FEDERAL COURT OF AUSTRALIA

Applicant A194/2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 652

APPLICANT A194/2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

S 760 of 2003

SELWAY J

16 APRIL 2004

ADELAIDE

THE COURT ORDERS THAT:

1.           The application is dismissed.

2.           The applicant to pay the first respondent’s costs.

3.           No order made in relation to the costs of the second and third respondents.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     In this case, the applicant seeks prohibition certiorari mandamus and/or an injunction in relation to a decision of the Refugee Review Tribunal (‘the Tribunal’) dated 10 February 2003.  The Tribunal refused the applicant's application for a protection visa on the basis that it was not satisfied that Australia had protection obligations in relation to her.

2                     The sole ground revealed in the amended application for an order for review is that the Tribunal breached its obligation to afford procedural fairness to the applicant by proceeding with the hearing with a male interpreter.  Both parties accept that in order to succeed in these proceedings the applicant must show that there was a jurisdictional error in the process, reasons or decision of the Tribunal.

3                     The applicant is a citizen of India.  She lists her ethnic group as Punjab Jat and her religion as Sikh.  It is not altogether clear what the basis of her claim to be a refugee was.  At one time she claimed to have been at risk of persecution by reason related to her husband’s involvement in the Sikh Separatist Movement, a claim she appears later to have denied.  Before the Tribunal, it would seem that she claimed that she was at risk of persecution by reason of her son‑in‑law’s involvement in the Sikh Separatist Movement.

4                     What is clear is that her claim included a claim of past persecution, including alleged sexual assaults upon her by the Punjabi police.  As the Tribunal stated in its reasons:

‘The applicant goes on to state that, “From September 11 2001, the police have started coming to my place at lease once a week.  They claim that I am working for terrorists, because my son‑in‑law and that I was baptised by Sant Jarnail Singh Bhindranwale and had seen him on a regular basis when he came through the area.  I do not know how they found this out as I was baptised in 1982 at Fatah Sahib and saw Sant Jarnail Singh Bhindranwale, as did many other people at the time.

The police have recently been hitting me and threaten me with things I can not repeat.  I have been living in constant fear for the last few months and finally was granted a visa after a $10,000 bond was lodged by my daughters in order to save me from the Indian Police.  If I return to India with the new laws, I will be arrested and charged because of my contacts with Jarnail Singh Bhindranwale and my son‑in‑law’s activities with International Sikh Student Federation.’

The Tribunal also recorded in its reasons:

‘The Applicant was asked why she had applied for a protection visa.  She stated that she had fear to go home.  The applicant was asked about this fear.  She stated that, “the police over there will give me a hard time.”  The Applicant was asked when the police started to give her a hard time.  She stated that it started some four or five years ago when her second daughter married.  She stated that the police approached her and asked about her daughter and son‑in‑law.  She stated that she told the police t hat she did not know anything about her son‑in‑law.

The applicant stated that she did not know how the police knew about her daughter getting married here in Australia.  She stated that her son‑in‑law had left India and that he was on a wanted list in India.

She stated that the police kept coming back and they kept asking her questions and that they did unmentionable things to her.  The Applicant stated that she could not discuss these things in the presence of a male interpreter.’

5                     Plainly enough, the Tribunal was well aware that the allegations being made by the applicant included allegations that she had been assaulted, apparently sexually, by police and that that was by reason of her political affiliations or those imputed to her.  The Tribunal was also well aware that the applicant was not prepared to discuss the detail of those allegations in the presence of a male interpreter.  The Tribunal rejected the applicant’s evidence.  The reasons for that are set out in the Tribunal’s reasons:

‘Taking into account the above considerations, the Tribunal has come to the conclusion that the Applicant is not credible in respect of key aspects of her claims for protection.  Not being satisfied in respect of these aspects of her claims, which are discussed below, leads the Tribunal to conclude that the Applicant is not in genuine fear of persecution nor is there a real chance of persecution on her return to India.

The Applicant’s claims may be summarised as follows:  the Applicant claims to be a Sikh woman from the Punjab.  She claims that in the past she has been arrested and harassed by the police by reason of an imputed political opinion.  She claims that she fears persecution from the police because she is a Sikh and because of an imputed political opinion (connections to Sikh militants) on returning to India.

The Tribunal does not accept that the Applicant has been arrested or harassed by the police because of an imputed political opinion.  The Tribunal reasons for this finding are as follows:

          “… in the hearing, the applicant stated that her problems with the police began in 1998 with the marriage of her daughter.  The Applicant further stated that her family were well respected in the local community and that neither herself, her husband nor any member of her immediate family had any history of any involvement in politics.”

It was put to the Applicant in the hearing that this was inconsistent with her claims as set out in the submission by her adviser dated 20 January 2002, where it is claimed that when the Applicant was married to her husband he was involved in the Sikh Freedom Movement and was wanted by the police.  It is further claimed in this submission that the Applicant and her son were arrested and assaulted by the police in 1991.  The Tribunal is unconvinced by the adviser’s contention in the post – hearing submission that if the Tribunal asked more questions about 1991 then more would have been revealed.  The Tribunal put to the Applicant in the hearing the content of the written submissions.  The Applicant did not verify or elaborate on these claims, but rather responded both that she had a poor memory and that she was a simple housewife.  The Tribunal is unconvinced by this explanation.

Accordingly, in light of the Applicant’s evidence at hearing the Tribunal does not accept the claims set out in the submission to the Department that the Applicant or members of her family had a history of any involvement in any Sikh militant groups and that the Applicant and members of her family were in the past arrested and harassed by the police.

The Tribunal does not accept the Applicant’s claim that from 1998 onwards she was subject to physical and sexual abuse by the police in Punjab following the marriage in 1997 of her daughter here in Australia to a man who prior to his arrival in Australia was involved in the Sikh Student Federation.  The Tribunal does not accept this claim because the Tribunal considers it to be implausible in the following ways:

            “… the country information outlined above indicates that the Sikh militant groups are no longer active and that the Punjab police are no longer in pursuit of such persons (see, in particular, 6.117 - 6.119 of the UK Home Office Report).”

In light of this country information and given that neither the Applicant nor her immediate family have a history of involvement in Sikh militancy, the Tribunal considers it implausible that the authorities in India would pursue the Applicant on the strength of her daughter’s marriage in Australia to a person who in the past was involved in a Sikh militant group.

In addition, The tribunal considers it to be improbable that the police in the Punjab would know of the daughter’s marriage in Australia.

Considered collectively these points lead the Tribunal to reject the Applicant’s claim that she was harassed by the Punjab police because her daughter in Australia married a person who in the past was involved in a Sikh militant group.’

6                     It is plain that the Tribunal did not accept that the applicant suffered persecution for a convention reason.  The reasons why it did not do so were the internal inconsistencies in her story and the country information that it relied upon.  It is obvious that the details of what the applicant alleged the police had done to her were not important to the reasons of the Tribunal.  Her claims were rejected for the reasons it outlined, not because she failed to provide more detail of the alleged assaults.

7                     It is also clear from the transcript that the Tribunal was sensitive to the issue of what information the applicant was prepared to put before it.  It is also clear that the Tribunal handled that issue appropriately.  The transcript reveals the following exchanges:

‘TRIBUNAL MEMBER:  If we get to the point and there is something that I need to know more about, but you don’t think you can say it, then you can tell me, Look, there is more that I can tell you about this, but I can’t do it at the moment."

INTERPRETER:  Right.

TRIBUNAL MEMBER:  If we get to that situation and I think I need to know something that’s important, then we can organise to have a second hearing with a female interpreter.

INTERPRETER:  Right.

MR KHALSA (the migration agent):  And I have no problem leaving the room if that comes up.  There are certain things that she explained to me.

TRIBUNAL MEMBER:  Okay.

MR KHALSA:  I can sort of guess, but I don’t know.

TRIBUNAL MEMBER:  Okay.  Does your daughter speak English and Punjabi?

INTERPRETER:  Yes, she does.

TRIBUNAL MEMBER:  The other thing we could do, if you agree to that, is to ask your daughter to come in and ask the adviser and the interpreter to leave the room.

INTERPRETER:  Yes, that’s fine.

TRIBUNAL MEMBER:  We’ll see how it goes and assess that at the end.

INTERPRETER:  Right.’

8                     It is clear from the transcript that where the word ‘interpreter’ is used what is meant is an interpretation of the answer given by the applicant.  Later in the transcript there is some specific mention by the applicant of what the police did to her:

‘INTERPRETER:  They hurt me so much that I can’t even think any more about those things.

TRIBUNAL MEMBER:  We’ll try not to talk about these specific things, but I need to get the general story, but we don’t need to go over all the details.’

9                     Subsequent to that, the transcript reveals that the applicant began to cry.  The hearing was then adjourned to give the applicant an opportunity to talk to or find her daughter.  After it resumed, the Tribunal member asked whether the applicant had found her daughter.  The transcript then proceeds:

‘MR KHALSA:  No.  I was able to get hold of the son‑in‑law by phone though and he was suggesting that she is just very, very nervous and upset and suggesting we do something else – either get a female interpreter or she puts in a submission or something like this.

TRIBUNAL MEMBER:  I’m happy to receive a submission from you, obviously, after the hearing, but I would like to proceed.  I mean, we actually didn’t get a request for a female interpreter, which would have ‑ ‑ ‑

MR KHALSA:  I don’t actually do that unless they actually request it themselves in there.

TRIBUNAL MEMBER:  Yes.

MR KHALSA:  I can sort of guess and say that something might be there, but I don’t go into a lot of these details because they’re very sensitive, especially in the culture.

TRIBUNAL MEMBER:  Yes.

MR KHALSA:  I mean I’ve actually had some men that have been sexually abused in detention and they haven’t even told the tribunal about it.

TRIBUNAL MEMBER:  That’s correct.

MR KHALSA: They don’t tell me about it.  I get a hint of what’s there, but they won’t even tell me.

TRIBUNAL MEMBER:   Yes.

MR KHALSA:  So I leave it up to them of what they want to say.

TRIBUNAL MEMBER:  As I was saying - and you might like to explain it to the applicant - I don’t need to know all the detail and I’m not about to ask all that type of detail, but there are things I’d like to talk ‑ ‑ ‑

INTERPRETER:  I’m sorry I got upset, but I just can’t control when I recollect.

TRIBUNAL MEMBER:  No, that’s fine.  I understand that when you have to talk about these things that it all comes back.  Crying is very healthy, so feel free.  I’ll ask you some other questions and then we can come back and we can talk about things a bit generally.

INTERPRETER:  Okay.

TRIBUNAL MEMBER:  If you like, you can also organise to talk to your daughter or talk to a - are you her sole adviser or do you have females on your staff?

MR KHALSA:  No, I don’t have a female on the staff.  I am the sole adviser right now.  I’m getting another Punjabi, but male, coming with me.

TRIBUNAL MEMBER:  You can also give us things in writing.

INTERPRETER:   I don’t know writing.  I can’t write.

TRIBUNAL MEMBER:  No, sorry.  What you can do afterwards is talk to your daughter or talk to the adviser and I’ll accept written submissions.

INTERPRETER:  Right.’

10                  I note that the Tribunal member was in error in thinking that the applicant had not requested a female interpreter.  It would appear that she had done so, at least at one stage, though it would appear that later communications which should have been made had not renewed that request.

11                  There was later some general discussion about the allegations being made by the applicant in relation to the police.  Those allegations do reveal that the applicant was alleging that she had been raped.  Towards the end of the interview, the Tribunal member said to the applicant:

‘TRIBUNAL MEMBER:  Is there anything else you would like to tell me about that I haven’t asked you questions about?

INTERPRETER:  No.  As I told you, I’m an illiterate person.  I don’t even need a woman interpreter now.  I have given instance of what happened to me.

TRIBUNAL MEMBER:  Sure.

INTERPRETER:  You can work out yourself.

TRIBUNAL MEMBER:  That’s fine.

INTERPRETER:  I hope you’ve also understood that.

TRIBUNAL MEMBER: I have understood. …’

At the conclusion of the interview, the Tribunal member said to the applicant:

‘TRIBUNAL MEMBER: What I have asked is that your adviser will give me a post‑hearing submission, addressing the concerns that I have raised and if you think of anything else that you would have liked to have told me, and you haven’t, then you can also include that in the post‑hearing submissions.

INTERPRETER:  That’s fine.’

12                  Plainly enough, the applicant was not refused a reasonable opportunity to present her case, notwithstanding that there was no female interpreter present as there should have been.  Given that she was not refused a reasonable opportunity to present her case, there was no breach of the rules of natural justice (see Applicant WABZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 30).

13                  At the hearing before me, Mr Clisby, who appeared for the applicant, also argued that the applicant was too distressed properly to put her case.  He referred in that regard to the decision of the Full Court in Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126.  In my view, that was not an issue raised by any appeal grounds, notwithstanding that the applicant has already had the opportunity to file an Amended Application.

In any event, such a ground cannot be a proper basis for complaint in this case, given the clear invitation afforded to the applicant to file written submissions, an invitation that was taken up.  Written submissions were filed, although not in relation to the issues of the detail of sexual assaults that the applicant now complains of.

14                  For these reasons, the application is dismissed.

Associate:

Dated:              24 May 2004