SZAZX v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1229

FEDERAL COURT OF AUSTRALIA

SZAZX v Minister for Immigration and Multicultural and Indigenous Affairs
[2004] FCA 1229

SZAZX v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 1185 of 2004

WILCOX J
14 SEPTEMBER 2004
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 1185 of 2004

BETWEEN:	SZAZX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	14 SEPTEMBER 2004
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

2.The appellant pay the costs of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs.

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 1185 of 2004

BETWEEN:	SZAZX APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	WILCOX J
DATE:	14 SEPTEMBER 2004
PLACE:	SYDNEY

REASONS FOR JUDGMENT

WILCOX J:

1. This is an appeal against a decision of Federal Magistrate Barnes dismissing an application to review a decision of the Refugee Review Tribunal (‘the Tribunal’).  The Tribunal had affirmed a decision of a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs, to refuse to grant to the appellant a protection visa.

2. The magistrate's decision deals comprehensively with the grounds argued before her.  To the extent that those grounds are relied on today, I adopt what was said by her Honour.  In fact, only one ground was argued before me; namely, that the Tribunal erred in law in holding that the circumstances surrounding an injury sustained by the appellant were irrelevant to the appellant’s application for a protection visa. 

3. It appears the appellant sustained an injury, I gather whilst at work, on a date between his arrival in Australia and the Tribunal hearing.  Because of his injury, there was some delay in the Tribunal hearing.

4. At the hearing, on 3 June 2003, the appellant handed documents to the Tribunal member.  Their nature is not revealed by the material before me, nor are they reproduced in the appeal papers, but they apparently related to his injury.  The Tribunal member indicated that the documents were not relevant and returned them to the appellant.  Mr Andrew Campbell, counsel for the appellant, suggested to me that the documents indicated that the appellant suffered a serious back injury.  The appellant did not inform the Tribunal member as to the reason why he was tendering the documents or what relevance they might have.  If they were medical reports, it seems likely that the Tribunal member regarded the material as going to the question whether there should be a further adjournment of the hearing of the matter.  Whatever the position, the Tribunal member proceeded with the hearing.

5. The Tribunal member said he was not satisfied that the appellant had been targeted or persecuted during his lifetime in India by reason of his political opinion.  This was the basis upon which the appellant claimed he had a well-founded fear of persecution if he was returned to India.

6. As it seems to me, that finding necessarily meant that the appellant’s application for a protection visa must fail.  However, the Tribunal member went on to consider whether, in any event, the appellant could relocate to another part of India.  The Tribunal member noted that the appellant had a ‘reasonable education by Indian standards’, that he spoke the national language, Hindi, and had at least some familiarity with English.  The appellant had told the Tribunal that he had not needed to work for his living in India; he had lived off the rents of properties that he owned.  The Tribunal member thought there would be no practical difficulty about the appellant relocating elsewhere in India.  This was, of course, a finding of fact.  It is not vulnerable to review in this Court.

7. The appellant’s contention, however, is that the Tribunal erred in law because the Tribunal member failed to take into account what was on the tendered documents.  Mr Campbell speculated that the documents might have indicated that the appellant had had a spinal operation that affected his ability to work and, perhaps, affected him in other ways.  Perhaps they did; I do not know because the documents are not available.

8. I asked Mr Campbell to assume that the documents went so far and to indicate to me how they could logically affect the Tribunal’s conclusion about the ability of the appellant to relocate elsewhere in India.  Mr Campbell was unable to offer any explanation of this.

9. I cannot agree with the proposition that the Tribunal committed an error of law in failing to have regard to whatever it was that was in the documents.  Even if the Tribunal had needed to make a finding about the appellant’s ability to cope with living in other parts of India, it is difficult to see how that information concerning the detail of his injury would have been relevant to that task.  Without making any finding of fact, because that is not a matter for the Court, I comment that, to the extent that the appellant may need to employ assistance because of his injury, this might be cheaper in India than in Australia.

10. In a sense, this is all by the way.  The appellant did not establish that he had been targeted or persecuted by reason of his political opinion in the past.  This was the basis on which he claimed a well-founded fear for the future if he was returned to India. 

11. There is no substance in the appeal.  The appeal will be dismissed with costs.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            7 October 2004

Counsel for the Appellant:	Mr A Campbell
Counsel for the Respondent:	Ms R Pepper
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	14 September 2004
Date of Judgment:	14 September 2004