as "a very important document" because it stated that:

* there is an outstanding criminal case against the appellant under ss 212-216 of the Indian Penal Code;

* the appellant is a "proclaimed offender";

* the appellant's case is of a serious nature and there is no hope of her being discharged by the review committee unless she surrenders to the police.

The Tribunal considered that, if that were a true description of the situation, then the advocate's letter supported the appellant's claims that "she would indeed be in danger of persecution if she returned to India now or in the foreseeable future".

14 However, the Tribunal said that it had no hesitation in dismissing the contents of the advocate's letter as being unreliable for several reasons as follows:

* The appellant had made no previous mention that she was a "proclaimed offender".

* The advocate's letter refers to the appellant's criminal case as number 20 of 6/1/94 but the appellant claimed that she was first arrested in April 1994 and that she had never claimed to have been arrested by the police in January 1994.

* Sections 212/216 of the Indian Penal Code relate to punishment for harbouring offenders, including those who have escaped from custody but the appellant had not made any claim at any stage that she was wanted by the police for harbouring an offender. Section 3 of the Terrorist, Disruptive and Prevention Act relates to the punishment of terrorist acts and section 4 to the punishment of disruptive activities. The Tribunal doubted that even, in 1994, the police in the Punjab would have charged a child of 15 under the provisions of that legislation simply for acting as a contact point and passing messages.

* If the appellant had been a proclaimed offender with outstanding charges under the Penal Code and the Terrorist, Disruptive and Prevention Act she would not have been able to obtain a passport in her own name or to have left India.

Having regard to those matters, the Tribunal considered that the contents of the advocate's letter were untrue and found that it was not credible and had been fabricated by the appellant in the hope that it would enhance her claims for refugee status.

THE TRIBUNAL'S CONCLUSIONS

15 The Tribunal found that the appellant had not been an entirely truthful witness and that some of her key claims were not credible. While the Tribunal accepted that there continued to be significant human rights abuses in India, the Tribunal concluded that the material provided by the appellant did not disprove the views expressed by expert commentators that the situation in the Punjab had greatly improved in recent years and that persons such as the appellant could now safely return to the Punjab. The Tribunal found that, if the appellant were to return to India now, there was not a real chance that she would be persecuted by reason of the political opinions she expressed or of any political opinions imputed to her before she departed India. Nor was there a real chance of the appellant being persecuted by reason of a political opinion imputed to her because of her family connection with her uncle. The Tribunal considered that the independent information available to it indicated that it would be safe for the appellant to return to the Punjab if she wished to do so.

16 The Tribunal also found that, if she felt afraid of the police in the Punjab, it would be open to her, as a young, educated woman, who has already established her capacity to live in a foreign country, to relocate to another part of India. The appellant claimed that the police could find her anywhere in India. The Tribunal accepted that the police could locate her wherever she lived. However, the Tribunal found that, because the political situation in India had improved to the point that there is no real chance that the police would wish to find her and persecute her, relocation was an option satisfactory to address any subjective fear she may have of the Punjab police. The Tribunal concluded that while it was safe for the appellant to return to the Punjab, it would be a reasonable option for her to relocate within India if she did not wish to return to the Punjab.

17 Accordingly, the Tribunal was not satisfied that the appellant was a person to whom Australia had protection obligations under the Refugees Convention as amended by the Refugees Protocol.

THE PRIMARY DECISION

18 The grounds of review stated in the amended application filed on behalf of the appellant are as follows:

* the Minister failed to comply with s 476(1)(a) by not observing the requirements of s 430(1)(c) and (d);

* the Minister erred in law by failing to take into account relevant considerations and did not act according to substantial justice and the merits of the case;

* the Minister exercised a power not authorised by the Act and the Regulations in contravention of s 476(1)(c) of the Act by changing the date of the first arrest and then using this incorrect date to make an adverse finding about the appellant's credibility;

* the Minister exercised the power conferred by the Act and the Regulations in an improper way in contravention of s 476(1)(d) of the Act by using an internally consistent assumption to discredit evidence in this matter;

* the decision involved an error of law when the Tribunal applied evidence about religious issues to political issues;

* there was no evidence or other material to justify the making of the decision when the Tribunal found that the appellant was first arrested on 6 April 1994;

* the Minister did not take into proper consideration the merits of the case; and

* the decision is manifestly unreasonable.

19 The primary judge observed that the Tribunal had identified five areas in the material before it that constituted inconsistencies in the evidence of the appellant. His Honour observed that the Tribunal compared the information provided in her original application for a protection visa and her written submissions, on the one hand, with the evidence given by the applicant during the course of the hearing, on the other hand. His Honour concluded that, with the consistencies identified, it was understandable that the Tribunal found that it could not rely on the appellant's evidence. His Honour considered that "the enormity of the inconsistencies" could not be swept aside.

20 His Honour then turned attention to the grounds of the amended application and observed that the author appeared to have had some legal knowledge but insufficient awareness of the provisions of the Act. His Honour then considered each of the grounds separately and concluded that none of them was made out.

21 In particular, his Honour considered the appellant's contention that the Tribunal exercised a power that was not authorised by the Act. That contention was founded on an error made by the Tribunal as to the date of the first arrest of the appellant. Counsel for the Minister acknowledged that the Tribunal had made a mistake in stating that the appellant claimed that she was first arrested on 6 April 1994 when, in fact, the correct date was 6 January 1994. That mistake occurred when the Tribunal was discussing the reasons why it rejected the contents of the advocate's letter. The mistaken date was one of those reasons.

22 The primary judge considered that, having regard to the significance that the Tribunal attached to its mistaken understanding, the mistake, taken in isolation, might have been sufficient to cause his Honour to remit the matter to the Tribunal for further consideration. However, His Honour considered that there were other compelling reasons for rejecting the advocate's letter and that the reason first given by the Tribunal for doing so was sufficient to dismiss the contents of the letter as a fabrication. That reason was stated by the Tribunal in the following terms:

"Firstly, the applicant has made no mention previously that she is a `proclaimed offender' with outstanding criminal charges against her under the Indian Penal Code and the TADA, even though the letter from the advocate specifically states that she is already aware of this. She did not raise this issue I her original claims, in her sessions with the psychologist, her appeal Submission or at the hearing. It is completely implausible that the applicant would fail to mention at any of these stages a matter which would be so strongly supportive of her case, if she had indeed been charged as stated in the advocate's letter."
23 His Honour concluded that the mistake as to the date did not affect the Tribunal's reasoning in any material respect and that it was incorrect to say, as the grounds of review asserted, that the Tribunal had made use of its mistaken understanding to make an adverse finding about the appellant's credibility. Accordingly, His Honour was not persuaded that any of the grounds in s 476(1) of the Act had been made out on the basis of the mistake.

THE APPEAL

24 The appellant's notice of appeal states the following grounds:

1. His Honour's decision should be set aside because the Tribunal erred in affirming the decision not to grant a protection visa to the appellant, and his Honour erred in failing to so determine.
Particulars

a) the Tribunal erred by failing to comply with Section 476(1)(a) by not observing the requirements of s 420(2)(b) that the Tribunal was obliged I the particular circumstances to act according to substantial justice and the merits of the case. The applicable law required in the particular circumstances that those issues relating to the first arrest be addressed properly on their merit.

b) The Tribunal relied on an incorrect date of the first arrest, being 6 April 1994, which was not given in evidence by the appellant. The appellant gave the date of 6 January 1994 for the first arrest. The use of the incorrect date resulted in a failure to comply with those subsections of the Act to deal with the mater amounts to a failure to observe a procedure required by the Act to be observed in connection with the making of the decision so as to give rise to the ground of review available under s 476(1)(a).

2. The Tribunal exercised a power conferred by the Migration Act and the regulations in an improper way in contravention of Section 476(1)(d) of the Migration Act 1958.

Particulars

a) The Tribunal erred by failing to deal with the merits of the case and instead made findings based on alternative possible scenarios which were not based on the facts or claims by the appellant, but on internally consistent logic dealing with partial facts or claims on the assumption that the appellant was not telling the truth in the matter.

b) The Tribunal further erred as there was no evidence or other material to justify the making of the decision based on alternative scenarios in contravention of Section 476(1)(g) of the Migration Act 1958."

25 The appellant, who was originally unrepresented, made written submissions to the Full Court prior to the day fixed for the hearing of the appeal. In the course of the hearing of the appeal on 28 November 2001, the appellant, who appeared in person, became indisposed. The hearing was therefore adjourned and directions were given for the parties to make supplementary written submissions. Pursuant to those directions, written submissions on behalf of the appellant were prepared by M.G. Pickhaver of counsel and received by the Court on 15 February 2002. Written submissions on behalf of the Minister by Sashi Maharaj of counsel were received by the Court on 28 February 2002. There has been no further oral hearing.

26 The thrust of the appellant's original submissions to the Full Court and the thrust of the written submissions on her behalf by counsel was that there was no evidence or other material to justify the making of the decision. The submission was based on the mistake made by the Tribunal as to whether the appellant had ever claimed that the date of her first arrest was 6 April 1994.

27 It is clear that the Tribunal made a mistake. In her original application for a protection visa, the appellant said, inter alia, the following in answer to a question as to why she left India:

"I was first arrested at Khanna bus stand on 06.01.1994, along with my two friends where we were waiting for a contact..."
Further, the record of the decision of the Minister's delegate, a copy of which was before the Tribunal, included the following under the heading "CLAIMS":

"Ms Kaur was first arrested at Khanna bus stop on 6.1.94, along with her two friends."
28 The appellant did not at any stage claim to have been arrested on 6 April 1994. However, the Tribunal's reasons included the following:

"The applicant has claimed that on 6 April 1994 she was arrested with two of her friends, taken to the police station, illegally detained in the absence of women police, questioned and beaten by the police because they had learned that she had been passing messages from her uncle to a contact in the SSF... The Tribunal accepts these claims, and finds that the applicant was arrested, detained for several hours and questioned as she has claimed in April 1994."
29 The Tribunal then gave the following as one of the reasons why it had no hesitation in dismissing the contents of the advocate's letter as being unreliable:

"Secondly, the letter refers to her criminal case no 20 of 61/1/94. The applicant has claimed that she was first arrested in April 1994 - she has never claimed to have been arrested by the police in January 1994. The Tribunal has considered whether the date in the advocate's letter might be following the American practice of dating documents by putting the month before the day, thereby making the date of the charge June 1994, which would be consistent with the applicant's claim in her hearing that she was arrested in June. However the Tribunal has looked at a range of Indian legal documents including the Penal Code and the TADA and is satisfied that India follows the British practice of putting the day before the month, and the charges therefore refer to 6 January 1994, which does not fit in with any of the applicant's claims."
30 The reason for the Tribunal's mistake does not matter. The question is whether the mistake is one that can be relied upon as establishing the ground in s 476(1)(g). The written submissions prepared by counsel for the appellant accept that any ground under s 476(1)(e) is consequent upon the establishment of the ground in s 476(1)(g). It is not necessary, therefore, to consider s 476(1)(e) separately.

31 Section 476(1)(g) relevantly provided that a ground of review by the Court of the decision of the Tribunal that there was no evidence or other material to justify the making of the decision. That provision, however, was qualified by s 476(4)(b), which provided that the ground in s 476(1)(g) was not to be taken to have been made out unless the person who made the decision based the decision on the existence of a particular fact, and that that fact did not exist.

32 The application of s 476(1)(g), as expanded by s 476(4)(b), requires, so far as is presently relevant, the following steps (see Minister for Immigration & Multicultural Affairs v Indatissa [2001] FCA 181 at [26]-[28]):

* First, a relevant particular fact must be identified.

* It is then necessary to determine whether there was any evidence before the Tribunal to justify a finding of that fact. If there was such evidence, the ground cannot be made out.

* If there is evidence to show that the facts did not exist, it is then necessary to apply the first limb of s 476(4)(b). That requires an analysis of the Tribunal's reasoning to determine whether its decision was based on that fact.

33 The appellant's contention revolves around the finding by the Tribunal that the appellant claimed that she had been arrested on 6 April 1994 and had never claimed to have been arrested by the police in January 1994. There was no evidence before the Tribunal to justify such a finding. Further, it was common ground that the finding was wrong, in that the appellant had always claimed to have been arrested in January 1994 and had never claimed that she was first arrested in April 1994. The real issue is whether it can be said that, on analysis of the Tribunal's reasoning, the Tribunal's decision was based on the fact that the appellant had claimed that she was first arrested in April 1994 and had never claimed to have been arrested in January 1994.

34 The Tribunal advanced a number of reasons for rejecting the appellant's claims to refugee status, quite apart from its dismissal of the contents of the advocate's letter as unreliable. Thus, the Tribunal identified five areas in the material before it that constituted inconsistencies in the appellant's evidence. The first four areas were as follows:

* evidence by the appellant of a second occasion when she was arrested in 1994, an incident that had not been recorded in either her original application or in the written submission to the Tribunal;

* the circumstances in which the appellant's brother had his hand amputated, an incident that the appellant failed to mention in either her original application or her written submission;

* evidence by the appellant that her father was an alcoholic and an invalid with mental problems, with whom she had had little or no contact, an assertion inconsistent with the advocate's letter having been written to the appellant at the request of her father;

* a claim in an affidavit from the village headman that the police had taken over the appellant's house since 29 June 1997, a claim not previously made, which was inconsistent with her assertion to the Tribunal that no one was living in the house.

The fifth was the contents of the advocate's letter.

35 For the reasons given by the Tribunal apart from the advocate's letter, there was ample evidence before the Tribunal to support the Tribunal's conclusion that the appellant was not a truthful witness and that some of her key claims were not credible. Further, there were four separate reasons that led the Tribunal to dismiss the contents of the advocate's letter as being unreliable. The mistake concerning the appellant's claims as to when she was first arrested was but one of those reasons.

36 A fair reading of the Tribunal's reasons indicates that its mistaken conclusion that the appellant claimed that she was first arrested in April 1994 and had never claimed to have been arrested in January 1994 was not the basis of the Tribunal's decision that the appellant was not a refugee within the meaning of the Refugees Convention so as to satisfy the criterion for the grant of a protection visa under s 36(2) of the Act. The decision was not based on the Tribunal's mistaken conclusion in the sense that, but for the mistake, the Tribunal would have reached a different conclusion.

37 It follows that the ground in s 476(1)(g) was not made out. There was no error on the part of the primary judge. Accordingly, the appeal should be dismissed with costs.

I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hill, the Honourable Justice Tamberlin and the Honourable Justice Emmett.



Associate:

Dated: 20 March 2002

Counsel for the Appellant:
The appellant appeared in person




Counsel for the Respondent:
Ms Sashi Maharaj




Solicitor for the Respondent:
Australian Government Solicitor




Date of Hearing:
26 November 2001




Date of Judgment:
20 March 2002

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