Pal v Minister for Immigration & Multicultural Affairs [2000] FCA 1184

FEDERAL COURT OF AUSTRALIA

Pal v Minister for Immigration & Multicultural Affairs [2000] FCA 1184 YASH PAL v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS S 12 OF 2000 MANSFIELD J 31 JULY 2000 ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY S 12 OF 2000

BETWEEN: YASH PAL

APPLICANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: MANSFIELD J

DATE: 31 JULY 2000

PLACE: ADELAIDE

REASONS FOR JUDGMENT 1 This is an application for review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 11 February 2000. The Tribunal affirmed the decision of a delegate of the respondent not to grant to the applicant, and to his wife and children, a protection visa under the Migration Act 1958 (Cth) ("the Act"). It is plain that, to qualify for that visa, the delegate of the respondent and, on review, the Tribunal had to be satisfied that the applicant is a person to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (using those terms as defined in the Act) ("the Convention"). In practical terms, that meant that the applicant had to fall within the definition of "refugee" in Article 1A(2) of the Convention, namely 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." 2 No separate case was presented that Rita Kumari, the wife of the applicant, or their children Simona, Yash and Amarpel Singh separately had claims to be refugees as defined in the Convention. Their claims stood or fell with the claim of the applicant, as they sought the visa simply because they were members of his family unit. 3 The applicant was born in the Punjab in India on 4 April 1959. He is an Indian citizen. He completed ten years of secondary eduction and then between 1974 and 1992 worked either as an agricultural secretary or in sales, at least for part of the time. He claimed also to have been an active secretary of a local branch of the Shiv Sena political party, a party which supports or promotes the interests of Hindus in India, including in the Punjab. 4 In January 1993 the applicant and his family moved to Italy to work on a work permit. He left India on a passport in his own name and in the normal manner. His evidence was that he then remained in Italy for much of the period until he arrived in Australia. He arrived in Australia on a tourist visa on 18 February 1997, having procured that visa in December 1996. In the meantime he had visited the United States and Holland for brief periods during 1995. It also emerged in the course of his evidence to the Tribunal that he had returned to India for a period of a month or two in the early part of 1996 and again in the early part of 1997. 5 The applicant's claim was that he feared persecution because of his political beliefs. He said that he had joined the Shiv Sena party in or before 1988. At one point he said it was in 1988 but later, in his evidence to the Tribunal, he said he had been a member of Shiv Sena before that time. He was the secretary of the local unit in his town of Qadian between 1988 and 1993. He claimed to have been involved, in that capacity, in organising peaceful demonstrations and marches against Sikhs or, more accurately, against the treatment that Hindus in the Punjab were receiving from Sikhs, and also to have been involved in fundraising activities to help Hindus who had been injured or widowed by Sikh activists. He claimed also to have left India in 1993 because he feared Sikh activists and he did not think that the Indian authorities could protect him. He asserted in his claims to the Tribunal that, whilst he was in India, he had been attacked by Sikh extremists in 1989 or thereabouts and had fortunately avoided serious injury. He also claimed that in 1993 his brother-in-law had been kidnapped by Sikh extremists and that those extremists were also looking for him. 6 The applicant therefore presented a claim as a prominent member of the Shiv Sena party who was or was likely to be on a Sikh extremists' "hit list", and that he still feared that, if he were to return to India, Sikh activists would lay or cause false charges to be laid against him or to kill him. Before the Tribunal he also claimed that he feared Sikh militants, now backed by leaders of the Akali government in the Punjab, would be able to severely injure him or damage him or kill him if he were to return to India. He claimed also to be unable to relocate to any other part of India. 7 Having recited the applicant's claims in considerable detail, as they had been presented both in his initial application and submissions to the Department, in an interview with an officer of the Department and in written submissions to the Tribunal and in his oral evidence to the Tribunal, the Tribunal then addressed its findings and reasons for those findings. 8 It found that the applicant had given inconsistent evidence in a number of respects and that he had embellished his evidence over the passage of time, in part in the light of the reasons for decision of the delegate of the respondent rejecting his claim. Ultimately the Tribunal said: