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MIGRATION - Review of Tribunal decision - fear of persecution in home-state in India - possibility of relocation to another state - requirement to consider fear in home-state where relocation possible - procedural fairness.

NAOK v Minister for Immigration [2002] FMCA 269 (30 October 2002)

NAOK v Minister for Immigration [2002] FMCA 269 (30 October 2002)
Last Updated: 11 November 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAOK v MINISTER OF IMMIGRATION
[2002] FMCA 269



MIGRATION - Review of Tribunal decision - fear of persecution in home-state in India - possibility of relocation to another state - requirement to consider fear in home-state where relocation possible - procedural fairness.



Randhawa v Milgea (1994) 52 FCR 437

Syan v RRT & Anor (1995) 61 FCR 284

Aras v MIEA (Unreported 20 March 1998)

NAAV v The Minister [2002] FCAFC 228

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

Judiciary Act 1903 (Cth) s.39B

Constitution s.75

Applicant:
NAOK



Respondent:


MININSTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ536 of 2002



Delivered on:


30 October 2002



Delivered at:


Sydney



Hearing Date:


30 October 2002



Judgment of:


Raphael FM



REPRESENTATION

Solicitors for the Applicant:


Mr Jyoti Bharati of Bharati Solicitors



Counsel for the Respondent:


Mr J Smith



Solicitors for the Respondent:


Mr Michael Snell of Sparke Helmore Solicitors



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in accordance with Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4000.



FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ536 of 2001

NAOK


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant is a citizen of India. He arrived in Australia on 9 March 2001 and was immigration cleared. On 19 March 2001 he lodged an application for a protection (class XA) visa with the department which would entitle him to consideration for a visa under sub class 866. On 19 April 2001, a delegate of the Minister refused to grant a protection visa and on 3 May 2001 the applicant applied for a view of that decision. The review of the decision was carried out by the Refugee Review Tribunal made on 23 May 2002 and handed down on 18 June 2002.

2. The gravamen of the Tribunal's decision was that the applicant who is a Muslim from Rodu village, Nagour in the Rhajastan State could, even if he had a genuine fear of persecution for convention reasons in his home environment, relocate to a different part of India and live there in safety.

3. The applicant seeks a review of that decision claiming it is unlawful on three grounds. The first ground relates to the applicant's legitimate expectations of the judicial process within Australia. Mr Bharati who appeared on behalf of the applicant moved on the misapprehension that the jurisdiction of this court and the jurisdiction of the High Court in respect of the review of a decision of the Refugee Review Tribunal were different.

4. Mr Bharati argued that it was unfair for the applicant to be required to put his case to the High Court. I cannot see any merit in this argument. The recent amendments to the Immigration Act have given this court all the powers of the Federal Court under section 39B of the Judiciary Act to deal with decisions of this nature, subject always to section 474 of the Migration Act. Section 39B has given the Federal Court the powers of the High Court under section 75 of the constitution.

5. The second argument addresses one of the grounds available for review following the decision of Dixon J in R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 namely that the decision maker is required to have made a bona fide attempt to exercise his or her power. Mr Bharati's allegation in this regard is that the Tribunal concentrated too heavily on relocation and did not consider in any detail the applicant's real fear of persecution in his home state. Mr Bharati supplemented that with remarks concerning the generally explosive situation in India at the time the Tribunal decision was made. He pointed to race riots in Bombay and Gujarat and indicated he believed it was unsafe throughout the country.

6. It is true that the Tribunal's decision was based principally on the finding that it was not unreasonable for this applicant to relocate. The Tribunal [52 and 54 CB] dealt with this aspect of the matter in some detail. The Tribunal referred to the appropriate cases on the matter, such as Randhawa v Milgea (1994) 52FCR 437 and applied the tests set out in that case to the personal situation of this applicant. The Tribunal found:

"The applicant is a 38 year old farmer who has completed secondary education. The Tribunal notes that he has had the financial and personal ability to arrange a visa for and travel to Australia (and has a wealthy relative in India who assisted him in this endeavour). He speaks and writes Hindi (and from his behaviour at the hearing understands and speaks some English). The Tribunal also notes he was able to find employment, and a residence in Australia, without any difficult.

In light of his ability to relocate to Australia with minimal difficulties, find employment in an Indian restaurant, (in other words find employment outside his field of occupation), and the fact that he has a patron (in the form of a wealthy relative), who in the past has shown a considerable willingness to assist him, the Tribunal is satisfied that relocation is a reasonable and feasible option for the applicant."

7. The Tribunal referred to Syan v RRT & Anor (1995) 61FCR 284 and Aras v MIEA an unreported judgment of Finklestein J of 20 March 1998. The Tribunal also considered from the country information available to it, the general ability of people when in India to travel freely internally and came to the conclusion that this test was also satisfied.

8. The method by which the tribunal came to its conclusion seems to me to be difficult to criticise and, such decision not itself indicating any predisposition, it follows that there can be no predisposition or lack of good faith in not considering in great detail the applicant's fear of persecution in his home area. In fact the tribunal did give this some consideration and was prepared to accept, against what appears to be its better judgment, the applicant's evidence in this regard.

9. Finally, Mr Bharati argued that there was some requirement for procedural fairness. He described this as the right to know what questions would be asked by the tribunal. He explained that the applicant was alone in the tribunal. He had no representation and he was unaware of what might occur. The applicant was entitled to representation by a migration agent and it is not entirely clear to me whether or not such a person did appear. There is certainly documentation in the appeal book indicating that an agent was appointed. However, as Mr Smith quite rightly pointed out, there is no authority to the effect that natural justice requires an applicant before a Refugee Review Tribunal to be told what questions are going to be put to him, merely that there is put to him matters which the tribunal considers are important to the decision which it is about to take. A perusal of this decision would indicate that such questions and concerns were put to the applicant, who had a full opportunity to answer them.

10. To a great extent the debate above is moot because it has now been made clear by the decision of the Full Bench of the Federal Court of Australia in NAAV v The Minister [2002] FCAFC 228 that a lack of procedural fairness is no longer ground upon which this court can review a decision of the Refugee Review Tribunal.

11. I must therefore dismiss this application. I order that the applicant pay the respondent's costs which I assess in accordance with Part 21, rule 21.02(2)(a) of the Federal Magistrates Court Rules in the sum of $4000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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