Jaswal, Vikram Singh v Minister for Immigration & Multicultural Affairs [1998] FCA 1243

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 229 of 1998

BETWEEN: VIKRAM SINGH JASWAL

Applicant

AND: MINISTER FOR IMMIGRATION

AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: TAMBERLIN J

DATE: 24 September 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT Ex-Tempore Judgment This is an application for an order of review in relation to a decision of the Refugee Review Tribunal ("RRT") delivered on 23 February 1998. The applicant is a citizen of India. He arrived in Australia on 2 April 1996. On 29 April 1996, he lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs under the Migration Act 1958 (Cth) ("the Act"). On 27 March 1997, a delegate of the Minister for Immigration and Multicultural Affairs refused to grant a protection visa and on 26 April 1997, the applicant sought review of that decision. The RRT refused to grant the application for review and dismissed the application. On the matter coming on for hearing before me this morning, the applicant applied for an adjournment. Insofar as the application was based on an inability to prepare his case or assemble the relevant documents, I am not satisfied that there is any substance in the application. The application was filed on 23 March 1998 in respect of the judgment delivered several weeks earlier. It seems to me that the applicant has had ample time to prepare a case on the hearing, although I do appreciate that because he has no legal qualifications he has experienced considerable difficulties in presenting his case. Insofar as the application for an adjournment rests on a suggestion that the applicant was not able to give all the evidence that he wished to on the hearing before the RRT, my attention has been drawn by counsel for the Minister to the transcript. At the outset of the proceedings the decision-maker asked the applicant whether he had any further documentary material to give to the RRT and the interpreter answered "no". In the course of the hearing, there was a reference to an arrest warrant and in relation to this, the applicant indicated that he did not have a copy of the warrant. However, he made no application to have the proceedings adjourned in order to get it. Perhaps more importantly there is no indication that he made any attempt since the hearing before the RRT to obtain a copy of the warrant. Over six months have passed since the hearing date. Moreover, at the end of the hearing before the RRT, the applicant was asked by the decision-maker whether there was anything further that he wished to say and the applicant, through his interpreter, made some short remarks and the proceedings concluded. Having regard to the transcript, I am satisfied that the applicant had a full opportunity to say everything he wished and that since the date of that hearing he has had a chance to get the arrest warrant which was referred to. However, I am not satisfied that even if the warrant were produced it would necessarily have any significant impact on the decision of the decision-maker. The decision of the RRT turned basically on the view of the decision-maker that the reasons given and the evidence furnished by the applicant was not credible. He sets out in some detail the history which the applicant had advanced. It was suggested that in June or July 1995, the applicant was approached by two persons who seemed to know a deal of information about him and who appeared to be quite friendly and were aware that he had recently returned from working in the Middle East. They said that they could help him return to work on a long term contract in the Middle East as they had a "friend" who needed someone to work there. They took his passport to arrange the visa. The applicant was grateful and asked if he could help them. They asked him to help them by delivering a few loads of arms from the Kashmir border near his village to New Delhi. The smuggled arms were to help the Kashmir Liberation Front and the Khalistan commandoes in the Punjab. The applicant claimed to be shocked and went to the police. The police did not believe his tale. One of the men, who he had earlier encountered, came to see him and told him that he had committed a great blunder in informing the police and reminded the applicant that he still had his passport. They threatened him and said if he did not help them he would be killed by them or by the police. On 13 July 1995, shortly after this incident, the applicant claims that the police raided his home looking for arms. He was away but he says that they abused and beat his father and told him to send the applicant to the police station. The applicant's case is basically that if he is returned to India to the place where he was previously residing then he will be faced with danger from both the police and from the gun running friends or the group to which those persons belonged. He claims that he has a well-founded fear of persecution based on his political opinions. During the course of the hearing, it is evident from the transcript that the decision-maker posed to the applicant the problems which he saw in the story and indicated that he found it difficult to accept the evidence which had been given as being plausible or credible. It was essentially on this ground that the decision-maker made the finding that he could not accept the application on the basis of what he saw as a chance encounter with alleged arms smugglers. He did not accept that it was likely that their hostility would continue some two years later, although in fairness it must be said that the applicant indicated that his family had informed him that their house was being watched. The finding of the RRT was that the story was fabricated to provide a basis for a claim for refugee status. On the evidence as a whole the RRT was not satisfied that the applicant was a refugee as defined by article 1A(2) of the International Convention Relating to the Status of Refugees as Amended by the 1967 Protocol. A number of grounds were raised in the application for an order of review. The first ground is that the Minister or the RRT erred in incorrectly interpreting the applicable law. However, no argument has been advanced as to the particular legal error of interpretation, which it is alleged that the RRT made. It is also said, in a somewhat rolled up form, that the RRT incorrectly applied the law to the facts and failed to give genuine proper and realistic consideration to the merits of the case. Having regard to the transcript and the reasons given by the RRT, I do not see any force in this argument. It is well settled that the RRT can take into account in forming its view the demeanour of the witness and the impression which is made by any witnesses before it and may give appropriate weight to that view. There is no necessity, as the cases clearly establish, for the RRT or the Minister to adduce any opposing evidence. This is not a case in which there is any onus one way or the other and the decision must be made on the evidence as a whole at the end of the hearing as to whether the applicant is a refugee within the meaning of the convention. There is, in my view, no substance in the suggestion that it is a proper ground for the application in this case that the RRT or the Minister gave no chance to provide supporting evidence to the claims. Insofar as there is a finding of implausibility or lack of credibility, I think on the evidence it was open to the decision-maker to reach that view. The recounting of the facts given by the applicant did appear to have some inconsistency in it and if this is coupled with the impression made on the decision-maker, I think it was open to reach the conclusion which the decision-maker did. In all the circumstances, I am not satisfied that the decision-maker failed to give proper weight to the evidence which was adduced. I can find no error in the transcript or on a reading of the materials before the RRT, which would warrant an order of review being granted. Accordingly, I dismiss the application for review. However, I am not disposed to grant costs in the matter having regard to the evidence as to the relative impecuniosity of the applicant in this case. Those are my reasons. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin