SZBSK v Minister for Immigration and Multicultural and Indigenous Affairs
[2005] FCA 1686
•18 NOVEMBER 2005
FEDERAL COURT OF AUSTRALIA
SZBSK v Minister for Immigration & Multicultural & Indigenous Affairs
[2005] FCA 1686SZBSK v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
NSD 1731 of 2005
WILCOX J
18 NOVEMBER 2005
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD 1731 of 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZBSK
APPELLANTAND:
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTPRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENTJUDGE:
WILCOX J
DATE OF ORDER:
18 NOVEMBER 2005
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1. The appeal is dismissed with costs fixed at $2,500.
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
NSD 1731 of 2005
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT
BETWEEN:
SZBSK
APPELLANTAND:
AND:
MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENTPRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT
JUDGE:
WILCOX J
DATE:
18 NOVEMBER 2005
PLACE:
SYDNEY
REASONS FOR JUDGMENT
WILCOX J:
This is an appeal against a decision of Federal Magistrate Barnes delivered on 6 September 2005 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, refusing an application for a protection visa that had been made by the appellant, a citizen of India.
The Chief Justice directed, pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), that the appeal be heard and determined by a single judge.
The appellant’s outline of submissions set out three grounds of appeal. The first of them was apprehended bias. In oral argument, the appellant’s counsel, Mr A Kumar made it clear that the only basis of the claim of apprehended bias was the conclusions reached by the Tribunal; there was no complaint about the conduct of the Tribunal member at any time. After some discussion, Mr Kumar conceded the claim of apprehended bias was untenable and withdrew that ground.
The second ground of appeal was described as ‘unreasonableness/illogicality’. The ground arises out of a passage in the Tribunal's reasons for decision in which the member discusses the possibility of the appellant relocating within India. In a history supplied by the appellant prior to the Tribunal hearing, he had said he had moved from his home town of Jagtial to Hyderabad. At page 11 of his reasons for decisions the Tribunal member said this:
‘He claims finally that he cannot relocate within India because newcomers into an area are suspected of being Pakistani agents.
As to his claim that he cannot relocate within India he has demonstrated a capacity to change location within India, then to New Zealand, then to Australia. Country information, which I accept, confirms that there are places in India where Muslims may live without fear and that some Muslims do in fact relocate when they find the situation in a particular place intolerable.
Country information does not support the claim that Muslims relocating are always suspected of being Pakistani agents and I find that this is not the case.’
Mr Kumar’s submission about this passage is that it was illogical, and therefore unreasonable, for the Tribunal member to take into account that the appellant had lived for some time in New Zealand, after leaving India and before coming to Australia. It was said that relocation in New Zealand says nothing about the possibility of the appellant being able to relocate in India, free of suspicion of being a Pakistani agent.
This submission misunderstands the reasoning embodied in the passage I have quoted. The Tribunal member was considering two matters in relation to relocation. First, he was considering whether the appellant was a person who had the capacity to relocate, in the sense of mobility and the ability to integrate into a different society. In that context, the member noted that the appellant had been able to move to New Zealand, where he had lived for some time, and had then come to Australia. I see no illogicality about referring to this history in considering the appellant's capacity to relocate.
It is, perhaps, arguable that the Tribunal member did not need to consider this matter. The appellant’s objection to relocation had depended upon perceived suspicion of being a Pakistani agent in India, rather than any personal attribute or disability. However, the fact that the Tribunal, perhaps for more abundant caution, considered a matter that may not have been strictly necessary, is not a legitimate ground of complaint. It does not indicate either unreasonableness or illogicality.
The second matter that the Tribunal member was considering was the issue that had been raised by the appellant, namely whether he could live elsewhere in India without fear of persecution or suspicion of being a Pakistani agent. The Tribunal member reached a conclusion adverse to the appellant's case on this issue because of country information which he set out in his reasons for decision. It seems to me there is nothing in this ground.
The third ground that was advanced in the outline of submissions was denial of procedural fairness. There is no doubt that procedural fairness applies generally to administrative decisions. To some extent, the provisions of the Migration Act 1958 (Cth) which govern this case override the common law duty of procedural fairness. However, I am content, for present purposes, to assume the Tribunal had a general duty of procedural fairness towards the appellant.
The appellant found difficulty in identifying the alleged breach of procedural fairness. At one time, for example in the notice of appeal, the appellant was inclined to rely upon an alleged breach of s 424A of the Migration Act. However, Mr Kumar recognised this did not apply and did not provide a basis for complaint of denial of procedural fairness. When asked to identify the breach of the duty of procedural fairness, Mr Kumar was unable to identify any such breach. Mr Kumar ultimately abandoned the ground.
There is no merit in any of the grounds that have been advanced on behalf of the appellant. I have read the decision of Federal Magistrate Barnes which is the subject of the appeal. It seems to me she comprehensively and correctly dealt with all of the matters that were argued before her. I see no basis upon which it may be said that the Tribunal fell into jurisdictional error in its handling of the appellant's case.
I will order that the appeal be dismissed with costs, which are fixed at $2,500.
I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate:
Dated: 29 November 2005
Counsel for the Appellant: Mr A Kumar Solicitor for the First Respondent: Ms D Watson of Australian Government Solicitor The Second Respondent filed a submitting appearance. Date of Hearing: 18 November 2005 Date of Judgment: 18 November 2005
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