SZOLW v Minister for Immigration & Anor [2010] FMCA 699 (3 September 2010)

Last Updated: 13 September 2010

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOLW v MINISTER FOR IMMIGRATION & ANOR

[2010] FMCA 699

MIGRATION – Review of RRT decision – applicant a citizen of India – where Tribunal did not accept applicant’s claims that she had married a member of a higher caste and that he subsequently deserted her in Australia – whether Tribunal committed jurisdictional error by refusing to give applicant an adjournment to submit further documents including marriage certificate – where other grounds of review not particularised.

Migration Act 1958 (Cth)

Applicant:

SZOLW

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1305 of 2010

Judgment of:

Raphael FM

Hearing date:

3 September 2010

Date of Last Submission:

3 September 2010

Delivered at:

Sydney

Delivered on:

3 September 2010

REPRESENTATION

For the Applicant:

In person

Counsel for the Respondents:

Mr H Bevan

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $4,750.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 1305 of 2010

SZOLW

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of India who arrived in Australia on
   11 October 2009 and applied to the Department of Immigration and Citizenship for a protection (Class XA) visa on 23 November 2009. On 18 February 2010 a delegate of the Minister refused to grant a protection visa and, on 15 March 2010, the applicant applied for a review of that decision from the Refugee Review Tribunal. She attended a hearing before the Tribunal, having been assisted by a Migration Agent and, on 17 May 2010, the Tribunal determined to affirm the decision not to grant the visa. The decision was handed down on 18 May 2010.
2. The applicant’s claim to be a person to whom Australia owed protection obligations was said to arise out of the fact that she was a member of the Paravan caste and that she had married, in India, a member of the Nair caste, who came from a family of considerable wealth. On the other hand, she had no money herself and was unable to provide a dowry even though her marriage was, apparently, undertaken in secret and against the objections of both her husband’s family and her own. The applicant told how, after marrying in Cochin, she and her husband travelled around India and then came to Australia because she believed that her husband’s parents were trying to kill her. After they arrived in Australia, which they did in October 2009, they stayed in Melbourne for about four days. Apparently on the fourth day the husband walked out on his wife and was never seen again by her. She says that he has returned to India, married someone else, and that his new in-laws have connections with the BJP, which adds a political element to the allegations of persecution that she fears should she return to India.
3. In questioning by the Tribunal, the applicant was unable to produce any evidence of the alleged marriage and the Tribunal found it difficult to understand how her claims contained a Convention nexus. The applicant told the Tribunal that she did not believe she would receive adequate state protection should she return, particularly given the new wife’s family’s political connections. The Tribunal accepted that the applicant travelled to Australia with a man of the name given by her of her husband, but did not accept that she was actually married to him. The Tribunal did not accept that the applicant was a witness of truth, believing that she had created her claim in order to obtain the visa.
4. The Tribunal felt that the applicant’s explanation of the circumstances in which she left her husband and became married to him were not sufficiently explained, and that she could not explain the development of the relationship in any great depth “as would be expected of a person describing her courtship and her decision to marry a person from a higher caste.” The Tribunal also had difficulties in accepting the applicant’s story about what occurred in Melbourne. The Tribunal could not understand how it was the applicant, who had been deserted on the fourth day in a strange country, managed to make arrangements to fly from Melbourne to Sydney on the same day, although she says she could not remember the name of the airline upon which she flew nor how she obtained a ticket.
5. The Tribunal accepted that women were a particular social group in India but found that the independent country information revealed that India was a country that had a longstanding stable multi-party federal parliamentary democracy. The Tribunal accepted that there was an effective judicial and law enforcement agency in Kerala and that, although the court system is slow, it could not accept that women suffer discrimination within the legal system or lacked protection. The Tribunal was satisfied that the applicant could access non-discriminatory protection if she feared private individuals or groups in India:
   • “On the evidence before me, I am satisfied that there is effective and adequate State protection available to the applicant in Kerala, India. I am satisfied that such protection would not be denied or withheld to the applicant for a convention-related reason. I am satisfied that the real chance of harm if the applicant were returned to India or Kerala is remote.” [CB 129]
6. On 11 June 2010, the applicant filed an application in this Court seeking a review of the Tribunal’s decision. She indicated that there were three grounds of application:

(1) Jurisdictional error

(2) Breach of procedural error

(3) Breach of natural justice.

The applicant did not expand on these reasons by way of an amended application or by way of submissions to this Court. When she came here she told me that the reason she believed that the Tribunal had made an error of law in the way in which it had reached its decision was because it had refused to give her an adjournment in order to submit certain documents, including her marriage certificate.

7. There is no evidence that the applicant actually asked for an adjournment for that purpose but, as Mr Bevan who appears on behalf of the Minister helpfully pointed out, at [67] [CB 127] the Tribunal indicates:
   • “Thirdly, the applicant has not produced a marriage certificate or any other information, such as photographs or declarations from friends, to support her claim of marrying in India. When put to her that she had not produced a marriage certificate to the department, the applicant told the Tribunal that she needed time to obtain a marriage certificate from India. The applicant was put on notice by the Department that her marriage was an issue in her protection visa application. The applicant was notified by the Tribunal, by letter of 26 March 2010, that the Tribunal had considered the material before it and was unable to make a favourable decision on that information alone. She was invited to attend the Tribunal hearing, and attached to that Tribunal letter was information about the Tribunal hearing informing the applicant that the Tribunal hearing was her opportunity to give evidence and present arguments to the Tribunal. In response, she provided a submission to the Tribunal prior to the hearing. The independent evidence cited above indicates that it is easy to obtain fraudulent documents in India. The applicant did not provide a marriage certificate to the Tribunal. I am of the view that her request to obtain a marriage certificate from India at the Tribunal hearing is an attempt to obtain additional time in the processing of her application.”

The Tribunal has a discretion as to whether or not it should grant an adjournment. It exercised that discretion against the applicant for the reasons given and set out above.

8. There is nothing in the manner in which the Tribunal exercised its discretion that appears to me to be whimsical, contrary to the evidence, or might, in some other way, indicate that the discretion is miscarried. To the extent that the applicant now makes the claim, which she does, it must be dismissed. The other grounds raised by the applicant do not assist the Court. No jurisdictional error is defined. The breach of procedural error is not particularised and neither is the breach of natural justice. The Tribunal’s responsibilities with regard to natural justice are clear set out in codified form in Division 4 of the Migration Act 1958. The best evidence of what occurred at the Tribunal hearing, being the decision record, does not reveal, on its face, any breach.
9. In these circumstances, there is nothing that I can do to assist the applicant in her request to have this matter returned to the Tribunal for further consideration. The application is dismissed. The applicant shall pay the respondent’s costs, which I assess in the sum of $4,750.00.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 10 September 2010