SZDCT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 329 (10 March 2005)

Last Updated: 1 April 2005

FEDERAL COURT OF AUSTRALIA

SZDCT v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 329

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


Randhawa v The Minister (1994) 52 FCR 437, applied




























SZDCT v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1904 OF 2004

GYLES J
10 MARCH 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1904 OF 2004

BETWEEN:	SZDCT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	GYLES J
DATE OF ORDER:	10 MARCH 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 1904 OF 2004

BETWEEN:	SZDCT APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	GYLES J
DATE:	10 MARCH 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 This is an appeal from a judgment of his Honour Federal Magistrate Raphael of 3 December 2004 in which his Honour dismissed an application to review a decision of the Refugee Review Tribunal handed down on 25 February 2004, which had affirmed the decision of the delegate of the Minister not to grant the appellant a protection visa.

2 The appellant is an Indian from Chennai who practises the Muslim religion. The Tribunal accepted that he had suffered harassment from Hindu nationalists in Chennai, but found that relocation elsewhere in India would solve the problem. Having, in essence, accepted the claims of the appellant, the Tribunal considered the independent evidence, and took the view that there was not a real chance that he will face persecution for his religion if he returned to India and located appropriately there.

3 The application to the Federal Magistrates Court disclosed no proper ground of appeal, and the appellant was not represented. The learned Federal Magistrate nonetheless went through all possible ways of looking at the notice of appeal and took into account what was said to him on that occasion by the appellant. Indeed, many of the grounds that the Federal Magistrate dealt with were not strictly open before him on the basis of the initiating process.

4 The litigant unfortunately remains without legal representation. The consequence is that his notice of appeal to this Court is also lacking any proper ground of appeal. It refers to certain cases and principles without any attempt to relate them to the judgment under appeal. The appellant did not file submissions prior to the case, and his address today has been based upon reiterating the difficulties which a practising Muslim finds in India. He says that the nature of the practice of the Muslim religion involving attendance at a Mosque to say prayers a number of times a day means that it is impossible for a Muslim, in effect, to hide.

5 It seems to me that the Tribunal approached the matter on that footing. It did not base its decision upon the appellant not practising his religion. However, it did say that his relatively low profile did not mark him out for special treatment. He would suffer the same risks as other practising Muslims. There is, no doubt, a real question as to the position of practising Muslims in many parts of India, but as I endeavoured to explain to the appellant, that question is a question of fact to be decided in his case by the Refugee Review Tribunal. Neither the Federal Magistrates Court nor this Court has any role in making that decision.

6 In order to set aside the Magistrate's decision I would need to find an appealable error in the reasons of the Magistrate or a failure to deal with something that should have been dealt with. The appellant has not been able to point to either. The written submissions by counsel for the respondent give a very fair summary of the proceedings below, and indeed, go beyond that which is necessary for my purposes. I propose to initial and date those submissions and place them with the papers, as I effectively adopt them.

7 For my purposes, however, it is sufficient to say that the question of relocation, which is at the heart of the case of the appellant, was dealt with by the Tribunal and, most importantly from my point of view, was dealt with by the learned Federal Magistrate in accordance with the decision in Randhawa v The Minister (1994) 52 FCR 437. I am satisfied by the submission of counsel for the Minister that the current state of the law in relation to relocation is still correctly stated in that decision for cases such as the present.

8 Therefore, whatever one’s view may be about the position of Muslims in India, I am satisfied that no error has been disclosed in the manner in which the learned Federal Magistrate dealt with this appeal and, unfortunately from the point of view of the appellant, that means that there can be no order remitting the matter to the Tribunal.

9 The appeal is dismissed. I order that the appellant pay the costs of the respondent.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.

Associate:

Dated: 31 March 2005

Counsel for the Appellant:	The Appellant appeared in person
Counsel for the Respondent:	G Johnson
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	10 March 2005
Date of Judgment:	10 March 2005