FEDERAL COURT OF AUSTRALIA SZFYV v Minister for Immigration and Citizenship & Anor [2007] FCA 304 Migration Act 1958 (Cth)ss 422B, 424A Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5, 6 Associated Provincial Picture Houses Limited v The Wednesbury Corporation [1948] 1 KB 223 cited Kioa v West (1985) 159 CLR 550 cited SZFYV v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL 2081 OF 2006 DOWNES J 6 MARCH 2007 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY 2081 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZFYV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE OF ORDER: 6 MARCH 2007 WHERE MADE: SYDNEY THE COURT ORDERS: 1. Amend the title of the first respondent to 'Minister for Immigration and Citizenship'. 2. Appeal dismissed with 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 2081 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZFYV Appellant AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: DOWNES J DATE: 6 MARCH 2007 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The appellant is from India. He is aged 43 years. He is a Hindu. He arrived in Australia in September 2004 and applied for a protection visa. He claimed a well-founded fear of persecution within the Refugees convention. The essence of his claim is that he fears persecution by a Muslim terrorist group, the National Development Front, arising from his having informed authorities of a proposed meeting of the group which led to the making of 148 arrests. Although the basis of the claim in Convention terms is not articulated in the decisions below, the claim must be based either on his political opinion or his religion. I will leave to one side whether reporting potential criminal activity, where that activity may relate to politics or religion, can give rise to a fear of persecution on the grounds of political opinion or religion. 2 The appellant's application for a protection visa was refused on 13 December 2005 and that decision was affirmed by the Refugee Review Tribunal on 25 February 2006. The appellant appealed to the Federal Magistrates Court. His application was dismissed on 5 October 2006. He appeals to this court against that decision. 3 The Migration Act 1958 (Cth) commits the ultimate determination of the facts in refugee cases to the Refugee Review Tribunal. That Tribunal considers the matter afresh and on its merits. It is not a court. It substitutes its decision for that of the Minister, which is usually made through his delegate. The Parliament, representing the people, has thus created two tiers of decision-making during which an applicant for a protection visa has an opportunity to put forward a case on the facts. 4 The rights of persons claiming to be refugees in Australia do not, however, stop there. For practical purposes there is a review of the decision of the Refugee Review Tribunal in the Federal Magistrates Court with an appeal to this court. The appeal is, however, confined to an error of law amounting to jurisdictional error. 5 Behind every application for a protection visa lies a factual basis. The factual basis in the present case is that the appellant, on the basis of his Hindu religion and imputed political opinion, claimed to fear persecution by the NDF. Before the Tribunal, the appellant gave evidence of his alleged activity as an informant, which took place in 2003 and which I have already referred to. Following this, the appellant alleged that members of the NDF had threatened and attacked him and his property. The Tribunal, constituted by Mr S. Norman, was not satisfied that the appellant had a well-founded fear of persecution. It came to this conclusion because even if the appellant might have had a real chance of persecution for a Convention reason in or around his former residence in Calicut City, or even in Mumbai, it found that the appellant could safely relocate, within India, to a place where he could have no well-founded fear of persecution, and that it was reasonable in all the circumstances to expect him to do so. 6 The reality of this case is that the appellant has lost it on the facts. However, the only appeal relates to the law. Accordingly, any appeal must address the law and not the facts, except in a small class of cases where errors of law relate to the facts. This raises problems for the many appellants who are in a similar position to the present appellant. However, if there is a relevant error of law an appeal will be successful. Accordingly, I now turn to that question. 7 The notice of appeal contains three grounds. They mirror the three grounds that were before the court below and assert that the Federal Magistrate failed to make findings relating to the decision of the Tribunal on the basis that there had been: 1. breach of procedural fairness in failing to disclose independent country information to the appellant; 2. Wednesbury unreasonableness in finding that the appellant was able to relocate within India; and 3. manifest unreasonableness in finding that the appellant would not have a fear of persecution if he relocated to another state within India, particularly because the Tribunal made no finding identifying a place to which the appellant could relocate. 8 The first ground must fail because section 422B of the Migration Act excludes common law natural justice or procedural fairness. The only applicable standard with respect to disclosure of information is contained in s 424A and that excludes country information. 9 The second and third grounds seem to me both to raise what the appellant has called "Wednesbury unreasonableness", which is also referred to by the appellant's other description, "manifest unreasonableness". The reference to Wednesbury unreasonableness is a reference to the judgment of Lord Greene MR in the English Court of Appeal in Associated Provincial Picture Houses Limited v The Wednesbury Corporation [1948] 1 KB 223. The test promulgated in that case, as restated in ss 5 and 6 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (see Kioa v West (1985) 159 CLR 550 at 576), is whether a purported exercise of administrative power "is so unreasonable that no reasonable person could have so exercised the power". I will assume that such a purported exercise of power is no exercise of the power because it involves jurisdictional error. The appellant relies upon this ground, which undoubtedly raises a question of law, to challenge the two ultimate findings of fact made by the Tribunal. They are: 1. that the appellant could safely relocate within India to a place where there would be no well-founded fear of persecution; and 2. that it was reasonable in all the circumstances to expect the appellant to do so. 10 The notice of appeal makes some particular points. As to the first finding, it challenges a statement by the Tribunal that it is not ordinarily for the Tribunal to make an applicant's case for the applicant. The appellant says that he did not expect that. No reasonableness issue arises there. The notice of appeal goes on to assert that the Tribunal did not raise the question of whether there were health, education or similar reasons which would affect the issue of relocation. The Tribunal had evidence on relocation, such as the appellant's actual relocation, which would have assisted it to assess this matter. In the circumstances, it was not unreasonable for the Tribunal not to make any further specific inquiry. 11 As to the second finding, the notice of appeal asserts that the Tribunal did not satisfy itself that there was a particular place for the appellant to relocate. I do not think it had any obligation to do so. It was not for the Tribunal to seek to require the appellant to relocate to some particular place but to satisfy itself that safe relocation was possible. This it did. 12 I have looked generally at the question of whether there was manifest unreasonableness in the decision. I do not think there was. Whether I would have made the same findings of fact as the Tribunal made is not the question. The Tribunal addressed relevant issues, made findings of fact that were available to it and came to rational conclusions relating to those matters. It seems to me that that answers any claim of Wednesbury unreasonableness. 13 The appellant has presented his own case before me this afternoon. His oral submissions were limited to submitting to me that it was not possible for him to relocate because wherever he could practically go, he would be found by the NDF. This is an attempt to challenge the findings of fact of the Tribunal, upon which its decision relating to relocation was based. As I have said, except in a small class of cases, such as one affected by Wednesbury unreasonableness, no such challenge to the facts is available on an appeal to this court. In this case a claim based on Wednesbury unreasonableness must fail. 14 I have read the decision of Barnes FM in this matter. That decision also analyses the Tribunal decision and considers the arguments relating to its correctness raised before that court. I see no error in the reasoning of Barnes FM, although I notice that I have assessed the appellant's appeal with somewhat greater attention to the so-called Wednesbury ground because it seemed to me directly to be raised in the appeal. In the result, there is no error of law in the decision of the Tribunal and no appellable error in the decision of the Federal Magistrates Court. It follows that the appeal must be dismissed and will be dismissed with costs. I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Downes Associate: Dated: 12 March 2007 Counsel for the Appellant: The Appellant appeared in person with the assistance of a Malayalam interpreter Counsel for the First Respondent: M Izzo Solicitor for the First Respondent: Sparke Helmore Date of Hearing: 6 March 2007 Date of Judgment: 6 March 2007