SZJJL v Minister for Immigration and Citizenship

The proceedings in the Federal Magistrates Court below 5 The appellant commenced proceedings for judicial review of the decision of the Tribunal in the Federal Magistrates Court by way of application and affidavit in support filed on 18 September 2006. The appellant filed thereafter an amended application on 12 December 2006, which, as his Honour observed, contained the following grounds for review: 1. that the Tribunal failed to assess the appellant's 'fears of harm' suffered according to the refugee criteria and misapplied his claims and failed to evaluate his fears as per s 91R of the Migration Act; 2. the relocation findings were contrary to the principles set out in Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437 ('Randhawa'). 6 Scarlett FM found that the Tribunal had sufficiently addressed the ability of the appellant to relocate within India and considered that purported first ground for review as 'almost irrelevant'. Moreover his Honour considered that there was no evidence to the effect that the Tribunal had failed to grasp the real issue the subject of the claims made by the appellant. 7 Scarlett FM found further that there was nothing in the findings of the Tribunal that were contrary to the decision in Randhawa. His Honour observed that the Tribunal did duly consider the circumstances relevantly of the appellant, and in so doing discussed his professional skills. Following the decisions in SZBGC v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1168 and SZFCB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 961 his Honour expressed his satisfaction that the Tribunal had given sufficient thought to the issue as to reasonableness of relocation, and in that regard took account of the circumstance that the appellant relocated to New Delhi while awaiting the grant of his visa for entry into Australia.

The appeal to the Federal Court 8 On 8 March 2007 the appellant filed a notice of appeal with the Federal Court upon virtually or substantially the same grounds as had been presented to the Federal Magistrates Court. 9 Those grounds of appeal to the Court may be summarised as follows: (i) the Federal Magistrates Court failed to recognise or apprehend the appellant's contention that the Tribunal had failed to assess the appellant's fear of harm from 'local terrorists in Jammu'; and (ii) the Federal Magistrate failed to discern that the Tribunal's finding on relocation was inconsistent with the principles established in Randhawa. 10 At the hearing of the appeal the appellant submitted written submissions, inferentially prepared by a person with some familiarity with migration law. The appellant did not seek to add to those submissions during the hearing. 11 In relation to the first ground of appeal, I believe the Federal Magistrate was correct in finding that the appellant had failed to establish that ground by evidence. I find force in the Minister's contention that in the light of the vagueness of the appellant's evidence concerning the identity of who he fears, there is nothing to suggest that the Tribunal misunderstood the nature of those fears. I find that the first ground of appeal must therefore fail. 12 The Federal Magistrate in my view was also correct in concluding that the Tribunal had not misunderstood or misapplied the Randhawa relocation principle. The Tribunal did explore the issue of relocation with the appellant and did consider his ability to relocate to New Delhi or even Calcutta, and in particular, the impediments he claimed to face, being first his prominent political convictions and associations, and secondly, the circumstance that the terrorists for whom he held fears had operated syndicates on a widespread geographical basis. 13 However, the Tribunal's finding of fact was to the effect that the appellant was only a local politician and the Tribunal did not accept that the terrorists whom he claimed to fear were part of some national syndicate or organisation. In support of its conclusion that the appellant could relocate, the Tribunal drew particular attention to the appellant's ability to relocate to New Delhi prior to coming to Australia, and in that regard, that he had professional skills. 14 In my opinion, there is ample authority for the principle that an issue arising as to the reasonableness or otherwise of relocation ultimately boils down to one of fact: see for instance SZBGC at [26] per Emmett J. The Federal Magistrate below was clearly entitled to rely upon and give appropriate effect to the Tribunal's factual finding that relocation by the appellant was reasonable. 15 In the appellant's eight pages of written submissions, reference was made inter alia to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) [2004] FCAFC 263 and S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, however I was unable to discern or distil from those submissions any error of law explicit or implicit in the reasons for decision of the Federal Magistrate, and I am of the view that the appeal cannot succeed and must be dismissed. 16 Nevertheless it is appropriate that I should record that during the hearing the appellant sought to raise with the Court that he was recently informed of the death of his parents and the disappearance of his wife and child in India. I have no reason to believe otherwise that the appellant was genuine in making that disclosure, though no evidence has been formally provided to the Court to that effect. I informed the appellant that he should obtain advice on that obviously distressing occurrence, and it may perhaps be the case that no steps should be taken administratively to compel his return to India until he has had the opportunity to determine his response to that most unfortunate turn of events. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Conti.

Solicitor for the First Respondent: DLA Phillips Fox