Kumar v Minister for Immigration & Multicultural Affairs [1999] FCA 829 (3 June 1999)

Last Updated: 22 June 1999

No Question of Principle

FEDERAL COURT OF AUSTRALIA

Kumar v Minister for Immigration & Multicultural Affairs [1999] FCA 829

SANJIV KUMAR v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 280 OF 1999

DOWSETT J

3 JUNE 1999

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 280 OF 1999

BETWEEN:	SANJIV KUMAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	DOWSETT J
DATE OF ORDER:	3 JUNE 1999
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application be refused.

2. The applicant pay the costs of the respondent.

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 280 OF 1999

BETWEEN:	SANJIV KUMAR Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	DOWSETT J
DATE:	3 JUNE 1999
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 This is an application to review a decision of the Refugee Review Tribunal. The grounds specified rely upon paragraphs 476(1)(e) (that the decision involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect application of the law to the facts) and (g) (that there was no evidence or other materials to justify the making of the decision) of the Migration Act 1958 (Cth).

2 It is necessary to give a brief background to the circumstances of this case. The applicant was born on 3 February 1970 and came to Australia in May, 1996. He applies for a protection visa upon the basis of an alleged fear of persecution for his political activities in India. The precise nature of those activities is far from clear. He makes various florid assertions as to the way in which he was treated but appears to complain of only one discrete event, which is said to have occurred in early 1996. He was arrested and held in custody overnight, beaten and warned that he should, for the future, refrain from political activity directed against the Congress Party, or at least in broad terms, that is what I understand the threat to have been.

3 This implies that he was a supporter of the BJP Party rather than the Congress party, although both in his written application and before the Tribunal, he appears to have asserted membership of the Congress Party rather than the BJP. That matter was not treated by the Tribunal as of particular importance. It might, however, have led the Tribunal to treat his evidence with some caution.

4 The Tribunal's reasons for refusing him a protection visa appear from the following extract:-

The Tribunal is prepared to accept that the applicant is a member of (the BJP, the Shiv Sina and the Anti-Corruption Association of India). The Tribunal notes that the applicant was, on the basis of his membership cards and his own evidence, a member of the BJP for less than 2 years and a member of the other two organisations for less than 1 years. The Tribunal finds, on the basis of his evidence, that his role in all these organisations has been a minor one. The Tribunal finds, that although the police may have detained him for 1 night, the fact that he was then released and there was no further follow-up of him, would seem to indicate that the authorities had no reason to maintain a continuing interest in him.

The Tribunal notes, that the party to which he belongs, according to the independent evidence cited above, holds power (in a coalition government) in the Punjab and has also risen to national prominence as the major party on the national scene. Applicant's lack of knowledge of the BJP in that he thought the government had ended within a month, would seem to impugn his credibility in respect of the extent of his alleged involvement with the BJP. Given the minor political profile of the applicant, the Tribunal believes the correspondence presented by the applicant not to be truthful.

Because of the applicant's minor role within the political milieu in India, the Tribunal finds that the correspondence, even if not fabricated, does not of itself nor in conjunction with the applicant's other evidence, support a finding that the applicant has a well founded fear of persecution.

The Tribunal finds the applicant's fears not to be well founded since it finds there is no real chance the applicant might face persecution in the foreseeable future for any imputed political opinion. The Tribunal further finds his fear is not well founded in terms of any other convention reason.

5 The applicant attacks the Tribunal's decision in a number of ways. Firstly, he suggests that the Tribunal has misunderstood evidence as to the government history of the BJP. This issue was raised initially by the applicant in his written application in which he asserted, "As you are well aware, that our government (formed by BJP) was ended within a month due to the bargaining and corruption." The application was made in July 1996, following the fall of a very short-lived BJP Government of the Republic of India. It may well be that he was, as he now asserts, referring to the National Government, as opposed to the provincial government of the Punjab. The Tribunal cross-examined him about this matter in a way which suggests that it thought he had been referring to the Punjabi Government. At page 9, this passage appears:-

Dr Whitton: Okay. Now, the government of Punjab is a coalition between BJP and Akali Dahl is the government, yeah?

Mr Kumar: Yeah?

Dr Whitton: Yeah. So, you say that the government there only lasted one month, the BJP Government only lasted one month. Okay, I don't understand this here, `As you are well aware that our government formed by BJP'. That's in the Punjab, yeah, `was ended within a month due to the bargaining and corruption'. Do you understand the English `was ended within a month due to bargaining and corruption?'

Mr Kumar: Yeah. I don't remember what may - 2 or 3 months.

Dr Whitton: Okay. But I thought BJP and Akali Dahl are still in power.

Mr Kumar: Maybe second time.

6 It is submitted that the questioning technique adopted by the Tribunal was inappropriate and that it did not lead to an accurate disclosure of the applicant's position. It is said that the better inference from his statement in the initial application is that he was referring to the National Government. As I have said, that may be so. However, it is also clear that the Tribunal was questioning him about the Punjabi Government and that he accepted that such was the case, leading to the available inference that he had originally intended to refer to the Punjabi Government rather than the National Government. In any event, it was open to the Tribunal to take his answers at face value. It follows that the use made by the Tribunal of his answers was entirely permissible.

7 It is submitted that the Tribunal's use of the incident of apprehension in early 1996 was inappropriate. In this regard, the Tribunal merely pointed out in its reasons that there was only one such incident and that he was not thereafter bothered by the authorities, suggesting that they had no continuing interest in him. The applicant submits that he left India in May, 1996 so that, at most, there was only a period of about four months of "tranquillity" upon which to base this inference. That is a question of weight. Four months without further police interference or persecution may not be a particularly long period of time, but it was open to the Tribunal to draw the inference in question from the absence of police interference over that period.

8 Thirdly, it is said that the Tribunal wrongly rejected certain letters. It appears that the applicant produced numerous letters, allegedly from people in India, suggesting that political opponents were looking for him and that he should not return for fear of harm. The letters are not before me, nor does it seem that any formal translation was put before the Tribunal. An oral translation may have been given in the course of the hearing, but it was not recorded. The Tribunal inferred from the minor political profile which it attributed to the applicant that if the letters asserted that he was at risk, they were "not truthful". It is submitted that the Tribunal was not in a position to form this view, and in a sense, that is correct. However it is a question of what the Tribunal meant. It seems to me that the Tribunal's decision was based, not upon any assessment of the letters in isolation, but upon the view which it had formed of the applicant's political activity. The Tribunal concluded that if the writers of the letters were asserting that he was at risk, it did not accept that such was the case. It is conceded that the relevance of the letters for present purposes and for the purposes of the Tribunal was, in any event, quite limited. The applicant's concern is that they may have been used by the Tribunal in forming an adverse view of his credibility. The Tribunal does not appear to have used the letters in that way.

9 The primary basis for rejecting the applicant's evidence as to his claimed fear of persecution was the perception that he did not have a high political profile, and so it was unlikely that he would be persecuted on account of that profile. I consider that there is no error demonstrated in this conclusion.

10 The applicant also complains that the Tribunal failed to address the issue of the unwillingness of the authorities to protect him from persecution. I find no evidence to support that assertion. The material might support an assertion that lawlessness and violence is more frequent in India than one would hope, but that does not necessarily lead to the conclusion that the government is withholding its protection from persons for political reasons, or that it is permitting persecution. The principal weakness with this complaint, in any event, is that it would only be relevant if the Tribunal had been otherwise satisfied that there was a genuine threat of political persecution. Given that the Tribunal was not so satisfied, the question of whether or not that persecution was tolerated by the government did not arise.

11 In the circumstances, the application must be refused with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:

Dated: 3 June 1999

Counsel for the Applicant:	Mr P Segal
Solicitor for the Applicant:	Coelho &Coelho
Counsel for the Respondent:	Mr J D Smith
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	3 June 1999
Date of Judgment:	3 June 1999