SZNRC v Minister for Immigration and Citizenship

[2009] FCA 1454

FEDERAL COURT OF AUSTRALIA

SZNRC v Minister for Immigration & Citizenship [2009] FCA 1454

Migration Act 1958 (Cth) ss 424(3)(a), 424B
Federal Magistrates Court Rules 2001 (Cth) r 44.12(1)(a)

SZNRC v MINISTER FOR IMMIGRATION & CITIZENSHIP and ANOR

NSD 1017 of 2009

EMMETT J
25 NOVEMBER 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1017 of 2009

BETWEEN:

SZNRC
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE OF ORDER:	25 NOVEMBER 2009
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application for leave to appeal be refused.

2.The applicant pay the First Respondent’s costs of the application.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1017 of 2009

BETWEEN:

SZNRC
Applicant

AND:

MINISTER FOR IMMIGRATION & CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	EMMETT J
DATE:	25 NOVEMBER 2009
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant seeks leave to appeal from orders of the Federal Magistrates Court made on 26 August 2009.  By those orders, the Federal Magistrates Court dismissed a proceeding brought by the applicant seeking review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). The Federal Magistrates Court dismissed the proceeding pursuant to rule 44.12(1)(a) of the Federal Magistrates Court Rules 2001 (Cth), on the basis that the applicant had failed to show an arguable case of jurisdictional error on the part of the Tribunal.

2. The applicant is a citizen of India, who arrived in Australia on 23 October 2008.  On 5 December 2008, he applied to the first respondent, the Minister for Immigration & Citizenship (the Minister), for a protection visa under the Migration Act 1958 (Cth) (the Act).  On 23 February 2009, a delegate of the Minister refused to grant a protection visa.  The applicant then applied to the Tribunal on 11 March 2009 for review of the delegate’s decision.  On 19 May 2009, the Tribunal affirmed the decision not to grant a protection visa to the applicant. 

3. The applicant then commenced a proceeding in the Federal Magistrates Court on 10 June 2009 and filed an amended application on 14 August 2009.  The amended application raised several grounds as follows: 

   (1)The Tribunal failed to consider properly the test whether the applicant would suffer serious harm if asked to relocate in India. 

   (2)The Tribunal member failed to honour an undertaking to give the applicant an opportunity to make written submissions about inconsistencies in his evidence.

   (3)The Tribunal failed to analyse properly the future harm that the applicant may face if he has to go back to India. 

   (4)The Tribunal failed to assess or carry out the real chance test before dismissing the applicant’s claim. 

   In giving reasons for dismissing the application, the Federal Magistrate dealt with each of those grounds.

4. In his proposed notice of appeal, the applicant specifies one ground, namely, that the Federal Magistrates Court failed to consider the ground of the applicant’s appeal consisting of an error of law in that the Tribunal failed to comply with s 424 of the Act. The ground in the proposed notice of appeal was particularised. The applicant said that the Tribunal invited the applicant to give information in addition to that which the Tribunal had obtained and that that invitation was not given in accordance with s 424(3)(a) and s 424B of the Act. The applicant made no effort, when called upon to address the Court in support of his application for leave, to develop either the grounds of review before the Federal Magistrates Court or the proposed ground of appeal to this Court.

5. As the Federal Magistrates Court observed, the Tribunal was prepared to accept that the applicant faced a real chance of serious harm for a Convention reason, should he return to his home village.  However, the Tribunal concluded that it was reasonable for the applicant to relocate to another part of India.

6. The applicant claimed that he lived in a village that was an island surrounded by rivers.  He claimed that the population of the village is largely illiterate.  The inhabitants of the village follow the Thiyya sect of Hinduism, under which the followers are bound to follow the orders of their priest.  The applicant claimed that he was ordered by the village priest to marry his nine year old cousin.  He claimed that because he believed that the marriage was unlawful under Indian law, he refused to comply with the direction of the priest.  The Tribunal accepted that the priest was a powerful man in the village and that the villagers had to obey him.  The Tribunal also accepted that if the applicant were to return to his village, he would be forced to marry his cousin.  If he tried to refuse, there would be a real chance that he would be excommunicated and would face serious harm from the priest and the priest’s followers.

7. However, the Tribunal found that it would reasonable for the applicant to relocate to a different locality or a different part of India, away from his home village.  The Tribunal considered the applicant’s suggestion that he would be found if he relocated, because he would need a job and would not be able to get a job without his family’s support.  The Tribunal also considered the applicant’s assertion that the priest, through his political and police connections, would trump up a case against him if he returned to India.  The Tribunal found, however, that there was no real chance that he would be searched for and found by the village priest if he located to another part of India. 

8. The Tribunal put to the applicant at the hearing that he is young, educated and has trade qualifications and has proven his capacity to adapt to, and to survive in, an alien environment by being able to live in Australia over the past few months and to support himself financially by engaging in casual employment.  The Tribunal considered that the applicant had provided no persuasive evidence to suggest that he would not be able to earn, or would be prevented from earning, a living without support from his family.  The Tribunal rejected the applicant’s claim that he would be unable to find a job in India because he would not have a free life and would not be able to enter into any other marriage.  The applicant provided no reasons as to why he would be unable to enter into another marriage elsewhere in India and there was no evidence before the Tribunal to suggest that that was likely.  On the basis of the evidence before it, the Tribunal was satisfied that, in all the circumstances, that it would be reasonable and practicable for the applicant to relocate to a different part of India.

9. The applicant appeared in person with the assistance of an interpreter.  When invited to address the Court in support of his application for leave to appeal, the applicant referred to two matters.  First, he said that he did not have sufficient time to provide further documents to the Tribunal.  He accepted, however, that he had not asked for further time.  The second matter was that the interpreter did not explain to him that he could ask for further time.  That is not a matter that was raised before the Federal Magistrates Court. 

10. It is not apparent to me that there was any error on the part of the Federal Magistrates Court in concluding that there was no arguable case of jurisdictional error on the part of the Tribunal.  There is certainly no substance in the proposed ground of appeal.  Accordingly, the grant of leave to appeal would be futile, since the appeal would necessarily be dismissed.  Accordingly, the application for leave to appeal should be refused.

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:       7 December 2009

The Applicant appeared in person
Solicitor for the First Respondent:	DLA Phillips Fox

Date of Hearing:	25 November 2009
Date of Judgment:	25 November 2009