AHN16 v Minister for Immigration
[2018] FCCA 1645
•29 June 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AHN16 & ORS v MINISTER FOR IMMIGRATION & ANOR | [2019] FCCA 1645 |
| Catchwords: MIGRATION – Administrative Appeals Tribunal – Refugee Review Tribunal – protection (class XA) visa – internal relocation – test of ‘reasonable, in the sense of practicable’ – whether the tribunal considered the applicants’ claims for protection – whether the tribunal incorrectly applied Appellant S395 – application dismissed. |
| Cases cited: AppellantS395/2002 v Minister for Immigration and Multicultural Affairs (2004) 216 CLR 473 Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 DFZ16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2427 Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 MZANX v Minister for Immigration and Border Protection [2017] FCCA 2564 SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40 SZTEO v Minister for Immigration and Border Protection (2016) 239 FCR 1 |
| First Applicant: | AHN16 |
| Second Applicant: | AHO16 |
| Third Applicant: | AHP16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File number: | MLG 261 of 2016 |
| Judgment of: | Judge Mercuri |
| Hearing date: | 15 February 2018 |
| Date of last submission: | 15 February 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 29 June 2018 |
REPRESENTATION
| Counsel for the applicants: | Mr A Aleksov |
| Solicitors for the applicants: | Carina Ford Immigration Lawyers |
| Counsel for the respondents: | Mr M Hosking |
| Solicitors for the respondents: | Sparke Helmore |
ORDERS
A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 18 January 2016.
A writ of mandamus issue directed to the second respondent requiring it to determine the applicants’ application according to law.
The first respondent pay the applicants’ costs of the proceedings in a sum to be fixed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 261 of 2016
| AHN16 |
First Applicant
| AHO16 |
Second Applicant
| AHP16 |
Third Applicant
And
| MINISTER FOR IMMIGRATION AND BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision made by the second respondent, the Administrative Appeals Tribunal
(“the tribunal”) on 20 January 2016. In that decision, the tribunal affirmed a decision of a delegate of the first respondent, the
Minister for Immigration and Border Protection (“the Minister”) made on 3 July 2014 not to grant the applicants protection (class XA) visas (“the visas”).
The tribunal’s decision is found in the Court Book at pages 332 to 350.
By their amended application, the applicants sought:
a)a writ of certiorari issue to quash the decision of the tribunal;
b)a writ of mandamus be directed to the tribunal, requiring them to determine the applicants’ application according to law; and
c)the first respondent pay the applicants’ costs of and incidental to the proceeding.[1]
[1] See the applicants’ amended application filed 18 January 2018.
The applicants claim to have a well-founded fear of persecution in their home region of Punjab in India and face a real risk of significant harm there on the basis that the first and second applicants are members of the same village or gotra who are married to each other.
The tribunal accepted this claim but found that the applicants did not satisfy the criteria in section 36(2)(a) or (aa) of the
Migration Act 1958(Cth) (“the Act”) on the basis that it would be reasonable in the circumstances for them to relocate to a region of India other than Punjab, where they would not face a real chance of serious harm or a real risk of significant harm.
Background and the applicants’ claims
The following summary of the background to this matter, which is uncontroversial, is taken from the Minister’s submissions.
The first applicant is a Sikh and a citizen of India.[2] He arrived in Australia on 7 April 2009 on a student visa and returned to India a number of times after that date.[3] The first and second applicants married in India on 29 December 2011 without their families’ permission or knowledge.[4] The second applicant arrived in Australia on 1 July 2013 on a student dependent visa.[5] The third applicant was born in Australia on 27 August 2013.[6]
[2] Court book at pages 13, 46 and 343 at paragraph [55].
[3] Court book at page 248.
[4] Court book at page 343 at paragraph [59].
[5] Court book at page 248.
[6] Court book at page 248.
On 28 August 2013, the applicants applied for the visas.[7]
[7] Court book at pages 1 to 25 and 38 to 51.
On 3 July 2014, a delegate of the Minister refused to grant the applicants the visas.[8].
[8] Court book at pages 247 to 274.
On 16 July 2014, the applicants applied to the then Refugee Review Tribunal[9] for a review of the delegate’s decision.[10] The applicants provided written submissions in support of that application.[11]
[9] Now Administrative Appeals Tribunal (“the tribunal”).
[10] Court book at pages 275 to 280.
[11] Court book at pages 281 to 289.
On 12 August 2015, the applicants appeared before the tribunal to give evidence and present arguments with the assistance of an interpreter.[12]
[12] Court book at pages 298 to 300.
On 17 August 2015, the applicants sent an email to the tribunal attaching various medical records in relation to the first applicant.[13]
[13] Court book at pages 323 to 327.
On 20 January 2016, the tribunal affirmed the delegate’s decision.[14]
[14] Court book at pages 332 to 350.
The tribunal’s reasons
The tribunal summarised the applicants’ claim as follows:
a)The applicants married without their respective families’ permission on 29 February (sic) 2011.
b)The applicants are Sikh and the second named applicant’s family objected to the marriage because they are from the same village/gotra.
c)They fear harm from all members of the second named applicant’s family; and if they returned to India, her family will take steps to separate them or to kill the first named applicant. The second named applicant’s second eldest uncle is a former police officer and a former panchayat leader and her eldest uncle is currently a nambardar (village leader). Her first cousin is a former police officer.
d)During his trips to India from 22 October 2012 and
5 February 2013, the first named applicant and his brother were attacked by members of his wife’s family at a temple in Sangrur. There was also a separate attack by members of his wife’s family on 20 January 2013. Her family registered a false case against him with the police in twenty thirteen.e)The first named applicant has tried to claim protection for himself and his wife with the Panjab State Human Rights Commission and the Punjab Police.
f)They are unable to relocate to another part of India as the first named applicant will be too stressed to work and his wife’s family may track him down if he uses social media.[15]
[15] Court book at page 337 at paragraph [28].
The tribunal set out the country information on which it relied in its decision record[16] and subsequently outlined its assessment of the applicants’ claim to have a well-founded fear of persecution.[17]
[16] Court book at pages 338 to 343 at paragraphs [30] to [54].
[17] Court book at pages 343 to 345 at paragraphs [56] to [66].
Many of the factual matters in this claim are not disputed.
The tribunal accepted that the first and second applicants are from the same gotra or village, and that according to Sikh custom, their marriage is considered incestuous.[18] The tribunal also accepted that the second applicant’s family were angered by the marriage, and have attempted to harm the first applicant and his brother.[19]
[18] Court book at page 343 at paragraph [57].
[19] Court book at page 343 at paragraph [57] and page 344 at paragraph [60].
In response to questions by the tribunal about the possibility of relocation, the applicants provided the following responses:
a)they would not be safe anywhere within India because of the way they breached their traditions;[20]
b)their marriage certificate is evidence of the fact that they are from the same gotra and this might lead to a refusal of employment and accommodation;[21]
c)if Sikh people found out about their relocation, they would be excluded from any temple or subjected to harassment or stone throwing;[22]
d)they would be unable to live openly in India;[23]
e)they would have no social or family support in India;[24] and
f)the first applicant has not been coping because of the fear of returning to India and has been receiving mental health services from a psychologist under a mental health plan.[25]
[20] Court book at page 344 at paragraph [63].
[21] Court book at page 344 at paragraph [63].
[22] Court book at page 344 at paragraph [63].
[23] Court book at page 345 at paragraph [63].
[24] Court book at page 345 at paragraph [63].
[25] Court book at page 345 at paragraph [65].
On the basis of the evidence about the reaction of the second applicant’s family to the marriage and country information concerning reports of violence involving couples from the same gotra or village, the tribunal found that the applicants would face a real chance of serious harm from the second applicant’s family in their home region of Punjab in India.[26]
[26] Court book at page 345 at paragraph [66].
The tribunal went on to find that the applicants would not have access to adequate state protection in Punjab.[27]
[27] Court book at pages 345 to 346 at paragraphs [67] to [69].
The tribunal:
a)considered whether the applicants would face a real chance of serious harm within the entirety of India, or whether there were areas of India in which the applicants would not have a
well-founded fear of persecution;[28] andb)having found that the applicants would only face a real chance of serious harm in their home region of Punjab,[29] considering whether it would be reasonable to expect the applicants to relocate to an area in India outside of Punjab.[30]
[28] Court book at pages 346 to 348 at paragraphs [71] to [79].
[29] Court book at page 348 at paragraph [79].
[30] Court book at pages 348 to 349 at paragraphs [80] to [89].
In considering the first point set out in paragraph 21(a) above, the tribunal observed that India has “a massive population and enormous cities”[31] and that even the police have difficulty tracking down individuals across the nation.[32]. The tribunal found that:
…the harm feared by the applicants is localised to Punjab where the second named applicant’s family resides but… the applicants could relocate to other Indian states where there is no appreciable risk of the occurrence of the feared persecution.[33]
[31] Court book at page 347 at paragraph [73].
[32] Court book at page 346 at paragraph [72].
[33] Court book at page 347 at paragraph [73].
The tribunal found that, if the applicants relocated to an area outside of Punjab, it was unlikely that the fact that they are from the same gotra or village would become known to their new community.[34] The tribunal also found that it would be reasonable for the applicants not to tell the second applicant’s family that they had returned to India.[35]
[34] Court book at page 347 at paragraph [78].
[35] Court book at page 347 at paragraph [77].
The tribunal concluded that although the applicants would face a real risk of significant harm in Punjab, that it would be reasonable, in the sense of practicable, for them to relocate to an area of India other than Punjab where they would not face a risk of significant harm.[36]
[36] Court book at page 348 at paragraph [79].
In relation to the question of reasonable practicability insofar as the applicants’ relocation to another part of India, the tribunal considered the applicants’ comments that they would have limited financial resources and no family support. The tribunal also considered the applicants’ particular circumstances and the country information available at the time, and found that in the circumstances, it would be reasonable in the sense of practicable, for the applicants to relocate to an area in India outside the state of Punjab.[37]
[37] Court book at page 348 at paragraphs [80] to [84].
On this basis, the tribunal found that none of the applicants satisfied the criteria in section 36(2)(a) or (aa) of the Act.[38]
[38] Court book at page 349 at paragraph [90].
As stated, the first named applicant raised concerns about his mental health. The tribunal’s handling of this matter in the context of the relocation issue is dealt with in more detail below in relation to ground 2.
Ground 1
The first ground of review outlined in the applicants’ application filed on 11 February 2016 was:
The Tribunal erred by not applying the correct test for internal relocation.
Particulars
(a)Whether internal relocation is available depends on whether it is reasonable, in the sense of practicable. What is reasonably practicable depends on all of these circumstances including the circumstances particular to the person, and involves an assessment of the impact of the relocation on that person to the particular place to which that person would be reasonably expected to relocate.
(b)The Tribunal identified ‘other Indian cities’ (at [73]) and ‘another state in India’ (at [85]) as the postulated place of relocation.
(c)The Tribunal did not identify the postulated area of relocation with any greater particularity than ‘other Indian cities’ and ‘another state in India’. This gives rise to the inference that the Tribunal failed to apply the correct test, because the particular circumstances of relocation facing the applicant would necessarily differ depending on the particular place to which relocation is being postulated, and ‘other Indian cities’ and ‘another state in India’ lack the necessary degree of specificity to enable that enquiry to be undertaken: Plaintiff M13-2011 v Minister for Immigration [2011] HCA 23. (emphasis in original)
In support of this ground, counsel for the applicants referred to the principles in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 in which the High Court noted:
The “internal relocation principle” is well established. According to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country. The connection of the principle to the definition of a refugee in the Convention, and the conditions for the principle’s application, were explained by this Court in SZATV.[39]
[39] Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 at [21].
…
In SZATV, Gummow, Hayne and Crennan JJ observed that the Convention definition of a refugee is drawn into Australian law by s 36(2) of the Migration Act, which provides the criteria for granting a protection visa. Their Honours added that any principle respecting internal relocation must therefore be distilled from the text of the Convention.[40]
[40] Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 at [22].
As noted by the High Court, the Convention itself does not make any express reference to relocation. However, it went on to say:
Whilst Art 1A(2) does not make express reference to relocation, in the sense of there being a place within a person’s country where he or she could reasonably be expected to relocate, such a restriction on the Convention’s protection may be seen to arise from the causative condition expressed in the definition of “refugee”. If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee.[41] (emphasis added)
[41] Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 at [23].
The High Court concluded that “the factum upon which the principle of relocation operates is that there is an area in the visa applicant’s country of nationality where he or she may be safe from harm…”[42]
[42] Minister for Immigration and Border Protection v SZSCA [2014] HCA 45 at [25].
In MZANX v Minister for Immigration and Border Protection
[2017] FCCA 2564 (“MZANX”), her Honour Justice Mortimer, in considering whether the tribunal had committed a jurisdictional error by failing to consider whether the proposed relocation in that case was reasonable and practicable, stated:In any context, whether refugee law or otherwise, what is “practicable” and “reasonable” for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location. [43]
[43] MZANX v Minister for Immigration and Border Protection [2017] FCCA 2564 at [51].
Her Honour went on to conclude that:
In the context of relocation, detailed consideration of the circumstances “on the ground” in the area proposed for relocation will be required. General statements will be insufficient, because what is in issue is the practical and realistic ability of an individual to re-start her or his life in a new place, without undue hardship… In order to determine whether, as a conclusion, relocation is “practicable” and “reasonable” for a particular individual, a level of comfortable satisfaction based on probative material must be reached by the decision-maker about what will face that particular individual and how she or he will cope. [44]
[44] MZANX v Minister for Immigration and Border Protection [2017] FCCA 2564 at [55].
In response to her Honour Justice Mortimer’s comments referred to and relied upon by the applicants’ counsel, counsel for the Minister referred to a decision of Judge Smith in which the court considered MZANX and observed:
The level of scrutiny that was referred to in MZANX is not a universally applicable one. What is required depends… on the facts of each case.[45]
[45] DFZ16 v Minister for Immigration and Border Protection & Anor [2017] FCCA 2427 at [51].
Counsel for the applicants conceded that in considering relocation issues, it is not necessary for the tribunal to identify a place for possible relocation with any specificity; and that it was sufficient for the tribunal to simply find that the applicants could relocate to a place other than the applicants’ home state.[46] However, it was submitted that the assessment of reasonableness would then need to be assessed against the identified area, however specific or general it is.[47] In this case, it was submitted on behalf of the applicants that the tribunal approached the identification of a potential place to which the applicants could be relocated with such a high level of generality that it fell into error.[48] That is, the tribunal failed to properly assess the reasonableness of the relocation and therefore failed to perform its statutory task.[49]
[46] Transcript page 4 at lines 42 to 47.
[47] Transcript page 5 at lines 1 to 3.
[48] Transcript page 7 at lines 24 to 36.
[49] Transcript page 8 at lines 23 to 27.
In his oral submissions, counsel for the Minister accepted that the tribunal did not identify with specificity, a place to which the applicants could relocate, but submitted that they did consider whether the applicants could relocate to a large city outside of the state of Punjab which did not have a large community of Sikhs.
The Minister submitted that it was not always necessary for the tribunal to identify a particular place to which an applicant might be able to relocate:
…provided that, in the circumstances of the particular case, and in the context of the “framework set by the particular objections raised to relocation”, the Tribunal has sufficient information to determine whether it is reasonable for the applicant to relocate, the Tribunal may undertake the internal relocation analysis by reference to areas generally outside the place where the applicant fears harm.[50]
[50] Paragraph 26 of the first respondent’s written submissions filed 18 January 2018.
So much was conceded by the applicant. The question was whether the tribunal undertook the requisite analysis in this case.
In SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40, their Honours Gummow, Hayne and Crennan JJ relevantly said that in considering if it is “reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”, what “is ‘reasonable’ in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality.”[51]
[51] SZATV v Minister for Immigration and Citizenship & Anor [2007] HCA 40 at [23]-[24].
I accept the Minister’s submission that the tribunal considered the question of whether the applicants’ fear of persecution was limited to a particular area within India and concluded that it was limited to Punjab where the second applicant’s family lived.
In concluding that the applicants could relocate to a large city within India which did not have a large Sikh population, the tribunal then turned to consider whether such relocation was reasonable in all of the circumstances.
In undertaking this exercise, the tribunal had regard to those matters which the applicants raised as barriers to relocation.[52] To this extent, the objections raised by the applicants were not limited in any way to particular areas or parts of India (other than those limited to Punjab). It was therefore open to the tribunal to assess the objections raised by the applicant generally to large cities outside of the state of Punjab and I find that this is what the tribunal did in this instance. This is evidenced from the tribunal’s decision record at paragraphs 71, 73, 74, 78, 80, 81, 82, 83 and 84.
[52] See court book at pages 346 to 349 at paragraphs [70] to [89].
Ground 1 is therefore not made out.
Ground 2
The second ground of review in the applicants’ application filed on
11 February 2016 is:
The Tribunal failed to consider a claim that arose on the materials before the Tribunal with respect to the applicant’s (sic) claims for protection under each of s36(2)(a) and 36(2)(aa) of the Migration Act 1958 (Cth) (Act).
Particulars
(a)Amongst other things, the applicant claimed that he would be unable to relocate to another part of India as he would be too stressed to work.
(b)The Tribunal accepted that the applicant suffered from anxiety and depression and was being treated with medication.
(c)The Tribunal found that his condition would deteriorate upon his return to India and that he would likely require support and treatment for this (at [89]).
(d)The Tribunal did not address this claim for protection in its statement of reasons from which it is to be inferred that the Tribunal did not consider this claim in its assessment of either ss 36(2)(a) and 36(2)(aa) of the Act.
In essence, this ground turns on the fact that whilst the tribunal accepted that the first named applicant suffered from anxiety and depression for which he was being treated and would likely require ongoing treatment upon his return to India, it failed to address this aspect of his claim in considering the relocation issue.
The first named applicant’s mental health was one of the objections raised in relation to the relocation issue. The applicants conceded that the first named applicant’s mental health was addressed in the tribunal’s reasons. However, it was submitted by the applicants’ counsel that the tribunal failed to deal with this issue in the context of its consideration of the relocation issue. Rather, it was dealt with under the heading, ‘Other matters’ and this it was said, is evidence of the tribunal’s failure to “appreciate that the applicant’s mental health was an essential element of his case that relocation was not a viable option for him”.[53]
[53] Paragraph 3 of the applicants’ written submissions filed 18 January 2018.
Section 65 of the Act relevantly provides that if the Minister (and by inference, the tribunal on review) after considering a valid application, is satisfied that among other things, the criteria prescribed by the Act or the regulations have been satisfied, the Minister must grant the visa. In the context of a protection visa, the relevant criteria is contained within section 36(2)(a) (in the case of a refugee in respect of whom the Minister is satisfied that Australia has protection obligations) or section 36(2)(aa) of the Act (in the case of a person to whom Australia has complementary obligations).[54]
[54] See also section 36(2)(b) and (c) of the Act in respect of family members.
In Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 (“Carrascalao”), the full court of the Federal Court reviewed a series of cases which “addressed the meaning of a statutory obligation of a decision-maker to ‘consider’ particular matters”.[55] Carrascalao involved an application for a review of the Minister’s decision to cancel a visa. The question in that case was whether the Minister had considered the merits of each visa cancellation prior to making the decision to cancel the visa. Relevantly, the full court stated that the term ‘consider’ requires the decision maker to “engage in an active intellectual process in giving consideration to the relevant matters or criteria”.[56]
[55] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [36].
[56] Carrascalao v Minister for Immigration and Border Protection [2017] FCAFC 107 at [44].
It was submitted that a similar approach is required when determining whether the tribunal ‘considered’ the objections raised by the applicants in relation to the first named applicant’s mental health in the context of the reasonableness of any relocation within India.
Quite correctly, counsel for the applicants submitted that knowledge of something is not the same as giving it consideration. The fact that the tribunal has recorded its comments in relation to the first named applicant’s mental health is not necessarily evidence of its giving those comments sufficient consideration in the context of determining whether it would be reasonable for the applicants to relocate to another place within India, other than Punjab.
It was further submitted on behalf of the applicants that, the fact that the discussion about the first applicant’s mental health was recorded under the heading, ‘Other matters’ and not in the section dealing with relocation generally was indicative of the fact that, the tribunal had failed to consider (in the sense of engaging in an active intellectual process) with the argument that it was not reasonable, in the sense of practicable, for the applicants to relocate because of the impact that any such relocation would have on the first named applicant’s mental health.
Indeed, it was submitted on behalf of the applicants that so much is evident from the fact that the tribunal decision record deals with the relocation issue and all matters relevant to it in paragraphs 70 to 88 inclusive.[57] Counsel for the applicant pointed to paragraph 88 as being a statement of conclusion on that point.
[57] Transcript page 11 at line 40 to page 12 at line 5.
Counsel for the Minister submitted that on a fair reading of the tribunal’s decision record, it was clear that the tribunal had considered the submissions made on the applicants’ behalf regarding the first applicant’s mental health and the impact of relocation to India of that condition.[58]
[58] Transcript page 20 at line 33 to page 21 at line 2.
Moreover, the Minister’s case was that the proposition advanced by the applicants would require an overly strict reading of the tribunal’s reasons. As noted by the High Court in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259:
The reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.[59]
[59] Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [272].
Accepting the comments in Wu Shan Liang, I find that on a fair reading of the tribunal reasons, it had already concluded that it was reasonable for the applicants to relocate before it turned to consider the first applicant’s mental health. So much is clear from a fair reading of paragraphs 84 to 89 even if one were to ignore the heading under which these paragraphs are found. Those paragraphs set out the conclusions reached by the tribunal on the reasonableness of relocation. There is nothing in those paragraphs or indeed in any of the tribunal’s discussion about relocation which appears to deal with the first applicant’s mental health concerns and which could be said to inform the tribunal’s conclusions set out in paragraphs 84 to 88.[60]
[60] Court book at page 348 at paragraphs [84] to [85] and page 349 at paragraphs [86] to [88].
In addition, paragraph 89 which deals with the first applicant’s mental health, not only appears after the tribunal’s conclusions about the reasonableness of relocation and under a different heading, but it makes no reference either expressly or implicitly to relocation.[61]
[61] Court book at page 349 at paragraph [89].
Having regard to these factors and the nature of the statutory task in relocation cases (namely that the tribunal must consider the reasonableness and practicality of any relocation, having regard to the particular circumstances of the applicant and the impact on that person of relocation), I find that the tribunal failed in this instance to consider the particular mental health concerns raised by the first applicant in this instance and the impact of those concerns on any possible relocation.
Ground 2 therefore is made out.
Ground 3
The third ground of review in the applicants’ application filed on
11 February 2016 as amended on 18 January 2018 is:
The Tribunal failed to correctly apply the statutory criteria in that it purported to rely on findings about what the applicants should do, rather than what may happen upon return.
No particulars were provided, however, the applicant’s written submissions referred to the tribunal’s comments in paragraph 77 namely “the Tribunal finds that it would be reasonable for them to return to India but not disclose this to the second named applicant’s family.”[62]
[62] Court book at page 347 at paragraph [77].
The tribunal found that “people in same gotra marriages comprise a particular social group in India.”[63] The tribunal also found that:
…the applicants face a real chance of persecution at the hands of the second named applicant’s family in the reasonably foreseeable future in their home area of Punjab on account of a particular social groups (sic) consisting of members of inter-gotra/intra village marriage in Punjab.[64]
…
..if (sic) would be reasonable for them to return to India but not disclose this to the second named applicant’s family. If the second named applicant’s family were unaware that she and her family have returned to India given the length of time since there has been any contact with them, there would be no reason for her family to contemplate searching for them.[65]
[63] Court book at page 343 at paragraph [58].
[64] Court book at page 345 at paragraph [66].
[65] Court book at page 347 at paragraph [77].
It was submitted on behalf of the applicant that, this reasoning is impermissible and that it is analogous to the reasoning in
AppellantS395/2002 v Minister for Immigration (2004) 216 CLR 473 (“Appellant S395”) that a requirement for a person returning to their country of origin to ‘live discretely’ constituted a jurisdictional error.
The Minister properly conceded that it is no answer to an applicant’s claim of a well-founded fear of persecution to say that the applicant could take steps to hide the relevant convention characteristic in respect of which they face or fear persecution.
As noted by McHugh and Kirby JJ in Appellant S395:
The Convention would give no protection from persecution for reasons of religion or political opinion if it was a condition of protection that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutor. Nor would it give protection to membership of many a ‘particular social group’ if it were a condition of protection that its members hide their membership or modify some attribute or characteristic of the group to avoid persecution. Similarly, it would often fail to give protection to people who are persecuted for reasons of race or nationality if it was a condition of protection that they should take steps to conceal their race or nationality.[66]
[66] AppellantS395/2002 v Minister for Immigration (2004) 216 CLR 473 at [40].
The principles arising from Appellant S395 do not apply to a person who might be expected to hide or change a characteristic which is not a convention characteristic or manifestation of such a characteristic.[67]
[67] See Gageler J in Minister for Immigration and Border Protection v SZSCA [2014] HCA 45; (2014) 254 CLR 317 and SZTEO v Minister for Immigration and Border Protection (2016) 239 FCR 1.
Counsel on behalf of the Minister submitted that the applicants ought not disclose their location. That is not a convention characteristic nor is it a manifestation of a convention characteristic. As such, it was submitted that Appellant S395 has no application to this case.[68]
[68] Transcript page 21 at lines 21 to 31.
It was further submitted on behalf of the Minister that the second named applicant’s family were already aware of the applicants’ status as two people from the same gotra who are married. This is not what the tribunal was suggesting they keep from the second named applicant’s family. There is some merit to this submission.
I am persuaded by the Minister’s submissions and find that the tribunal suggested that the applicants not disclose the fact that they have returned to India to the second named applicant’s family.[69] So much is clear from the balance of that paragraph which refers to the fact that if the second named applicant’s family does not know that the applicants have returned to India, they are less likely to try and search for them, keeping in mind their wealth and influence.
[69] Court book at page 347 at paragraph [77].
In those circumstances, I am not satisfied that the tribunal’s comment at paragraph 77 of the decision record brings this case within the circumstances identified in Appellant S395. I find that in suggesting that the applicants not disclose their return to India or their location to the second applicant’s family, the tribunal did not impose a requirement to hide or change a convention characteristic or a manifestation of such a characteristic.
Whilst there may be situations where the thing which is being suggested ought to be kept secret is an inherent manifestation of the convention characteristic which attracts protection and that this would be enough to offend the principles identified in Appellant S395, this is not such a case.
In coming to this conclusion, I have also had regard to the fact that the tribunal’s comments were directed at keeping the applicants’ return to India secret from a limited number of people, namely the second applicant’s family, who were already aware of their status as members of a particular social group.
Ground 3 is not made out.
Conclusion
As the second ground of review has been made out, writs will be issued quashing the decision of the second respondent and directing the second respondent to determine the matter according to law.
The first respondent is also ordered to pay the applicant’s costs in a fixed amount.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Mercuri
Associate:
Date: 29 June 2018
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