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[2003] FMCA 168
respondent. Application dismissed. Applicant ordered to pay the respondent’s costs fixed at $3,500 under Order 21.02(2)(a) of the Federal Magistrates Court Rules. [15]–[16]
The applicant challenged the Tribunal’s decision to affirm refusal of his protection visa. The Tribunal did not accept key parts of his account but also considered whether he could live safely and reasonably elsewhere in India. The Court found that the Tribunal had considered the evidence and documents, addressed relocation, and followed a fair process. Because the applicant did not establish jurisdictional error, the Court dismissed his application and ordered him to pay $3,500 in costs.
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2,391 words · generated 01/10/2026
NABZ sought judicial review of a Refugee Review Tribunal decision affirming a delegate’s refusal to grant him a protection visa. The Tribunal made its decision on 27 August 2002 and handed it down on 18 September 2002. It was that Tribunal decision, rather than the delegate’s original decision, that was the subject of review in the Federal Magistrates Court ([1], [4]).
No linked legislation citations have been extracted yet.
The applicant said he was an Indian citizen, arrived in Australia on 4 April 2001, and applied for a protection visa on 11 May 2001. A delegate refused the visa on 17 September 2001. He applied to the Tribunal for review on 5 October 2001 ([4]). He initially filed in the Federal Court on 11 October 2002. Justice Gyles transferred the matter to the Federal Magistrates Court on 21 November 2002 ([2]).
The claims described in the respondent’s submissions included allegations that NABZ and his family had been troubled by local Muslims after the demolition of the Babri Masjid, that he had belonged to Hindu groups involved in clashes with Muslim groups, and that he feared being killed because he had witnessed a murder. A statutory declaration later described other claims, including past arrests, moves between Indian cities, time in Korea, vandalism of property, and the murder of his brother-in-law ([5]). These were claims in the record, not findings accepted in full by the Court.
The Tribunal rejected the credibility of the applicant and key claims. The reasons, as summarised in the judgment, identified changes in his account, including claims said to be significantly different or the opposite of earlier claims. The Tribunal also noted similarities between some of his claims and claims made in another case ([5]). Even so, the Tribunal accepted for its analysis that he had faced difficulties in Kerala and might continue to face difficulties there. It then considered whether he could relocate to another part of India and whether it was reasonable to expect him to do so ([5], [9]–[11]).
NABZ was self-represented. His application did not set out grounds of review, and he had not filed written submissions despite an order requiring them. In oral argument, he said he could not return to India because he would be killed and contended that the Tribunal had not considered documents he provided, including information about an attack on his wife’s brother and damage to his house ([3], [6]). The Court nonetheless examined the Tribunal’s reasons and the material before it to determine whether reviewable error was apparent ([7]).
The application was dismissed. The Court ordered NABZ to pay the Minister’s costs, fixed at $3,500 ([15]–[16]).
The Court’s central conclusion was that the applicant had not established jurisdictional error. It treated that as the necessary basis for making the orders he sought ([13]–[15]). The reasons do not decide whether NABZ’s protection claims were true. Rather, they assess whether the Tribunal’s decision-making process disclosed an error that would permit judicial relief.
First, the Court held that the Tribunal’s credibility finding was open on the material before it. The Court cited Re Minister; Ex parte Durairajasingham for that point ([9]). The judgment recounts the Tribunal’s reasons for doubting the applicant’s account, including changes in his claims over time ([5]). The Court did not substitute its own view of credibility. It emphasised that the weight given to particular evidence was for the Tribunal ([13]).
Second, the Court considered the Tribunal’s treatment of internal relocation. The Tribunal accepted, for the purpose of its analysis, that NABZ faced difficulties in Kerala, then examined whether he could live elsewhere in India ([9]–[11]). It considered information about Hindus generally in India and the applicant’s personal circumstances. The summary in the judgment identifies his travel experience, Hindi-language ability, and income and other sources of income as matters the Tribunal took into account when assessing relocation ([5]). The Court said the Tribunal’s consideration of general information and personal circumstances accorded with Randhawa ([11]). It found that the Tribunal had properly considered relocation ([13]).
Third, the Court examined the claim that the Tribunal ignored documents. It recorded that the Tribunal’s reasons referred to a death certificate for the applicant’s brother-in-law, information from the applicant and his migration agent, a letter from a lawyer in India and a translation, and other documents supplied to the Tribunal and the Department. It also noted that the Tribunal considered the claimed damage to NABZ’s house ([12]). The applicant did not identify other particular material that had been overlooked. On that record, the Court found no indication that the Tribunal failed to take account of relevant information ([12]–[13]).
Finally, the Court found nothing suggesting unfair procedures in the Tribunal’s review ([13]). Its discussion of section 474 of the Migration Act 1958 (Cth) relied on Plaintiff S157/2002, which it summarised as distinguishing decisions involving jurisdictional failure or excess, and decisions affected by denial of natural justice, from decisions protected by the privative clause ([8]). The Court found no relevant jurisdictional error here. It added that no breach of a Hickman proviso was argued or established ([14]).
The reasoning is therefore tied to the record in this case: the Tribunal gave reasons, considered the applicant’s evidence, addressed relocation, and followed a process the Court found was not shown to be unfair. The Court did not hold that every credibility or relocation decision is insulated from review. Its conclusion was that no reviewable error had been demonstrated on the material before it.
This judgment records the legal framework the Court applied in April 2003; it does not provide a comprehensive account of the law before or after the decision. The Court’s starting point was its statutory jurisdiction. It said section 483A of the Migration Act gave the Federal Magistrates Court the same jurisdiction as the Federal Court in matters arising under the Act, and section 475A gave it jurisdiction in relation to a privative clause decision made on review by the Tribunal ([8]).
The Court then referred to section 474 and Plaintiff S157/2002. As described in the judgment, the High Court had held section 474 constitutionally valid, but the words “decisions made under this Act” did not encompass decisions involving a failure to exercise jurisdiction or an excess of jurisdiction. The Court also noted that a decision affected by failure to comply with natural justice was not a privative clause decision ([8]). This is the judgment’s summary of Plaintiff S157/2002, not an independent or exhaustive restatement of that case.
Within that framework, NABZ illustrates the Court’s application of jurisdictional-error review to a Tribunal decision. The Court treated credibility assessment and evidentiary weight as matters for the Tribunal where the findings were open on the material ([9], [13]). It examined whether the Tribunal had considered the applicant’s evidence and addressed the relocation question, rather than deciding the protection claims afresh ([10]–[13]).
The judgment also records Randhawa as relevant to considering both general conditions and the person’s circumstances when addressing relocation ([11]). It does not set out a detailed test from Randhawa. Accordingly, the supported proposition here is limited: the Court regarded the Tribunal’s consideration of general information and personal circumstances as consistent with that authority.
Nothing in the supplied judgment establishes what the law became after April 2003 or how later courts treated NABZ. That history cannot be inferred from this decision alone. Its own disposition was simply that the applicant failed to establish jurisdictional error, with the application dismissed and costs fixed at $3,500 ([14]–[16]).
At [8], the Court explains its understanding of the privative-clause setting. It says section 474 was constitutionally valid, but its protection did not extend to decisions involving jurisdictional failure or excess, and a decision affected by denial of natural justice was not a privative clause decision. In plain English, the existence of a statutory clause limiting review did not, as the Court described the law, remove review for those categories of serious error.
At [9], the Court says that, insofar as the Tribunal rejected the applicant’s credibility, that was a decision open to it on the material. In plain English, the Court did not treat the judicial review hearing as a fresh opportunity to decide whether the applicant’s account was believable. It asked whether the Tribunal’s conclusion was available on the evidence before it.
At [11], the Court says the Tribunal considered information relevant to Hindus generally in India as well as NABZ’s personal circumstances, and describes that approach as consistent with Randhawa. In plain English, the Court considered both country information and individual factors relevant to the possibility of relocation.
At [12], the Court identifies material the Tribunal’s reasons showed it had considered, including the death certificate and other documents. It also notes that the applicant did not identify other specific material said to have been overlooked. In plain English, the Court tested the complaint against the Tribunal’s written reasons and the documents referred to in them.
At [13], the Court says: “The weight to be given to particular evidence was a matter for the Tribunal.” This is the clearest statement of the boundary the Court applied between the Tribunal’s factual task and judicial review. The Court also said it found no jurisdictional error in the Tribunal’s consideration of the claims.
At [14], the Court states that no jurisdictional error had been established on which it could grant the requested orders. It then notes that no breach of a Hickman proviso was argued or shown. In plain English, the application failed because the Court found no legal basis in the record to set aside the Tribunal decision.
The judgment is most directly relevant to a review challenge where a Tribunal has rejected a protection applicant’s account, but the applicant argues that the Tribunal’s credibility assessment or weighing of evidence was wrong. NABZ shows the Court treating those matters as for the Tribunal where its conclusion was open on the material ([9], [13]). It does not say that credibility findings can never disclose jurisdictional error; it concludes only that none was apparent in this case.
It is also relevant where an applicant contends that the Tribunal overlooked documents. The Court examined whether the reasons showed consideration of the particular documents and claims raised, and noted the absence of a specific identification of other omitted material ([12]). The decision therefore illustrates the value, in analysing a review ground, of identifying the particular information alleged to have been missed and comparing it with the Tribunal’s reasons. That observation describes the Court’s method; it is not advice about what a person in another matter should do.
The case also concerns internal relocation. It may be relevant where a Tribunal accepts, for the purpose of analysis, that a person faces difficulties in their home region and then examines relocation elsewhere in the country of origin. Here, the Court found the Tribunal considered country information and personal circumstances, including language, travel and financial circumstances as summarised in the reasons ([5], [9]–[11]). The judgment does not establish a universal outcome for relocation cases.
Finally, the decision is relevant to a challenge framed around procedural unfairness or a statutory privative clause. The Court applied the framework it attributed to Plaintiff S157/2002 and found no unfairness or jurisdictional error on the record ([8], [13]–[14]). Its conclusion depends on the facts and material before it, including the Tribunal’s reasons and the applicant’s submissions.
The supplied judgment contains no subsequent judicial history and does not refer to any later court treating NABZ. It would therefore be unsupported to say that later courts followed, applied, distinguished, or disapproved it.
The judgment itself cites several earlier authorities. It cites Plaintiff S157/2002 for its account of section 474 and privative-clause decisions ([8]); Re Minister; Ex parte Durairajasingham in relation to a credibility finding open on the material ([9]); Randhawa in relation to relocation analysis ([11]); Minister for Immigration & Multicultural Affairs v Yusuf and Paul v Minister for Immigration & Multicultural & Indigenous Affairs in support of its conclusion that no jurisdictional error was apparent ([13]); and R v Hickman; Ex parte Fox and Clinton when addressing the provisos ([14]). Those are authorities the judgment cites, not evidence of later treatment of NABZ.
For research use, the safe account based on this text is that NABZ is a Federal Magistrates Court decision applying those cited authorities to the Tribunal’s credibility, evidence, relocation and procedural analysis. Any proposition about its later precedential standing would require sources beyond the judgment supplied here.
The judgment does not reproduce the Tribunal’s full reasons or the underlying documents. It summarises parts of them through the respondent’s submissions and the Court Book references ([5], [10], [12]). That limits what can be concluded from this text about the precise evidentiary basis for each Tribunal finding.
The judgment also does not set out a detailed doctrinal test for internal relocation. It says the Tribunal’s consideration of country information and personal circumstances accorded with Randhawa, but gives only a short description of that authority ([11]). The full scope of the relocation principles applied is therefore not ascertainable from this judgment alone.
The applicant was self-represented, had not specified grounds in the application, and did not file written submissions despite an order to do so ([3]). The Court nevertheless examined the reasons and material for reviewable error ([7]). The decision does not explore how the presentation of more developed grounds might have affected the analysis, and no alternative outcome can properly be inferred.
The Court’s discussion of section 474 is expressly brief. It says it was unnecessary to set out the law at length and records only the aspects of Plaintiff S157/2002 it considered material ([8]). It likewise notes the Hickman provisos only to say that breach was not argued or established ([14]). The judgment does not analyse the content of those provisos or apply them to particular facts.
Nor does this source answer what happened to NABZ after the judgment or how subsequent cases treated the decision. Its stated result is confined to dismissal of the application and a $3,500 costs order ([15]–[16]).
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this analysis or relying on it, have a qualified Australian lawyer check it.
MIGRATION - Review of decision of Refugee Review Tribunal - no jurisdictional error.
Migration Act 1958 (Cth)
Re Minister; Ex parte Durairajasingham (2000) 168 ALR 467
Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437
Paul v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1196; (2002) 64 ALD 289
Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1
R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598
MINISTER FOR IMMIGRATION MULTICULTURAL & INDIGENOUS AFFAIRS
(2) That the applicant pay the respondent's costs set in the amount of $3,500 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules.
MINISTER FOR IMMIGRATION &MULTICULTURAL & INDIGENOUS AFFAIRS
1. This is an ex tempore judgment in the matter of NABZ v The Minister for Immigration and Multicultural and Indigenous Affairs in relation to an application for review of a decision of the Refugee Review Tribunal (the Tribunal) that was made on 27 August 2002 and handed down on 18 September 2002 affirming a decision of a delegate of the respondent to refuse to grant a protection visa to the applicant.
2. The applicant applied to the Federal Court on 11 October 2002. The matter was transferred to this court on 21 November 2002 by Justice Gyles.
3. In the application the applicant gives no details of the grounds for review. He seeks orders that the decision of the Tribunal be set aside under section 39B of the Judiciary Act 1993. In an accompanying affidavit sworn by him he merely recites the facts of his nationality, arrival in Australia and the processing of his application for a protection visa. The applicant has not filed any written submissions despite having been ordered to do so. He made oral submissions today.
4. The applicant claimed to be a citizen of India who arrived in Australia on 4 April 2001. On 11 May 2001 he lodged an application for a protection visa. On 17 September 2001 a delegate of the Minister refused to grant a protection visa and on 5 October 2001 the applicant applied to the Tribunal for review of that decision. It is that decision that is the subject of this review. The Tribunal held a hearing which the applicant attended.
5. The claims of the applicant and a summary of the Tribunal decision are set out at length in the written submissions filed by the respondent.
The applicant claimed to be a citizen of India who arrived from that country into Australia on 4 April 2001. On 11 May 2001 the applicant lodged an application for a protection visa claiming that after the demolition of the Barbari Mazjid he and his family were troubled by local Muslims and forced to move from the area. He also claimed that he had been a member of two Hindu groups which had been involved in clashes with Muslim groups starting in 1992. Finally, the applicant claimed that he had been a witness to one of the brutal murders and that he would be killed so as not to give evidence [CB 11-12]. By letter dated 12 July 2001 a delegate of the respondent wrote to the applicant setting out certain information which he proposed to take into account adversely to the applicant in making his decision and asking him to comment on that material. Amongst the material was a comment that the applicant had provided no detail as to when, how, where why or by whom he had been persecuted or whom clearly he feared upon return [CB 15-17]. The delegate made a decision refusing to grant the visa on 17 September 2001 and the applicant applied on 5 October 2001 to the Tribunal for review of that decision.
The applicant, by his adviser, provided a statutory declaration to the Tribunal in support of his application [CB 31-33]. In that statutory declaration the applicant claimed that he was a Hindu and had joined two Hindu parties in 1980 and after serious fighting in 1992 he, along with various other members of the groups, had been accused by police and arrested. He subsequently fled his home State (Kerala) for Madras and Bombay and finally lived in Korea until 1998. He claimed that he returned from Korea in 1998 because of the return to power of the BJP government. However, he claimed that there were further problems upon his return to Kerala, namely, his discovery that some of his property had been vandalised in his absence. Further, he claimed that his brother-in-law had been murdered by assailants whom he believed to be Muslims. His brother-in-law's murder was on the day he left for Australia. The applicant attended a hearing held by the Tribunal on 26 August 2002 and was assisted by an interpreter [CB55]. The Tribunal handed down its decision affirming the delegate's decision on 18 September 2002.
The Tribunal concluded that neither the applicant nor his key claims were credible [CB 79.2]. This was on the basis that a large number of his claims changed over time and were not only significantly different but were in fact the exact opposite of the previous claims [CB 78.5-6]. The further reason is that some of the claims were identical to the claims made at the Tribunal application stage in another case in which a person claimed to come from a neighbouring state of Tamil Nadu [CB 79]. This information was put to the applicant at the hearing [CB 67.6]. Nevertheless, the Tribunal accepted that the applicant had difficulties in his part of Kerala and that he still faces difficulties in Kerala [CB 80.2]. On the basis of this finding the Tribunal went on to consider whether the applicant would be able to relocate to another part of India and avoid any risk of persecution. The Tribunal first noted in this regard that the only place in which the applicant claimed to have come into direct conflict with the Muslim fanatics was in his home state and that the position he claimed to have held in the Hindu parties was not an important position in his home state of Kerala and certainly not in India as a whole [CB 80.8].
The Tribunal then considered information relevant to Hindus in other parts of India and concluded that whatever level difficulties the applicant might claim to fear in Kerala were simply untenable in the wider country, where Hindus comprise the overwhelming majority and where the groups which the applicant named as his enemies were virtually unrepresented [CB 81.10]. Having considered the general situation in India the Tribunal went on to consider whether it would be reasonable in all the circumstances to expect the applicant to relocate to another part of India. On the basis that the applicant was well-travelled, speaks, reads and writes Hindi (India's most widely spoken language) meant that he could readily adapt to another part of India as he had done in the past. This, according to the Tribunal, would be less of an adaptation than was required to move to Korea and Australia. The Tribunal also considered the applicant's present weekly income ($500) which was about half the average annual income in India and that the applicant and his family have other sources of income. On the basis of all these circumstances the Tribunal found that it would be reasonable for the applicant to relocate within India [CB 82.4]. Finally, the Tribunal concluded on all the above bases that the applicant did not have a well-founded fear of persecution within the meaning of the convention. Accordingly, the Tribunal affirmed the decision of the delegate.
6. As I have indicated, the applicant has not specified any grounds for review. In oral submissions he told the Court that he could not go back to India as if he went there he would be killed. He also said that the Tribunal did not go through the documents he gave it. When asked which documents these were, he referred to the details of an attack on his wife's brother, which he said he gave to the Tribunal in documentary form. He also referred to a claim that there had been an attack on his house during his absence.
7. The respondent submitted that the Tribunal decision turned on a finding that the applicant could reasonably be expected to relocate in India and that there was no jurisdictional error in the Tribunal decision. As the applicant is self-represented, I have considered the Tribunal reasons for decision and all of the material before me to determine whether there is a reviewable error in this case.
8. Pursuant to section 483A of the Migration Act 1958 (Cth) (the Act) this Court has the same jurisdiction as the Federal Court in relation to a matter arising under the Act. Pursuant to section 475A the Court has jurisdiction in relation to a privative clause decision made on a review by the Tribunal. Privative clause decision is defined in Section 474 of the Act. It is not necessary for the purposes of this decision to set out at length the law in r elation to privative clause decisions but I note, in particular, the decision of the High Court in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 195 ALR 24 in which Court held that section 474 of the Migration Act was constitutionally valid and that as a matter of construction, the expression "decision[s] made under this Act" in section 474 must be read so as to refer to decisions which involve neither a failure to exercise jurisdiction nor an excess of the jurisdiction conferred by the Act. Further, a decision flawed for reason of a failure to comply with the principles of natural justice is not a privative clause decision.
9. In this case, the Tribunal first considered the issue of credibility of the applicant. In so far as the Tribunal rejected the credibility of the applicant, that is a decision for the Tribunal which was open to it on the material before it (see Re The Minister; Ex parte Durairajasingham (2000) 168 ALR 467). However, the Tribunal went on to consider the possibility of relocation by the applicant in India. It accepted that the applicant had difficulties in his part of Kerala and still faced difficulties in Kerala on the basis of his claims. It accepted for the purposes of the decision that the claims were true (despite its doubts as to the credibility of the applicant and whether the claims applied similarly in other States of India).
10. The Tribunal undertook an extensive review of the material relating to the ability of the applicant to relocate within India. I refer in particular to pages [80] to [82] of the Court Book. It also considered the reasonableness of any expectation that the applicant should relocate.
11. The Tribunal considered information relevant to Hindus generally in India, as well as the personal circumstances of the applicant regarding possibilities and realities of location. These considerations were in accord with authorities such as the decision in the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.
12. The applicant has suggested that the Tribunal failed to take into account some of the information that he provided. However, it is apparent from the Tribunal reasons for decision that it did take into account information in relation to the death of his brother in law. In particular there is reference to the death certificate of his brother-in-law and also to other information that the applicant provided, such as his claims, the claims of his migration agent, a letter from his lawyer in India and a translation. There was also specific consideration of other documents submitted by the applicant to the Tribunal and to the Department of Immigration. The applicant did not point specifically to any other particular information in documentary form or otherwise that was not taken into account. The Tribunal considered in detail the various claims that the applicant made in his original application and during and in the course of the Tribunal review and hearing. It also considered material in relation to damage occasioned to the house of the applicant which was mentioned by him in these proceedings.
13. There is nothing in the Tribunal reasons for decision or other material before the court to indicate that the Tribunal erred in the way in which it approached its task. It engaged in a detailed examination of the circumstances claimed by the applicant, including his own evidence. The weight to be given to particular evidence was a matter for the Tribunal. It considered the elements or integers of the applicant's claims. The Tribunal was entitled on that basis to arrive at the decision which it did. It properly considered the question of relocation. Further, there is nothing in the material before the Court to suggest that any of the procedures adopted by the Tribunal in respect of the process of reviewing the delegate's decision was unfair. No jurisdictional error is apparent in the Tribunal's consideration of the applicant's claims (see Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1 and Paul v Minister for Immigration & Multicultural & Indigenous Affairs [2001] FCA 1196; (2002) 64 ALD 289).
14. Accordingly, it has not been established that there is any jurisdictional error upon which the Court may make the orders sought by the applicant. The decision is a privative clause decision and subject to section 474 of the Act. For the sake of completeness I note that it was not argued and nor does the material before the Court establish that any of the Hickman provisos have been breached. (see R v Hickman; Ex parte Fox and Clinton [1945] HCA 53; (1945) 70 CLR 598).
15. It follows that the applicant's claim for relief must be dismissed. Accordingly, it is ordered that the application is dismissed. I will hear submissions in relation to costs.
16. As the applicant has been wholly unsuccessful it is appropriate that he pay the respondent's costs. I consider that this case is one of the more straightforward cases to come before the Court and that costs should be fixed. The appropriate amount of costs in this case is $3500. Accordingly, it is ordered that the applicant pay the respondent's costs set in the amount of $3500 pursuant to Order 21.02(2)(a) of the Federal Magistrates Court Rules.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Barnes FM
NABZ
Minister for Immigration [2003] FMCA 168
(2001) 180 ALR 1
(2000) 168 ALR 467
(2003) 195 ALR 24
(1994) 52 FCR 437
(1945) 70 CLR 598
Application dismissed. Applicant ordered to pay the respondent’s costs fixed at $3,500 under Order 21.02(2)(a) of the Federal Magistrates Court Rules. [15]–[16]