Arveen Kumar v Minister for Immigration & Multicultural Affairs [1998] FCA 1519 (23 November 1998)

Last Updated: 2 December 1998

CATEGORY: NO QUESTION OF PRINCIPLE

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1027 of 1998

BETWEEN:	ARVEEN KUMAR Applicant
AND:	MINISTER OF IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LINDGREN J
DATE:	23 NOVEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(ex tempore)

INTRODUCTION

The applicant ("Mr Kumar") applies for review of a decision of the Refugee Review Tribunal given on 25 September 1998 by which the Tribunal affirmed a decision of a delegate of the respondent Minister not to grant him a protection visa.

PROCEDURAL BACKGROUND

Mr Kumar arrived in Australia on 19 September 1997. He is a national of Fiji, of Indian ethnicity. On 20 August 1998, he lodged with the Department of Immigration and Multicultural Affairs ("the Department") an application for a protection visa. Seven days later, on 27 August, a delegate of the Minister refused to grant the application.

Mr Kumar applied for review of the Delegate's decision and there was a hearing before the Tribunal on 18 September 1998, when Mr Kumar appeared and gave evidence. On 25 September, the Tribunal affirmed the delegate's decision.

Mr Kumar's present application for an order of review by this Court was filed on 30 September 1998. A criterion for the issue of a protection visa is that, at the time of the decision, the Minister, or on review the Tribunal, is satisfied that the applicant is a person to whom Australia has protection obligations under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (compendiously, "the Convention"). Australia is a party to 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; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it."

Mr Kumar's application was fixed for hearing on 10 November 1998, when he was unrepresented. He applied for an adjournment. He said that he had spoken to "the Red Cross" and that he had applied through the Red Cross for legal aid. He had with him in Court a partially completed application form. I refused the application for an adjournment but said that I would not give judgment until the Red Cross and the Legal Aid Commission of New South Wales were contacted and it was ascertained if any further submission was to be made on Mr Kumar's behalf. The hearing proceeded on 10 November accordingly. Subsequent inquiries of the Red Cross Tracing Agency and the Legal Aid Commission revealed that neither wished to make further submissions on behalf of Mr Kumar.

REASONING

Mr Kumar's application to this Court for review of the Tribunal's decision is difficult to understand. No "grounds of the application" are stated although provision for the statement of them exists in Federal Court Form 56 which Mr Kumar used (correctly) as his originating process. In the part of the form providing for a statement of the reasons why "[t]he applicant is aggrieved by the decision", the following handwriting appears:

"I did not agree with the R.R.T. Natural Justice Decision because he did not consider because she did not consider my evidence inside my account and its not following the law of Naturally Justice and under the Migration Act (476-414-412-36) and she never gave a patient and sympathetic hearing for my Problem." (I have repeated the errors in the original)

Mr Kumar's claims were set out in written submissions to the Department and to the Tribunal and in oral evidence given to the Tribunal on the hearing. I do not think it necessary to set out even a summary of the "Claims and Evidence" section of the Tribunal's Reasons for Decision.

There was a marked difference between the claims made as part of Mr Kumar's original application and those made ultimately to the RRT. In his original written claim, he complained that he left Fiji because native Fijians robbed him of his wallet (containing $100) and watch and assaulted him, breaking his tooth, on his way home from work, and threatened to harm him and his family if he reported them to the police. He also complained that once these people tried to kill him and that he had left Fiji because he could not do anything to counter their conduct. He said that Fiji was "their country" and that even the police could not do anything. He said that if he tried to do anything, they would come and throw stones at his house. He said that they were still looking for him and sometimes asked his family as to his whereabouts. He said that if he returned to Fiji he would be killed because they had tried to kill him once before. More generally, he said that he could do nothing because he was a Fijian Indian and his family was poor. He complained that the police would help native Fijians.

The Minister's delegate had found that Mr Kumar was the victim of a criminal act carried out for monetary gain and that he had feared retribution from the criminals if he reported them to the police. Accordingly, the delegate had decided that there was no link to the Convention.

At the hearing before the Tribunal, Mr Kumar's claims took on a distinctly religious and political aspect. He claimed to fear two ethnic Fijian brothers and a Muslim man. He claimed that during an election he had been threatened by one of the brothers and that three or four days after the election, he had been assaulted on his way home from work by the brothers and a gang of other ethnic Fijians because he had voted for the "Indian Federation Party" and had helped that party by driving voters to the polls.

I do not think it necessary to describe in more detail the way in which Mr Kumar's claims were enlarged before the Tribunal. The Tribunal sought to clarify the further claims and to develop a chronology as to when Mr Kumar said the various events occurred.

The Tribunal concluded that it did not accept that Mr Kumar was a credible witness in relation to the later claims. It pointed out in its Reason for Decision various inconsistencies and a characteristic vagueness in Mr Kumar's account before the Tribunal. It stated:

"The Tribunal is not satisfied that any other incidents apart from the assault which resulted in a broken tooth and the robbery of his wallet and watch actually occurred."

It is clear that the Tribunal was simply unconvinced, for reasons stated by it, that Mr Kumar had not fabricated his claims other than those which had been dealt with by the delegate originally. It was within the province of the Tribunal to reach that conclusion. I see no appealable error in the Reasons for Decision of the Tribunal.

CONCLUSION

In the result, the orders of the court are that:

1. The application be dismissed;

2. The decision of the Refugee Review Tribunal dated 25 September 1998 be affirmed;

3. The applicant pay the respondent's costs.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated: 25 November 1998

The applicant appeared in person
Counsel for the Respondent:	Ms A F Backman
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	10 November 1998
Date of Judgment:	23 November 1998