Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: cited
The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437. [sic] 4 The submission was made on behalf of the Minister that the grounds in the notice of appeal are each without any particularisation whatsoever. That is true, but it does not seem to me that it would be a fair way to dispose of the appeal just to regard the grounds as so general as to not admit of a comprehensible challenge to the Magistrate's decision. 5 The Minister also approached the task of responding to the appeal in this way. In particular, regard was had to the way in which the Appellant had developed his case before the Federal Magistrates Court. That seems to me to be a very proper stance to take in the circumstances. In that regard, I also take into account the oral submissions which the Appellant made with dignity and succinctness. It was quite apparent from those, that like many persons without formal legal training, he found difficulty in distinguishing between the fact finding role consigned to the Tribunal, the judicial review role consigned to the Federal Magistrates Court, and the role which this Court has in deciding whether a Magistrate erred in law. 6 When one reads ground 2 of the notice of appeal, in conjunction with the case as developed before the Federal Magistrate, it becomes apparent that the particular concern which the Appellant has is that the Federal Magistrate ought to have held that the Tribunal breached s 424A of the Migration Act . In other words, his complaint about a denial of procedural fairness focuses upon whether the Tribunal ought to have put to him in writing for comment particular "information." It is to be remembered that s 422B of the Migration Act provides that the provisions which follow give the relevant procedural fairness content to the obligations which fall on the Tribunal. 13 Ground 4 in the notice of appeal seeks to find error on the part of the Magistrate in not in turn finding error on the part of the Tribunal in applying the principles laid down by a Full Court of this Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. Though not stated in so many words, I take it, as did the Minister in his submissions, that this is a reference to what might, perhaps inelegantly, be described as the "relocation" principle in refugee law. 14 After Randhawa , the High Court had occasion to consider that particular principle last year in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 ; (2007) 81 ALJR 1659. At pages 1664 and 1665, para 26, Gummow, Hayne and Crennan JJ observed in their joint judgment: in particular cases, territorial distinctions may have an apparent connection with the particular reason for the asserted well founded fear of persecution. There may be instances where differential treatment in matters of, for example, race or religion, is encountered in various parts of one nation state so that in some parts there is insufficient basis for a well founded fear of persecution. However, in other cases the conduct or attribute of the individual which attracts the apprehended persecution may be insusceptible of a differential assessment based upon matters of regional geography.