Kumar, Harjinder v Minister for Immigration & Multicultural Affairs [1998] FCA 1572

FEDERAL COURT OF AUSTRALIA

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NG 326 of 1998

BETWEEN: HARJINDER KUMAR

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FINN J

DATE OF ORDER: 3 AUGUST 1998

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: The application be dismissed. 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 NG 326 of 1998

BETWEEN: HARJINDER KUMAR

Applicant

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

JUDGE: FINN J

DATE: 3 AUGUST 1998

PLACE: SYDNEY

REASONS FOR JUDGMENT The applicant, Harjinder Kumar failed to satisfy the Refugee Review Tribunal ("the Tribunal") that he was a refugee because he was disbelieved. The Tribunal expressed its conclusions on the applicant in the following ways: (i) "I do not accept the applicant as a credible witness. His evidence contains a number of inconsistencies and contradictions. I find his claims to be implausible. The negative assessment of his credibility was reinforced by my observations of his demeanour, especially when pressed on the inconsistencies in his evidence." (ii) "I am satisfied that the applicant fabricated the entirety of his claims in the hope of gaining refugee status." A significant portion of the Tribunal's reasons was devoted to its questioning of the applicant concerning inconsistencies in his evidence and his responses thereto. Mr Kumar now seeks an order of review of the Tribunal's decision under Part 8 of the Migration Act 1958 ("the Act"). While various grounds were advanced in the original, and then amended, application, only one ground has been prosecuted at the hearing. It is that suggested by the decision in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300. It is claimed that the Tribunal failed to observe procedures required to be observed by it: the Act, s 476(1)(a); in that in reviewing the decision it did not act according to substantial justice and the merits of the case: the Act, s 420(2)(b). Four matters were relied upon to evidence this though the connection of two at least of these to matters procedural is not obvious. I will consider them individually in turn below. I gave leave to a migration agent to represent Mr Kumar at the hearing. He was of some assistance in identifying the precise matters of complaint relied upon by Mr Kumar in the present application. Beyond that his assistance stopped. Because of the very small compass within which the matters complained of fall it is unnecessary to provide a narrative of the various matters advanced to make out Mr Kumar's claim to refugee status and of the Tribunal's treatment of them. All I need say by way of prefatory observation is that: (i) he is an Indian citizen who arrived in Australia on 3 September 1992; (ii) on 10 December 1992 he lodged an application for refugee status and appended to it was a handwritten document outlining the basis of his claim; (iii) the application was rejected and on 29 June 1994 the Tribunal affirmed that rejection; and (iv) on 14 October 1994 Mr Kumar lodged the present application for a protection visa which was refused both by the delegate of the respondent Minister and by the Tribunal. The inconsistencies and contradictions to which the Tribunal referred in its credibility finding relate to the differing accounts of events and circumstances that Mr Kumar gave at the various stages in the applications/proceedings referred to above.