Modh v Minister for Immigration & Multicultural Affairs [2000] FCA 1865

FEDERAL COURT OF AUSTRALIA

Modh v Minister for Immigration & Multicultural Affairs

[2000] FCA 1865

MIGRATION – test whether relocation not prevented by Convention reason is an error of law Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525 Perampalan v Minister for Immigration & Multicultural Affairs (1999) 84 FCR 274 Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

RAHUL KUMAR MODH v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 1151 OF 2000

GYLES J

SYDNEY

18 DECEMBER 2000

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1151 OF 2000

BETWEEN: RAHUL KUMAR MODH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 18 DECEMBER 2000

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal made on 16 October 2000 be set aside and remitted to that Tribunal to be dealt with according to law. 2. Respondent pay costs of the applicant. 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 N 1151 OF 2000

BETWEEN: RAHUL KUMAR MODH

APPLICANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 18 DECEMBER 2000

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal"), which, on 16 October 2000, affirmed the decision of the delegate of the respondent, the Minister for Immigration and Multicultural Affairs, to refuse an application for the grant of a protection visa. The application as filed did not contain any particulars. On about 8 December 2000 the respondent's solicitor (and my associate) received from counsel, who had given some advice to the applicant, a proposed amended application and submissions. The applicant, who appeared unrepresented, adopted what had been forwarded by counsel. The respondent does not consent to the amendment proposed, but does not put forward any prejudice if it is granted. In these somewhat unusual circumstances, I granted leave to amend the application in accordance with the draft included in MFI 1 and the argument proceeded on that footing. I also indicated that I would have regard to the submissions which had been forwarded as, in effect, those of an amicus. My acquiescence in what has occurred in this case should not be taken as any precedent for the future. 2 The grounds of the amended application are as follows: "1. In making the decision the subject of this application, the procedures that were required by s 430 of the Migration Act 1958 (Cth) ("the Act") to be observed in connection with the making of the decision were not observed, which constituted a reviewable error under s 476(1)(a) of the Act. Particulars (a) The Tribunal failed to make a finding about whether the Applicant was unable to relocate to other parts of India because his father would require him to work in the family grain business. (b) The Tribunal failed to make a finding about whether there had been a sustained or systematic failure of state protection in relation to Muslim-Hindu clashes in the Applicant's state, nor whether any lack of protection was such as to indicate that India was unable or unwilling to discharge its duty to establish and operate a system for protection against persecution. 2. The decision involved an error of law, being an error involving an incorrect interpretation of the applicable law. Particulars (a) The Tribunal, in considering whether the Applicant was able to relocate within India rejected his reasons for being unable to relocate (or some of them) on the basis that those reasons "do not link the applicant's claim to the Convention". This involved an error of law. It is not part of the test for whether a person can reasonably relocate that each reason that prevents such relocation is a Convention reason. (b) The Tribunal, in considering whether the Applicant had a well-founded fear of persecution, considered that his fear was not well-founded because there "is no reason the authorities will not offer the applicant the same protection they offer any other citizen of India". This is the wrong test. It is not sufficient to find that the protection offered is offered on a non-discriminatory basis; there must also be a positive finding that there are mechanisms capable of offering protection at all." It will be seen that there is a symmetry between the particulars of each ground. 3 The applicant, who is of the Hindu faith, fears that if he has to go back to his home in India he will be subject to violence between the Hindu and Muslim communities. He comes from a town in Gujrab state where, apparently, the ratio of Hindu to Muslim is 50:50 and the police consist of representatives of each. The applicant's father is a prominent businessman, and a member of the Hindu community in his home town.