CZAY v Minister for Immigration
[2012] FMCA 50
•31 January 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CZAY v MINISTER FOR IMMIGRATION & ANOR | [2012] FMCA 50 |
| MIGRATION – Jurisdictional error – principles in relation to ‘relocation’ – relevance of domestic violence – extension of time. |
| Migration Act 1958, ss.417, 477(1) & (2) |
| Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 35 Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954) M. Crock & L. Berg, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia, (Sydney: The Federation Press, 2011) |
| Applicant: | CZAY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | CAG 66 of 2010 |
| Judgment of: | Neville FM |
| Hearing date: | 10 May 2011 |
| Date of Last Submission: | 21 July 2011 |
| Delivered at: | Canberra |
| Delivered on: | 31 January 2012 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Mr J Davey |
| Solicitors for the Applicant: | Herm Legal & Migration Services |
| Counsel for the Respondent: | Ms A Mitchelmore |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Application for an extension of time be allowed.
A writ of certiorari issue to bring the record - including the decision - of the Tribunal into this Court, and the decision of the Tribunal then be quashed.
A writ of mandamus issue to require the Tribunal to determine the matter according to law.
Pursuant to orders made on 10 May 2011, in the absence of any written submissions opposing costs within 14 days, the First Respondent pay the Applicant’s costs in accordance with the Rules of this Court in the sum of $6240.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAG 66 of 2010
| CZAY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
There are two applications before the Court: sequentially, the first relates to an application to extend time under s.477 of the Migration Act 1958 (“the Act”). The second application seeks to set aside the decision of the Refugee Review Tribunal (“the Tribunal”) made on 4th March 2010, to grant a ‘protection (class XA) visa’ under the Act, and an order for costs.[1]
[1] No Court Book was available to the Court in these proceedings. I do not say this critically of any of the parties, or of their respective legal advisers. A copy of the Tribunal’s decision was annexure B to Mr Davey’s affidavit, filed on 11th November 2010.
For the reasons that follow, the appropriate orders in this matter are: (a) to allow the application for an extension of time; (b) to quash the Tribunal’s decision of 4th March 2010; (c) to remit the matter to the Tribunal and to direct it to determine the matter according to law; and (d) in the absence of any opposing submissions within 14 days, to order that the First Respondent pay the costs of the Applicant in accordance with the Rules of this Court.
Further, by way of recommendation or notation only, having regard to the findings of the Tribunal that remain undisturbed, and having regard to the ruling of this Court in relation to the jurisdictional error that otherwise attends the Tribunal’s decision, the Court would be of the view that a visa of the kind sought by the Applicant should be granted.
These reasons proceed as follows: (a) procedural history; (b) factual background to the application (including country information); (c) the Tribunal’s decision; (d) the extension of time application (e) the substantive application (including submissions); (f) discussion and resolution.
A. Procedural History
The applications to which I have referred were filed on 11th November 2010. They came before the Court on 29th November at which time certain procedural directions were made, among other things, for the filing of submissions. The matter was re-listed for further directions on 18th February 2011.
An Application in a Case was filed on 10th December 2010 following notification to the Applicant on 6th December by a delegate of the First Respondent (“the Minister”) that the Applicant’s application for a Bridging Visa E had been granted, but only for seven days, following which she would be required to leave Australia. It would appear that there was some confusion on the part of the delegate in question (a Ms Cooper) as to whether the Applicant had lodged an application to review the Tribunal’s decision, or whether only an extension of time application had been filed.
In any event, the Application in a Case sought (a) to restrain the First Respondent from removing the Applicant until further order of the Court; (b) to restrain the Minister from placing the Applicant into immigration detention until further order of the Court; (c) a writ of mandamus to require the delegate in question to issue a Bridging Visa E to the Applicant (the Application actually referred to the Visa being granted to “the Respondent” – a rather superfluous exercise in all the circumstances); and (d) costs.
As matters transpired, and in the light of various “discussions” between those who appeared for the respective parties on 10th December (Mr Davey for the Applicant, and Ms Bush for the Minister) and the Bench, and later between the legal representatives themselves, on 16th December, by consent, orders were made dismissing the Application in a Case but reserving the costs of it.
The matter was heard on 10th May 2011. Orders were made on that occasion requiring the Minister to provide the Court with any information concerning the status of the Applicant’s spouse’s criminal proceedings and that person’s visa status. Otherwise, judgment was reserved.
Upon the delivery of Hayne J’s judgment in Plaintiff M13/2011 v Minister for Immigration and Citizenship, which, like the present matter, dealt with an extension of time application in the context of a decision that the Applicant in that case relocate internally within the country of origin in order to protect herself adequately from her aggressors, the parties to the current proceeding were invited, if they so wished, to make any further submissions in the light of his Honour’s judgment.[2] Both parties did so.
[2] Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667; (2011) 85 ALJR 740.
B. Factual Background to the Application (Including Country Information)
The following factual matters are not seriously in dispute. They are summarised in the decision of the Tribunal.
The Applicant is a national and former resident of India. She comes from, and her elderly parents continue to live, in the Punjab region of India, in the north of that country. She came to Australia with her husband who had been granted a student visa to study here. She married in 2007. She is a qualified nurse, and had worked in India in that capacity, at various hospitals, between 2005 and 2008. Her work history was before the Tribunal; it confirms that she was an excellent employee. Since arriving in Australia with her husband, she has worked at an aged care nursing home.[3]
[3] See the Tribunal’s Statement of Decision and Reasons, [2010] RRTA 149 at [20] – [27] & [33] ff. Hereafter, reference to the Tribunal’s decision will be thus: “RRTA followed by the relevant paragraph number(s).”
The Applicant contended that her relationship with her husband was an arranged marriage, and took place only one week after the arrangement had been concluded. Notwithstanding questions from the Tribunal as to whether, given her age (early 30s) and her good education, she could have refused the arranged marriage. The Applicant said that she could not do so because of the nature of the culture in India.
Upon leaving her husband, she lived in a women’s refuge. She left him in January 2009.[4]
[4] RRTA at [40] – [41].
The Applicant said that she had not returned to India since separating from her husband because his family keeps threatening to kill her family, and that if she returns to India her family will be killed. She had earlier given evidence of various threats having been made by her husband’s family to her family in the light of her refusal to continue to pay her wages into a joint account which was accessed solely for the husband’s benefit, and because she had left her husband.
The Applicant also gave evidence of being “tortured”, by which she meant that she was not fed by her husband (and his sister), both of whom beat her. She also maintained that her husband sexually assaulted her.
Upon opening a separate bank account, the Applicant later found out that $2000 had been withdrawn from it without her approval. This occurred on the day that she left her husband in January 2009.
She confirmed that since then her husband had contacted her family to have them pressure the Applicant to pay his study fees. The Applicant also said that her husband had made threats to kill her.[5]
[5] RRTA at [46].
The Applicant also said that her husband’s parents had threatened her parents shortly after the couple arrived in Australia, and that they were concerned only with “the money” and that they would kill the Applicant. She said that these threats can go on for generations in the Punjab area of India. Indeed, she said that her parents had been threatened by her father-in-law, her husband’s uncle, auntie and cousin.
The Applicant said that her parents are elderly, that her sister now lives and is married in Melbourne, and that her sister will help her parents.
Not unfairly, the Tribunal expressed puzzlement as to why her parents might be at any greater risk if the Applicant returned to India, to which she replied (as I understand the import of her response) that her presence would inflame the already difficult situation and thereby her parents would be at greater risk than they are now.
The Applicant confirmed to the Tribunal that her life would be at risk if she returned to India because (a) she no longer supported her husband financially, and (b) she had left her husband.[6] She expressed lack of trust in the police being able to protect her, because they do not listen “to the common woman” and because they can be ‘bought off.’
[6] RRTA [51].
The Applicant noted the Tribunal’s indication that there had been some improvement in India in relation to the incidence of violence against women, but said that while these reports of improvements are written, they are not true.[7]
[7] RRTA [52].
The Applicant rejected the Tribunal’s suggestion that, because she had good qualifications and work experience in India and Australia, it would be appropriate for her to live and work in large hospitals in the larger Indian cities. She said that it was not safe for women to live alone in such places.
It is sufficient to note that the Tribunal’s questioning of the Applicant’s sister corroborated her account of (a) events surrounding the Applicant’s relationship with her husband, and (b) the significant difficulties and dangers for a single woman, like the Applicant, living in the larger cities of India.[8]
[8] See RRTA at [55] – [59].
Country Information: It is sufficient to note the following summary of country information as set out in the Tribunal’s reasons.
The Tribunal notes at the outset that a 2006 US Department of State Report on human rights practices in India states that “honour killings continued to be a problem in the Punjab, and that police in Delhi had arrested 4 men and a father suspected of ordering an honour killing of his daughter for “living separately from her husband.””[9]
[9] RRTA at [66].
The Tribunal noted that, according to a Report in 2004 prepared by Indian women activists, in other parts of India honour killings continue to occur.[10] I note in particular that this report cited by the Tribunal does not limit its concerns, or its recommendations for the greater protection of women, primarily to the Punjab region of India.
[10] RRTA at [68].
Further reports cited by the Tribunal not only highlight the appalling violence against women, but also the relevance of deaths that relate, as is contended in the current matter, directly to dowry harassment cases.
A more recent report cited by the Tribunal came from the UK Home Office Operational Guidance Note on India in April 2008, one part of which related to women who fear domestic violence in India.[11] It is sufficient to note the alarming statistics produced in that Report and the risks faced by women in India as so recorded. And again I note that the Report as cited does not limit its concerns and risk exclusively or even largely to the Punjab region of India.
[11] See RRTA [71].
Later in the Tribunal’s reasons, there is a specific reference to and detailed discussion of ‘state protection in the Punjab.’[12] Two things may be observed.
[12] See RRTA at [76] – [79].
First, although the information provided in this part of the Tribunal’s reasons is, as I have indicated, stated to be in the context of ‘state protection in the Punjab’, some of the information is clearly applicable to all of India. For example, in the 2007 US State Department Report (previously cited) on human rights practices in India – which are not limited to any particular area - refer to “Rape and violent attack against women continued to be a serious problem.” Further, the Report stated: “According to NCRB, two rapes took place every hour nationwide, and 19 of 20 victims knew their attackers. NGOs asserted that rape by police, including custodial rape, was common.”
The Tribunal noted further, this time from the UK Home Office note, also previously cited, the following.[13] In the context of various legislation designed to protect women, not least in the context of dowry claims, the report said that “the government often was unable to enforce these laws, especially in rural areas where traditions were deeply rooted.”
[13] See RRTA at [77].
Then, in the context of the Indian Protection of Women From Domestic Violence Act, which was passed in October 2006, the same UK report said: “The new law bans harassment by way of dowry demands and empowers magistrates to issue protection orders where needed.” Pointedly, however, the report noted: “As of November the Act had been ratified by four of 28 state governments.” It might be inferred from the very small number of states that have ratified the legislation that the capacity to enforce it is somewhat limited. Moreover, as the same reported noted later, still at [77] of the Tribunal’s decision:
Those experiencing domestic violence at the hands of their husbands or other family members can therefore reasonably seek protection from the Indian authorities. However, the provision of this assistance may be inadequate to ensure that every individual woman who needs assistance and protection is able to access it. Additionally, some women’s ability to access this help and assistance may be limited by such factors as their location, lack of literacy and lack of awareness of their rights in what remains a patriarchal society.
The second thing to note about the country information is the complete absence in the Tribunals’ reasons of any specific consideration of the sufficiency of protection of women in other parts of India who are in circumstances similar to those in which the Applicant finds herself, other than in passing in the course of the discussion of ‘state protection in the Punjab.’
Although discussed in more detail later in these reasons, it is not inapt to observe here that it is a singular and significant gap in the Tribunal’s consideration of the Applicant’s matter, where it ultimately recommended that it was reasonable for her to relocate elsewhere in India, but not to address specifically the ‘state protection elsewhere in India’ as it had done in relation to the Punjab.
The gaps in the Tribunal’s decision, as well as its failure to consider (or to do so properly) either or both (a) the country information, and (b) the actual circumstances of the Applicant in the light of it, respectfully, seems to me, to be very similar to the grounds upon which Hayne J found jurisdictional error in Plaintiff M13/2011.[14]
[14] See Plaintiff M13/2011 at [19] – [21], [22], and [28]. His Honour’s comments, at [30], would also follow.
Moreover, even on the information before the Tribunal in relation to the Punjab, it is questionable whether the country information concerning that region was properly considered having regard to the matters noted above.
C. The Tribunal’s Decision
Having outlined earlier in its reasons the definition of “refugee”, at [9] – [18], the first part of the Tribunal’s decision, at [80] – [89], traverses the various elements under the Act and the Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967) (“the Convention”) that prescribe who is a “refugee” in the light of relevant High Court jurisprudence.
These early parts of the Tribunal’s decision are confined to those areas which dealt with whether the Applicant satisfied the Convention requirement, in Article 1A(2), of being a ‘member of a particular social group’ because she was an Indian woman who was separated or divorced, and because she ‘has suffered domestic and sexual violence and against whom her husband’s family has made a claim in the nature of a dowry claim.’
The Tribunal’s point of reference for this discussion was the joint judgment of Gleeson CJ, Gummow and Kirby JJ in Applicant S v Minister for Immigration and Multicultural Affairs.[15]
[15] (2004) 217 CLR 387 at [36].
By further reference to McHugh J’s judgment in Applicant S, at [64], the Tribunal concluded, at [87]:
The applicant’s representative has submitted that the applicant is a member of a particular social group for reason that she is “an Indian woman who has suffered domestic and sexual violence and against whom her husband’s family has made a claim in the nature of a dowry claim”. The Tribunal does not accept this submission for reason that the purported particular social group is not an identifiable group of people set apart from other members of society and united by a common characteristic or other quality (“Applicant S” per McHugh, J).
After further discussion, at [88], this time of the High Court’s decision in Minister for Immigration and Multicultural Affairs v Khawar,[16] and the joint judgment of McHugh and Gummow JJ, at [28], in particular, the Tribunal said, at [89]:
The particular social group posited by the applicant appears not to reflect the operation of cultural, social religious and legal factors so much as to be a description of the applicant’s particular individual circumstances. The Tribunal finds that the particular social group posited by the applicant by virtue of her identity as “an Indian woman who has suffered from domestic and sexual violence and against whom her husband’s family has made a claim in the nature of a dowry claim” is not an identifiable group having regard to the relevance of legal, social, cultural and religious factors in the consideration of this issue.
[16] Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1.
The Tribunal then said, at [90] (internal citations omitted):
However, the Tribunal is obliged to consider not only the claims that the applicant has expressly made but also the claims that arise implicitly from the material before the Tribunal… It is apparent from the independent country information before the Tribunal that Indian women are differentially treated on the basis of their gender. It is also apparent from that information that Indian women who are separated or divorced can be seen to constitute a particular social group. The Tribunal accepts that Indian women and separated or divorced Indian woman constitute particular social groups within the meaning of the Convention and that the applicant is a member of these groups. The Tribunal has also considered the applicant’s explicit claims in respect to her membership of a particular social group of Indian women who are the subject of dowry related claims. On the basis of the material before it, and separately from any consideration of the applicant’s individual experiences of domestic and sexual violence, the Tribunal finds that Indian women whose husband’s families have made claims in the nature of dowry claims constitute a particular social group in India, and that the applicant is a member of this group.
Having accepted that the Applicant is a member of a particular social group of Indian women, the Tribunal then considered her claims in relation to her being having been subject to “physical, sexual and psychological violence” by her estranged husband. In this regard, the Tribunal said, at [92] and [93]:
[92] The applicant has provided detailed evidence that she has been subject to physical, sexual and psychological violence by her estranged husband. That evidence is supported by the evidence of [Ms A] The applicant has given evidence that she left her husband after he arranged the theft of money from her bank account [in] January 2009, and that she has had no contact with him since that time. The Tribunal accepts the applicant’s evidence in respect to these matters.
[93] The Tribunal accepts the applicant’s claim that she has been the victim of domestic and sexual violence in Australia at the hands of her husband, and that she has separated from her husband and made a complaint to the police in Australia. The Tribunal further accepts that the applicant’s husband’s family members have made threats against the applicant’s life, and that these threats have been made in the context of financial claims against her in the nature of a dowry claim associated with her failure to contribute financially to her husband’s education in Australia. The Tribunal accepts that the harm which the applicant fears from her estranged husband and his family amounts to serious harm within the meaning of the Convention.
The Tribunal further accepted the following risks faced by the Applicant. It said, at [93] and [94]:
[93] The Tribunal accepts the applicant’s claim that she has been the victim of domestic and sexual violence in Australia at the hands of her husband, and that she has separated from her husband and made a complaint to the police in Australia. The Tribunal further accepts that the applicant’s husband’s family members have made threats against the applicant’s life, and that these threats have been made in the context of financial claims against her in the nature of a dowry claim associated with her failure to contribute financially to her husband’s education in Australia. The Tribunal accepts that the harm which the applicant fears from her estranged husband and his family amounts to serious harm within the meaning of the Convention.
[94] Given the Tribunal’s findings above, it accepts that the applicant has been subjected to serious harm from her husband, and that she faces a real chance of suffering serious harm at the hands of her husband or his family members if she returns to her home town in the Punjab. The Tribunal finds on the evidence before it that the violence that the applicant fears should she return to India arises for the reason that she has defied her husband’s family by separating from her husband, in an act that may be considered unacceptable in Indian tradition. However the Tribunal finds that a Convention ground (being the applicant’s membership of a particular social group of Indian women or separated or divorced Indian women or Indian women whose husband’s families have made claims in the nature of dowry claims, or any other Convention ground) is not the essential and significant reason for the harm which the applicant fears. Rather the harm that she fears is from non-State actors, being her husband and his family, because of her actions in separating from her abusive husband, and failing to finance his education.
Having identified the reason for the Convention-related risk, the Tribunal then said, at [95], that “it appears from the evidence, that she will not be afforded protection by the Indian authorities from harm at the hands of her husband’s family for the essential and significant reason of her membership of particular social groups including ‘Indian women’.”
The Tribunal then considered, at a little length (at [96] – [99]), the vicissitudes of state protection in the Applicant’s Punjab region of India. It concluded, at [99]:
On the evidence before it the Tribunal finds that the applicant would not be afforded effective protection from the harm that she fears by the Indian authorities in the Punjab. The Tribunal further finds that this lack of state protection amounts to a selective and discriminatory withholding of state protection for a Convention reason from serious harm that is not Convention related. The Tribunal finds accordingly, and with reference to Khawar, that the applicant comes within the scope of the Convention.
Having so found, the Tribunal moved, by reference to the High Court decisions in SZATV v MIAC and SZFDV v MIAC,[17] to a consideration of whether it would be reasonable for the Applicant to relocate to another part of India, “to another region of the country away from the Punjab where, objectively, there is no appreciable risk of the persecution which the applicant fears at the hands of her husband and his family.”
[17] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18, and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51.
It noted, at [101], the Applicant’s reasons as to why it would not be reasonable for her to do so, which included her lack of financial resources and her lack of any close family ties. Significantly, the Tribunal noted the Applicant’s further concern about the difficulties that faced single women living away from their families in India. The Tribunal confirmed, at [102], that it had taken into account “the applicant’s background and her evidence and relevant country information related to the relocation of women in India.”
Again the Tribunal considered, at [103] – [106], various aspects of the country information available to it, some of which has already been noted earlier in these reasons. Among other things, from the UK Home Office ‘fact finding mission’ of India in 2004 it was found that “internal relocation is not easy for women all over India.” The same material said (quoted by the Tribunal at [103]):
… it would be very difficult for single unmarried women living outside of a hostel because it would be very difficult to rent due to the expense and landlords do not let apartments to women. The situation is changing but the general view is that women should be married and not working, or staying as a paying guest with a family.
And in the same place of the Tribunal’s reasons, and from the same UK source, the Tribunal quoted the following:
According to Dr Mohini Giri at the Guild of Service it would be very difficult for a single woman to relocate as society goes by natural law with everything in pairs and it would be even harder with children. ...She suggested that even the more educated would find it hard so by comparison it may be easier for a single woman to relocate. A single woman wanting to rent an apartment would be viewed with hesitation so she would have to stay in a hostel without her children.
Kamal Singh at the British Council stated that mobility is an issue and that the situation was very grim with safe housing being hard to find even for those in the higher income bracket. Women from both high and low income brackets moving on their own in search of a safe home, are viewed with suspicion.
...According to representatives from the AP Women’s Network and Oxfam it is not possible for women to live on their own because society clings on to age old customs. They stated that it would also be a major problem for women to relocate, including middle class women.
At [104] of its reasons, the Tribunal noted the views of two experts in relation to the possibility of relocation in the Punjab. It is unnecessary to record that material. At [105] and [106], the Tribunal referred to later material from the UK Home Office and from DFAT, the latter’s primary focus again being on relocation in the Punjab region. The material from the UK Home Office in 2008 stated:
The situation as regards internal relocation for single women, divorcees with or without children, and widows may differ from the situation for men as it may be difficult for women on their own to find secure accommodation.
… For some women in India relocation will not be unduly harsh but this is only likely to be the case where the individual is single, without children to support and is educated enough to be able to support herself. Some single women may also be able to relocate to live with extended family or friends in other parts of the country. However, where these circumstances do not apply internal relocation is likely to be unduly harsh.
The last part of the Tribunal’s decision was concerned with the question of internal relocation in the light of the Full Court of the Federal Court’s decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs.[18]
[18] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
Two things should immediately be noted. First, at the time of the Tribunal’s decision, it did not have the benefit of Hayne J’s judgment in Plaintiff M13/2011.
Secondly, accepting the importance of the Full Court’s judgment in Randhawa, that decision must be considered in the light of the two High Court decisions, earlier cited by the Tribunal at [100], of SZATV and SZFDV. Curiously, in this part of the Tribunal’s decisions, at [107] – [119], there is not even a citation of those judgments let alone a consideration of them. Indeed, after being referred to Randhawa in the course of the hearing in Plaintiff M13/2011, Hayne J pointedly said: “To which should be added what we [the High Court] have said about the subject. I know Randhawa is seen as the relevant authority, but we did actually think about it in those two cases [SZATV and SZFDV].”[19] As I have said, there was no such consideration by the Tribunal of the High Court’s recent deliberations on Randhawa. Respectfully, this should have occurred. To have done so would, in my view, have assisted the Tribunal significantly.
[19] See [2011] HCATrans 176 (16 June 2011) p.10.
The issue the Tribunal posed for itself to consider, at [107], was: “The Tribunal has considered whether, in all of the circumstances the applicant is reasonably able to relocate within India to a region where, objectively, there is no appreciable risk of the occurrence of the persecution.”
The Tribunal noted Black CJ’s comment from Randhawa (at p.442):
... a person’s fear of persecution in relation to that country [of nationality] will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.
Beaumont J, at p.451, took a similar view to that expressed by Black CJ.
The Tribunal also noted Black CJ’s comment, at p.443, to the effect that, if it is not reasonable for a person who has a well founded fear in part of a country to relocate to another part, then the person’s fear of persecution in relation to the country as a whole is well founded.
Properly, the Tribunal stated, at [111], that what is reasonable will depend on the circumstances of the individual in each case. In the circumstances of the current Applicant, the Tribunal found that she could reasonably relocate to another part of India and live safely.
In Plaintiff M13/2011 at [19] (emphasis in original), Hayne J noted that the delegate in that case failed to identify a place “to which the plaintiff could relocate … beyond the delegate saying that such a place would need to be “in a larger community, such as Kuala Lumpur.” The same flaw identified in Plaintiff M13/2011 by Hayne J was repeated here: the Tribunal did not identify any particular locality or place in India to which the Applicant could, in its view, move and live with the safety to which it had earlier referred. It merely or only stated that it could be any locality other than her original area in which she lived, namely the Punjab. It did so in the face of country information that cogently highlighted a range of significant risks for single women throughout India. Such matters are considered in more detail later in these reasons.
The Tribunal also noted, at [113] and [115]:
[113] …Tribunal gives significant weight to the applicant’s circumstances in India in the recent past during which she was able to secure consecutive periods of employment in three different hospitals, leaving each employer with excellent references, as well as to the fact that she has been employed in Australia. These factors indicate that applicant has not had difficulty in finding employment in different locations in India in the past. The Tribunal also gives significant weight to the fact that the applicant has lived away from her family home at the hospitals where she worked for a number of years before her marriage when she was a single woman, and also subsequent to her marriage in 2008.
[115] … the Tribunal is satisfied that the applicant has the skills and experience to be able to be economically viable in another area of India such as Mumbai or Delhi or another large city of India, where attitudes are generally more liberal, and to relocate successfully.
Finally, the Tribunal found, at [117] and [118]:
[117] The applicant does not have any children, and she has been working in Australia. Although she may not have significant financial resources, the Tribunal considers that the applicant will have saved some money while working in Australia, and has the qualifications and experience to enable her to readily find employment, and associated accommodation, as she has in the past as a nursing professional in India.
[118] As the Tribunal has found that the harm feared by the applicant is from non-State actors, being her husband and his family, the Tribunal finds that such difficulties are confined to the area where she previously lived and she can avoid those difficulties by living elsewhere. … Tribunal therefore finds that it would be reasonable for the applicant to relocate to a region in India away from her home town and village. Accordingly the Tribunal finds that the applicant would be able to safely relocate to one of these areas upon her return to India and that it would be reasonable for her to do so in the circumstances.
The Tribunal affirmed the decision of the delegate not to grant a Protection (Class XA) Visa to the Applicant.
D. The Extension of Time Application
Earlier in these reasons, at [5] – [10], I outlined the procedural history that included the application to extend time for the filing of the substantive application. The factual background relevant to that application may be shortly stated.
The Application for an extension of time was sought in the original application that was filed on 11th November 2010. The extension was sought because, so the Applicant’s current lawyer confirmed, the Applicant’s former solicitor (in Perth) had not advised her of “the statutory limitation periods in which to make an Application to the Federal Magistrates Court.”
Section 477(1) of the Act prescribes the time-frame within which applications to this Court must be made, namely within 35 days of the actual (as opposed to the deemed) notification of the decision. Section 477(2) of the Act allows the Court to grant an extension of time as specified in that section.
The Applicant filed her Application for judicial review 251 days after the Tribunal’s decision was made. Accordingly, and as agreed by the Applicant, she is 216 days (or a little more than 7 months) ‘out of time’.
Between the time of the Tribunal’s decision and the filing of the Application, the Applicant sought from the Minister the exercise of discretion pursuant to s.417 of the Act whereby the Minister may substitute a more favourable decision to that which was given by the Tribunal. A copy of the letter, on behalf of the Minister, addressed to the Applicant, and copied to her legal adviser, informing that the Minister had declined to exercise his discretion, is annexure A to Mr Davey’s affidavit, filed on 11th November 2010. That correspondence is dated 29th October 2010.
Accordingly, the current Application to this Court was made 13 days after notice of the Minister’s refusal to exercise his discretion under s.417 of the Act.
The Applicant filed an affidavit on 14th February 2011 in which she confirmed that she had not been advised of her rights in relation to judicial review and the time limits within which such action must occur. She also affirmed that, when speaking with her former legal adviser in Perth (Mr McKenna), he confirmed that there were two avenues of appeal: (a) an application to the Minister, and (b) an application to the Court.
The Applicant also said that, contrary to her instructions, Mr McKenna pursued [only] the application to the Minister. She said that she had instructed him to lodge an appeal with the Court. This had not been done.
The Minister secured an affidavit from Mr McKenna, who works for the Legal Aid Commission of Western Australia. That affidavit was filed on 3rd May 2011.
Among other things, Mr McKenna confirmed that (a) on 5th March 2010, he sent the Applicant a copy of the Tribunal’s decision; and (b) on 16th March 2010, he met with the Applicant (and an interpreter). A copy of his file note of that attendance is attached to his affidavit.
Mr McKenna said in his affidavit (par.18) that he later formed the view that the Applicant’s prospects of success in appealing [via judicial review] the Tribunal’s decision were rather less than he had earlier advised the Applicant. He said that he informed the Applicant of this later advice but cannot recall, nor is there any note on his file, when that advice was given.
Mr McKenna also records in his affidavit (par.20) that there is a record on his file that on 26th March 2010 he received a telephone call from “Olga” from the Australian Asian Association. While there is an email exchange, which is attached to the affidavit, the only thing he can recall of the conversation with Olga is that the Applicant had been to see her and that she was “upset and confused about the RRT decision.”
Mr McKenna sent the application under s.417 to the Minister on 1st April 2010 on behalf of the Applicant. As previously noted, the Minister’s advice, rejecting the application, was notified on 29th October 2010.
The final matters to note from Mr McKenna’s affidavit are: (a) he does not remember when and in what circumstances he received instructions in relation to the s.417 application; (b) “… I must accept that I don’t know if I had the requisite instructions to make an application to the Minister rather than an application to the Federal Magistrates Court,” and (c) he saw the Applicant several times after 1st April 2010 and at no time did the Applicant inform him that she was upset or distressed because he had made an application for Ministerial intervention on her behalf.
The Applicant submitted that (a) in the circumstances outlined above, (b) given the wide discretion that reposes in the Court, (c) the factors relevant to the granting of an extension of time, including the reasonableness of the explanation for the delay (viz the misunderstanding and or misinterpretation by the Applicant of (i) the Tribunal’s decision, (ii) the options for redress or challenge (appeal to the Court or to the Minister), (iii) the comprehension by both the Applicant and Mr McKenna of the relevant instructions in the light of (i) and (ii), and (d) the materiality of the argument(s) in the substantive appeal to this Court, an extension of time should be granted.
The Applicant further submitted that not to grant an extension of time would be analogous to summary judgment against the Applicant, and in the light of the High Court’s instruction in Spencer v The Commonwealth,[20] which it might fairly (if very summarily) be said cautions against a too ready dismissal of proceedings, such a course should not be undertaken.
[20] Spencer v The Commonwealth (2010) 241 CLR 118.
The Minister submitted that an extension of time was “not necessary in the interests of justice in the circumstances of this case.”
The Minister noted, among other things, that there was correspondence between the Applicant’s representative and the Department in April and again in June 2010. In a letter, dated 17th June 2010, the Applicant’s [then] legal adviser said, among other things, that the Applicant accepted that the Tribunal’s decision did not involve ‘jurisdictional error’ and she has not challenged the decision “upon judicial review.”
In relation to relevant principle, both the Minister and the Applicant relied upon decisions of this Court in SZNOR v Minister for Immigration and Anor [2009] FMCA 639, and SZJTW v Minister for Immigration and Anor [2009] FMCA 508.[21]
[21] See also the Full Court of the Federal Court’s decision in Vu v Minister for Immigration and Citizenship [2008] FCAFC 59.
The Minister further submitted that (a) the delay of ‘nearly eight months is not inconsiderable’; (b) the Applicant’s explanation for delay is (in my words) either unsatisfactory and or unreasonable; (c) quite properly, the Minister confirmed that there was no prejudice, at least not to the Minister, by the late application; (d) no arguable case was presented by the Applicant.
In my view, in relation to the extension of time application, there is sufficient discordance between the evidence (admittedly untested) of the Applicant and Mr McKenna as to make it reasonable, and the interests of justice are also meet, that the extension of time be granted. Given the inherent likelihood that the Applicant would not have understood, or comprehended sufficiently, the avenues of redress open to her following the Tribunal’s decision, and even with the assistance of her [then] legal adviser and an interpreter, the Court cannot be completely satisfied that the Applicant sufficiently understood the options, and the time limitations statutorily imposed, that she should be shut out of the availability of judicial review in this Court.
Further, in my view, the Applicant has demonstrated that she has a more than arguable case. She should have the opportunity to have it determined by the Court.
And again because of the dissonance between the evidence of the Applicant and Mr McKenna, and in particular the lack of comprehension of the options available to her, the explanation of the delay in lodging the Application is, in my view, not unreasonable in all the circumstances.
I note in relation to the extension of time application in general the comments and decision of Gummow J in Ahmed v Minister for Immigration and Citizenship.[22] In that case an extension of time application was sought under s.486A. Like here, there as no cross-examination of the evidence before his Honour. In the case before the High Court, the delay between the decision of the Tribunal and instituting proceedings in this Court was approximately nine (9) months. Gummow J granted the extension of time, as I do in the matter before me. His Honour also ordered the Minister to pay the costs of the application brought before him, as I do also in relation to the instant application.
[22] Ahmed v Minister for Immigration and Citizenship [2011] HCATrans 35. Curiously, this decision is available only in the Transcript record of the High Court. It was brought to the attention of both parties in the current proceedings.
E. The Substantive Application
The formal orders sought by the Applicant are: (a) to grant a Protection (Class XA) Visa; (b) to set aside the Tribunal’s decision of 4th March 2010; and (c) costs.
The grounds of the Application are as follows (with only slight emendation/correction as they appeared in the Application):
1. The Tribunal fell into jurisdictional error by reaching a conclusion that the Applicant could relocate to other locations in India:
Particulars
· Paragraph 106 of the Tribunal’s decision. The Tribunal has not taken into consideration the nature and the effect of sexual assault and domestic violence on the Applicant’s capacity to work and function.
· The Applicant does not appear to have been assessed as to the effects of the domestic violence and threats she has sustained and this is a relevant circumstance to have been taken into consideration, to which the Tribunal should have had regard.
· In accordance with the dicta of Beaumont J in Randhawa v MILGEA (1994) 52 FCR 437, relocation in the Applicant’s circumstances is not reasonable in circumstances where the Applicant’s family continues to be threatened and the Applicant herself has experienced trauma.
2. The findings of the Tribunal are not supported by the evidence.
3. The Applicant was not provided [with] procedural fairness in being given notice and an opportunity to respond to the adverse finding that the Tribunal was contemplating in making its findings that the Applicant could re-locate to other parts of India. In doing so, the Tribunal fell into jurisdictional error.
Applicant’s Submissions: In support of the orders sought, the Applicant submitted that, although the Tribunal found that she met all of the relevant criteria under the under the Convention, the Tribunal erred in finding that it was reasonable for the Applicant to relocate to anther part of India.[23] For example, in suggesting that she could relocate to either Mumbai or Delhi, at [115] of its reasons, the Tribunal failed to take into account that the Applicant had never lived in, nor visited, those cities. She further submitted that the Tribunal had erred (a) in failing to consider “the cultural and sectarian violence which is escalating against the Applicant’s ethnic groups” as well as (b) failing to consider the relative costs of living in those cities and the comparative small wages that a person of the Applicant’s qualifications could obtain in such cities.”
[23] The following matters are taken from the Applicant’s written submissions, filed 11th January 2011, pars 37 ff.
The Applicant further submitted that the conclusion of the Tribunal that she has a reasonable opportunity for employment “is an irrelevancy against the backdrop of “serious harm” having been occasioned and threatened against the Applicant.” The submission continued, at par.43: “Income earning capacity provides no protection to women in India or Australia from men who perpetuate [sic] domestic violence against their partners. The significant weight placed by the Tribunal on the Applicant’s potential earning capacity lead [sic] the Tribunal into jurisdictional error by taking into consideration a matter irrelevant to lack of protection that the Tribunal had also found would be afforded the Applicant.”[24]
[24] The submission also contended that the actual finding was “perverse”, which I take to be akin to the more usual juridical category of “illogical and irrational” as those terms have been recently detailed by Crennan & Bell JJ in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at pp.393 – 396 [121] – [131].
The Applicant contended that the Tribunal failed to take into account (and I infer, the further, alternative contention that the Applicant considers that the Tribunal failed to take account properly) the cultural and organised nature of dowry violence in India, thus falling here also into jurisdictional error. The failure to take such a matter into account, or properly to do so, said the Applicant, was a failure to take into account a relevant consideration. The Applicant submitted, at par.45, that there is “no evidence that dowry assaults and killings are geographically limited.”
In sum, the Applicant submitted that it was not reasonable for the Tribunal to have concluded that the Applicant should re-locate to another part of India.
Following the delivery of Hayne J’s judgment in Plaintiff M13/2001, further written submissions were provided by both parties.
Apart from an extended excerpt from M. Crock & L. Berg, Immigration, Refugees and Forced Migration: Law, Policy and Practice in Australia, (Sydney: The Federation Press, 2011), the further written submissions, which were filed on 21st July 2011, focussed on two matters.
The first matter was that the Tribunal’s findings, at [117] of its reasons, which concerned the Applicant having saved money while working in Australia, proceeded on a false assumption. The reasons had earlier stated or noted that the Applicant had in fact been robbed of her savings by her husband.
In a similar vein concerning ‘wrong assumptions’, the Applicant submitted that the Tribunal assumed, and wrongly so, that the Applicant would be able to gain employment in India “with ease.” The Applicant submitted that these assumptions about her employability (a) was not supported by any relevant country information, and (b) was contrary to the information provided by the Applicant to the Tribunal, which indicated (it was submitted) that the Applicant’s only area of work – nursing – was highly competitive and for which there was a scarce job market.
The second area of focus in the further written submissions on behalf of the Applicant related directly to the conclusion of Hayne J in Plaintiff M13/2011. The Applicant contended that, apart from noting, at [115] of its reasons, Mumbai and Delhi as possible alternative localities to which the Applicant might relocate, there was no relevant consideration of any destination that would provide the requisite safety or refuge for the Applicant. The Applicant contended: “The delegate in the present case focused on the employability of the Applicant and not the totality of her circumstances.” The “suggestion” of Mumbai or Delhi was, it was submitted, “arbitrary and therefore unreasonable leading to jurisdictional error.”
The Applicant submitted that the reasoning and the conclusion of Hayne J in Plaintiff M13/2011 was directly relevant to the current matter and should be applied. Further, the failure to identify the particular circumstances of the Applicant to determine whether it was practical for her to relocate constituted jurisdictional error.
The Respondent’s Submissions: Leaving to one side issues in relation to “particulars” and or the alleged lack of them provided by the Applicant, the submissions on behalf of the Minister were as follows.
First, the Minister submitted that the review sought by the Applicant was nothing other than merits review, not least in relation to certain relevant findings of fact. Such a course by this Court is impermissible.[25]
[25] See, for example, the recent discussion in Minister for Immigration and Citizenship v SZJSS (2011) 85 ALJR 306 at [23].
Secondly, in a number of respects where it was submitted that the Tribunal had not, or had not properly, considered relevant matters, such as in relation to the Applicant’s situation in India, both presently and in the foreseeable future, the Minister pointed to the Tribunal stating, for example at [112], that it had considered such matters “carefully.”
Thirdly, for example in relation to a particular finding, such as the conclusion that the Applicant could relocate to another part of India and live there safely, the Minister submitted that such a finding was open to the Tribunal.[26] And as such, it is not open to this Court to review such matters, particularly where the issue is essentially one of the appropriate “weight” to be given any particular piece of evidence.
[26] See the Respondent’s Submissions, filed 10th January 2011, pars.34 & 38.
In the light of the decision in Plaintiff M13/2011, the Minister submitted that the High Court decision was of no relevance to the matter before this Court. By reference to Black CJ’s comments in Randhawa (at p.443), the Minister submitted that in Plaintiff M13/2011 had taken “the general approach that there must be a safe haven somewhere without giving the issue more specific attention.” The submissions further stated: “As Black CJ stated, that approach would “ordinarily be quite wrong.” By contrast, the Tribunal in the present case “carefully considered” the applicant’s personal situation in India, both at the time of its decision and in the foreseeable future (at [112]). It accepted that the applicant faced a real chance of suffering serious harm at the hands of her husband or members of his family if she returned to her home town in a rural area of the Punjab (at [94]), but that those difficulties were confined to that area and could be avoided if she lived elsewhere.”[27]
[27] See Respondent’s Further Submissions, filed 20th July 2011, at par.5.
F. Discussion & Resolution
In my view, the following cases, and the principles taken from them, are determinative of this appeal.
There is no dispute that a court may not engage in merits review, but only may intervene (so to speak) in proceedings where it is established that there is jurisdictional error. For example, in Minister for Immigration and Citizenship v SZJSS, the High Court said, at [23] (internal citations omitted):[28]
[23] General principles governing the limited role of the courts in reviewing administrative error have long been identified. As Mason J observed in Minister for Aboriginal Affairs v Peko-Wallsend Ltd, "mere preference for a different result, when the question is one on which reasonable minds may come to different conclusions” is not a sufficient reason for overturning a judicial decision upon a review. Further, Brennan J said in Attorney-General (NSW) v Quin
“The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."
[28] Minister for Immigration and Citizenship v SZJSS & ors (2010) 243 CLR 164.
In SZJSS, the High Court further observed, at [34] and [36] (internal citations omitted; emphasis added):
[34] It has been recognised that to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with it.
[36] The conclusion that the Tribunal erred in giving "no weight" to the letters, with the implication that it should have given different, presumably determinative, weight to them, depended on the Federal Court reviewing the factual findings of the Tribunal rather than the process by which it arrived at its conclusions.
In the joint judgment of Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs, at [73] and [78], their Honours said (internal citations omitted; emphasis in original text):[29]
[73] The objective element [of the Convention definition of “refugee”] requires the decision-maker to decide what may happen if the applicant returns to the country of nationality. That is an inquiry which requires close consideration of the situation of the particular applicant.
[78] The central question in any particular case is whether there is a well-founded fear of persecution. That requires examination of how this applicant may be treated if he or she returns to the country of nationality. Processes of classification may obscure the essentially individual and fact-specific inquiry which must be made.
[29] Appellant S395/2002 v Minister for Immigration & Multicultural Affairs (2003) 216 CLR 473.
I simply emphasise their Honours’ comments about the requirement for “close consideration of the situation of the particular applicant”, and later, the importance their Honours placed on “the essentially individual and fact-specific inquiry which must be made.”
And in Minister for Immigration and Multicultural Affairs v Respondents S152/2003,[30] McHugh J noted, at [75], the important point that the Convention “does not refer to persecutors. It refers to persecution, not persecutors.” I record his Honour’s comment because, among other things, in the present case the Tribunal seems to have focussed – to a degree understandably – on the Applicant’s husband and his family. However, in doing so, there was little or no consideration of the capacity of those protagonists to continue or to orchestrate persecution of the Applicant in other parts of India. Put another way, the “close consideration” of the circumstances of this particular Applicant stipulated by Gummow and Hayne JJ in Applicant S395/2002 did not occur. This failure to consider, or to consider properly, the actual circumstances of the Applicant included the capacity of the Applicant’s husband and family to continue the persecution of her elsewhere in India.
[30] Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1.
In SZATV v Minister for Immigration and Citizenship, the plurality judgment of Gummow, Hayne and Crennan JJ (Kirby J and Callinan J agreeing in separate judgments), at [9] – [18] reviewed High Court authorities in relation to ‘the relocation principle.’[31] Then their Honours said, at [19]
…it will be seen that the matter of "relocation" finds its place in the Convention definition by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department.[32] His Lordship said:[33]
"The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason."
[31] SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18.
[32] [2006] 2 AC 426.
[33] [2006] 2 AC 426 at 440.
The plurality judgment continued, at [20] – [21] (internal citations omitted):
[20] The reference in the passage to the unavailability of the protection of the country of nationality of the refugee is best understood as referring not to the phrase "the protection of that country" in the second limb of the definition, but to the broader sense of the term identified in Respondents S152/2003. This was the international responsibility of the country of nationality to safeguard the fundamental rights and freedom of its nationals.
[21] Lord Bingham went on in Januzi to refer to the statement in the UNHCR Handbook, at [91]:
"The fear of being persecuted need not always extend to the whole territory of the refugee's country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so."
[22] His Lordship, significantly both for Januzi and the present appeal to this Court, added:
"The corollary of this proposition, as is accepted, is that a person will be excluded from refugee status if under all the circumstances it would be reasonable to expect him to seek refuge in another part of the same country."
The final judgment to consider is that of Hayne J in Plaintiff M13/2011, to which I have already referred. It is sufficient to note the following from his Honour’s reasons.
First, at [19], in relation to the delegate’s decision his Honour observed (emphasis in original text):
And a place to which the plaintiff could relocate was not identified in the delegate's reasons, beyond the delegate saying that such a place would need to be "in a larger community, such as Kuala Lumpur".
At [21] of that judgment, Hayne J said (internal citations omitted):
Consideration may be given to the possibility of a claimant for protection relocating in the country of origin if relocation is a reasonable (in the sense of practicable) response to the fear of persecution. As three members of this Court pointed out in SZATV v Minister for Immigration and Citizenship, "[w]hat 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".
His Honour stated further, at [22] (emphasis added):
When the delegate's reasons are read as a whole, it is evident that the particular circumstances of the plaintiff were not considered by the delegate in forming the opinion that she could relocate to avoid the risk of persecution. So much follows from the delegate not knowing from where the plaintiff would have to relocate. The particular circumstances of the plaintiff not having been considered, the delegate did not correctly identify a question that had to be answered in determining whether there was a real risk of the plaintiff suffering persecution on account of her religious beliefs if she were to return to Malaysia. By not correctly identifying the relevant question, the delegate made a jurisdictional error.
In my view, having regard to the principles just articulated, the following matters are clear from the Tribunal’s decision, each of which constitutes jurisdictional error.
First, just as the delegate in Plaintiff M13/2011 failed to identify and assess the particular circumstances of the Plaintiff in forming the opinion to relocate, so too here: in my view the Tribunal did not address, or address properly, the particular circumstances of the Applicant in determining whether it was reasonable for her to relocate to another location in India, away from the Punjab region. Indeed, apart from what was only, or merely, a passing reference to Mumbai and Delhi, the Tribunal’s decision was utterly lacking in any relevant consideration of any locality in India to which the Applicant, it said, could relocate. Put another way, it was insufficient for the Tribunal to consider, essentially in a geographical vacuum, whether it was reasonable for the Applicant to relocate to another part of India. To have done so was, in effect, to cast the Applicant as a piece of human flotsam (or jetsam).
Further, while the Tribunal considered separately (and properly so) ‘state protection in the Punjab’, at [76] and following, it offered no such considered review of any other locality in India.
Respectfully, contrary to the submissions of the Minister, the comments of Hayne J in Plaintiff M13/2011 are, in my view, directly in point. They highlight the first jurisdictional error of the Tribunal in failing to identify with sufficient particularity the place to which the Applicant could reasonably relocate.
In failing to so identify a locality in India to which the Applicant could relocate, the Tribunal further failed to consider the particular circumstances of the Applicant. Indeed, such a failure made it impossible for the Tribunal to undertake the task required of it, as specified by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration & Multicultural Affairs. As such, this too constituted jurisdictional error.
A third jurisdictional error relates to the inconsistency (or even illogicality) in the Tribunal’s consideration of the country information. For example, earlier in these reasons I noted various parts of the country information as recorded by the Tribunal. Not insignificant parts of that information highlighted that there were safety and other risks to single women throughout India, and particularly those who are in circumstances similar to those in which the Applicant now finds herself. This is also to say that the risks for such women, while perhaps very significant in the Punjab region, were not confined to that area and were evident, indeed quite wide-spread across India.
Respectfully, in my view, it was at least inconsistent (if not illogical), on the one hand, to refer to various pieces of country information that confirm the risks to single women in circumstances similar to those of the Applicant, and yet on the other hand, to conclude that it is reasonable for the Applicant to relocate to another, but unspecified, region or locality in India. Such inconsistency or illogicality (and or failure to consider properly) also results, in my view, in the Tribunal’s decision being afflicted with jurisdictional error.
A final matter to note is that the Tribunal concluded (or assumed), at [117] of its reasons, that the Applicant “will have saved some money while working in Australia….” Yet earlier, the Tribunal had noted, at [38], that $2000 had been taken out of her account. So far as I can see, there was no other evidence before the Tribunal for it to make any assessment as to the financial position of the Applicant. Indeed, as seems to have been the case, simply to opine that the Applicant ‘will have saved some money’ is a significantly tenuous foundation to conclude (together with other factors admittedly) that the Applicant could relocate to another part of India. According to its published reasons, there was no assessment of this particular Applicant’s financial circumstances such as would entitled the Tribunal to come to the conclusion it did.
For the above reasons, in my view, it was not open to the Tribunal to conclude that it was reasonable for the Applicant to relocate to a region of India away from her home town and village.
Accordingly, the orders will be: (i) to allow the application for an extension of time; (ii) a writ of certiorari issue to remove into this Court, for the purpose of its being quashed, the decision of the Refugee Review Tribunal, dated 4th March 2010; (iii) a writ of mandamus issue to the Refugee Review Tribunal directing it to reconsider the matter and determine it according to law; (iv) in the absence of any opposing submissions within 14 days, the First Respondent to pay the Applicant’s costs in the sum of $6240.
I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 31 January 2012
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