SZFCB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 961

FEDERAL COURT OF AUSTRALIA

SZFCB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 961 MIGRATION – judicial review – whether Magistrates Court should have found jurisdictional error in conclusion by the Refugee Review Tribunal that the appellant could safely relocate within India

Migration Act 1958 (Cth) ss 424A(1), 424A(3) Judiciary Act 1903 (Cth) s 39B NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 discussed Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 discussed SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 cited Minister for Immigration and Multicultural and Indigenous Affairs v NAMW [2004] FCAFC 264 cited

SZFCB v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

NSD 715 of 2005

SACKVILLE J

14 JULY 2005

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 715 OF 2005

BETWEEN: SZFCB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE OF ORDER: 14 JULY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 715 OF 2005

BETWEEN: SZFCB

APPELLANT

AND: MINISTER FOR IMMIGRATION AND

MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: SACKVILLE J

DATE: 14 JULY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT

the appeal 1 This is an appeal from a judgment of the Federal Magistrates Court given ex tempore on 20 April 2004. The learned Magistrate dismissed an application for judicial review of a decision of the Refugee Review Tribunal ('RRT') handed down on 11 November 2004. The RRT had affirmed a decision of a delegate of the respondent ('the Minister') not to grant the applicant a protection visa. 2 The appellant is a citizen of India, whose family apparently resides in his home state of Tamil Nadu. The appellant arrived in Australia on 16 May 2004 and on 28 May 2004 lodged an application for a protection (class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs. On 8 June 2004, a delegate of the Minister refused to grant the protection visa. As I have noted, the RRT affirmed that decision and an application for judicial review was dismissed. 3 The appellant, as directed, filed an amended notice of appeal. The notice of appeal asserts that the learned Magistrate erred in law by failing to find that the RRT had made a jurisdictional error in affirming the decision of the delegate on a number of grounds, as follows: '4. The Federal Magistrate failed to see that Tribunal having accepted that the applicant subjectively feared he might be persecuted by local high caste persons should have accepted the reality that there was a real danger to the applicant. 1. The Federal Magistrate made an error by accepting that the Tribunal's finding that the applicant could relocate to any other part of India. 6. The Federal Magistrate made a legal, factual and jurisdictional error in not properly applying the principles laid down by the Full Court of Federal Court in Randhawa v The Minster for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. 7. The Federal Magistrate failed to see that the appellant had a fear of persecution in his home country and that persecution is well founded. 8. The Federal Magistrate is wrong in saying that there is no reviewable error. The Tribunal and the Federal Magistrate has failed to see that the language and culture in each state of India is different. And it is difficult it find job or live here. Whereas in Australia the language is English and the language is not different from India. In Tamil Nadu state of India, English language is used from nursery school to college level. The Tamilnadu state in India does not use other languages like Malayalam. The Federal Magistrate should have treated this as a reviewable error. 9. The Federal Magistrate and the Tribunal should have seen that in Tamil Nadu, English is the main language used everywhere. Therefore the applicant feels comfortable in an English speaking country like Australia than other states in India which have other languages and culture. 10. The Tribunal before advising the applicant to relocate to other parts of the country should have relied on some independent source to find the truth stated in the about point. The Federal Magistrate has not considered this point and made an error. 11. The Federal Magistrate failed to see that the Tribunal failed in relying on some country information provided by foreign sources. The Federal Magistrate should have seen the Tribunal had not given priority to the real factual situation and should not have relied on unrealistic third party statements.' (The numbering is that adopted by the notice of appeal.)