SZNRC v Minister for Immigration - [2009] FMCA 833

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZNRC v MINISTER FOR IMMIGRATION & ANOR

[2009] FMCA 833

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – interlocutory dismissal of show cause application – no arguable case of jurisdictional error.

Federal Magistrates Court Rules 2001 (Cth)
Migration Act 1958 (Cth), ss.91R, 424A

Randhawa v Minister for Immigration (1994) 52 FCR 437

Applicant:

SZNRC

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1385 of 2009

Judgment of:

Driver FM

Hearing date:

26 August 2009

Delivered at:

Sydney

Delivered on:

26 August 2009

REPRESENTATION

The Applicant appeared in person

Solicitors for the Respondents:

Ms E Baggett
DLA Phillips Fox

INTERLOCUTORY ORDERS

The application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
The applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1385 of 2009

SZNRC

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 19 May 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The applicant is from India and arrived in Australia on 23 October 2008. He applied to the Minister’s Department for a protection visa on 5 December 2008. The Minister’s delegate refused that application on 23 February 2009. The applicant sought review by the Tribunal on 11 March 2009. The Tribunal was unable to make a favourable decision on the papers and invited the applicant to a hearing. The applicant attended on 14 May 2009 to give evidence and present arguments. He was assisted by a Malayalam interpreter.
The applicant confirmed the accuracy of his protection visa claims. Those were that he lived in a village which was an island surrounded by rivers. The population of the village is largely illiterate. The inhabitants of the village follow the Thiyya sect of Hinduism. The followers are bound to follow the orders of their priest. The Thiyya community follows peculiar marriage customs. Marriages between a brother’s son and a sister’s daughter are quite common. A girl’s marriage has to be solemnised before the age of 10. In accordance with Thiyya custom, the applicant was ordered by the village priest to marry his nine year old cousin. The applicant knew the marriage was unlawful under Indian Law and refused to comply. He fears for his safety in consequence of his refusal.
The Tribunal, despite some reservations as to the applicant’s credibility, accepted that there was an attempt by the village priest to force the applicant to marry his minor paternal cousin. The Tribunal accepted that the priest was a powerful man in the village and that the villagers had to obey him. The Tribunal accepted that if the applicant were to return to the village, he would be forced to marry his cousin. If he refused, there was a real chance that he would be excommunicated and face serious harm by the priest and his followers. I take this to be a finding by the Tribunal, in accordance with s.91R of the Migration Act 1958 (Cth) (“the Migration Act”), that the applicant faced a real chance of serious harm for a Convention reason should he return to his home village.
However, the Tribunal found that it would be reasonable for the applicant to safely relocate to a different locality or a different part of India away from his home village. The Tribunal, in its reasons, dealt with that issue of relocation, noting the decision of the Federal Court in Randhawa v Minister for Immigration (1994) 52 FCR 437 per Black CJ at 440 to 441. The Tribunal noted that the applicant asserted that he would be at risk anywhere in India but did not accept that assertion. The Tribunal found that the villagers would not pursue the applicant around India and that it was practicable for him to relocate.
These proceedings began with a show cause application filed on 10 June 2009. The applicant now relies upon an amended application filed on 14 August 2009. That application contains several grounds which I incorporate in this judgment:
1. The Tribunal failed to consider properly the test whether the applicant would suffer serious harm as per sec.91R(2) of the Migration Act (which is a mandatory jurisdictional requirement for the Tribunal to do), if they asked to relocate in India. The Tribunal failure to satisfy this statutory obligation was a serious jurisdictional error caused by the Tribunal.
2.The Tribunal member had failed to honour his undertaking. The requirement to put information to an applicant is contained in S424A which relevantly states:
424A applicant must be given certain information
1. Subject to subsection (3), the Tribunal must:
a) Give to the applicant, in the way that the Tribunal consider appropriate in the circumstances, particulars of any information that the Tribunal consider would be the reason, or a part of the reason, for affirming the decision that is under review; and
b) Ensure, as far as is reasonably practicable, that the applicant understand why it is relevant to the review and
c) Invite the applicant to comment on it.
It is my case that the Tribunal ignore its undertaking to give me an opportunity to make written submission about the inconsistencies in my evidence and lacked credibility; therefore the Tribunal had erred by denying me procedural fairness in respect of this issues. If I would provide a submission prior to [Tribunal] decision, I believe that I would have a different decision.
Therefore … I submit that the Tribunal failed to analyse properly the “future harm” that I may face if I have to go back to India.
Hence, due to this failure, the Tribunal had committed a serious jurisdictional error by failing to assess or carry out the ‘real chance’ test, before dismissing my claim.
The applicant also relies upon an affidavit filed with his original application. I received paragraphs 1 and 2 of that affidavit as evidence and paragraph 3 as a submission. The gist of paragraph 3 of the affidavit is repeated in the amended application. I also have received as evidence the court book filed on 26 June 2009.
The applicant has failed to disclose an arguable case of jurisdictional error by the Tribunal. He first asserts that the Tribunal failed to properly apply the test of serious harm pursuant to s.91R(2)(a) of the Migration Act. However, the Tribunal did find that the applicant would face serious harm should he return to his home village. The Tribunal found that he could avoid that harm by relocating.
Secondly, the applicant asserts a breach of s.424A of the Migration Act. However, he misconstrues that section as entitling him to make further written submissions about inconsistencies in his evidence going to his credibility. There was no information requiring disclosure by the Tribunal to the applicant pursuant to s.424A. The Tribunal decision turned upon the applicant’s own evidence. Further, despite having some doubts, the Tribunal accepted the credibility of the applicant’s claims. There was no need for the applicant to provide further submissions concerning inconsistencies in his evidence.
The applicant also asserts that the Tribunal failed to analyse properly the future harm that he might face if he has to go back to India. There is no substance to that assertion. The Tribunal accepted the risk of future harm in the applicant’s own village but found that the harm could be avoided by relocation. The finding on relocation was open to the Tribunal on the material before it, and the Tribunal’s analysis was consistent with the Full Federal Court decision in Randhawa. I see no arguable case of error by the Tribunal in its approach to the relocation issue.
I find that no arguable case of jurisdictional error by the Tribunal has been raised, and neither is any arguable case of error apparent to me from my own reading of the material. I will order that the application is dismissed, pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth).
Costs should follow the event in this case. Scale costs would be $2,935. The Minister seeks $2,800. The applicant asserted an inability to pay, but I am satisfied that costs of not less than $2,800 have been reasonably and properly incurred on behalf of the Minister, assessed on a party and party basis. I will order that the applicant is to pay the first respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $2,800.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 August 2009