SZDSA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 595

FEDERAL COURT OF AUSTRALIA

SZDSA v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 595 MIGRATION – appeal from Federal Magistrates Court in relation to decision of Refugee Review Tribunal – factual application of principles in Randhawa in relation to relocation – appeal dismissed

Migration Act 1958 (Cth), s 36

SZDSA v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 255, upheld Randhawa v Minister for Immigration, Local Government & Ethnic Affairs(1994) 52 FCR 437; (1994) 124 ALR 265, applied

SZDSA v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 312 OF 2005

GYLES J

4 MAY 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 312 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDSA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE OF ORDER: 4 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the costs of the respondent.

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 312 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZDSA

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: GYLES J

DATE: 4 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This matter comes before me for final hearing. Orders were made on 22 March 2005 fixing this date for hearing and making some ancillary orders, including an order that the appellant file and serve an amended notice of appeal giving full particulars of each ground of appeal by 11 April 2005 and file and serve any written legal submissions on or before five working days prior to the hearing date. 2 The appeal is from a decision of the Federal Magistrates Court which was given on the date of hearing, 11 February 2005 (SZDSA v The Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 255). It was a review of a decision of the Refugee Review Tribunal made on 15 April 2004 and handed down on 11 May 2004. 3 The applicant is a citizen of India. He arrived in Australia on 28 June 2003. He applied for a protection visa pursuant to s 36 of the Migration Act 1958 (Cth)on 24 July of that year which was refused on 18 November 2003, which led to the appeal to the Refugee Review Tribunal. 4 The appellant seeks an adjournment for what he says is a few days to enable him to seek legal advice. He says that he has been distracted by recent events, including the effect of the tsunami upon his family. He says he has been very depressed. He says that his friends wrote the amended notice of appeal and that he did not even have it translated to him. He wants to go back and get tapes of the hearing before the Tribunal and he wishes to, as it were, re-cast his case. 5 In my opinion the application for adjournment must be refused. The matter has a long history. There has been ample occasion for him to seek the benefit of legal advice which he has not taken. There is no evidence as to what steps he has taken in the past. There is no evidence which would indicate any greater chance of obtaining advice in the future than he has now. 6 The appellant, in his oral argument today, both during the course of his application for an adjournment and now, has correctly recognised that the issue in the case is that of relocation. The difficulty that he faces is that the learned Federal Magistrate expressly considered the manner in which the Refugee Review Tribunal dealt with the question of relocation. The point which the appellant now makes to me is, in short, that if he returned to India he would have a reasonable apprehension of persecution by the organisation known as the RSS, no matter where he was in India because of the network that they have and that he could not trust the police to protect him. That point, expanded somewhat, was considered by the Tribunal and it came to the view that relocation was an answer to the case. 7 As I say, the learned Federal Magistrate was satisfied that the Tribunal had considered the relevant legal principles based upon the well-known authority of Randhawa v Minister for Immigration, Local Government & Ethnic Affairs(1994) 52 FCR 437; (1994) 124 ALR 265; (1994) 35 ALD 1 and had applied them correctly without any attendant legal error. I can see no error in the way in which the learned Federal Magistrate considered the reasons of the Tribunal. 8 It is not for this Court to consider afresh for itself the relevant question. I should say, however, that I have looked at the relevant part of the Tribunal's decision and, although the matter has not been fully considered by me, I can detect no error myself in the way the Tribunal approached the matter. 9 This is another case in which it appears that standard form appeals or applications for review to the Federal Magistrates Court and standard form appeals to this Court are brought according to what appear to be templates, having no relationship with the facts at hand. At least this appellant has recognised the critical point in making his submissions. 10 I acknowledge, of course, the fact that the question of a Muslim in India is a vexed question and that the question of relocation is a vexed question. It is not for me to have a view one way or the other about the situation of this appellant. The limited role I have, as I have endeavoured to explain, is to review the reasons of the learned Federal Magistrate. I have done that and, having taken into account the written submissions of counsel for the Minister, I am satisfied that the appeal must be dismissed. I dismiss the appeal. The appellant is to pay the respondent's costs. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.