DFZ16 v Minister for Immigration
[2017] FCCA 2427
•2 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| DFZ16 v MINISTER FOR IMMIGRATION & ANOR | [2017] FCCA 2427 |
| Catchwords: MIGRATION – Application for protection visa – review of Immigration Assessment Authority decision – whether the IAA erred in finding that cruel or inhuman treatment or punishment required an intention – whether the IAA erred in finding it reasonable that the applicant relocate to a part of Sri Lanka where he would not face a real risk of significant harm – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5, 36, 473CA Other materials cited: Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967), Article 1A(2) |
| Cases cited: AUP15 v Minister for Immigration & Border Protection [2017] FCA 192 SZTAL v Minister for Immigration & Border Protection [2017] HCA 34 |
| Applicant: | DFZ16 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | PEG 540 of 2016 |
| Judgment of: | Judge Smith |
| Hearing date: | 8 June 2017 |
| Date of Last Submission: | 8 June 2017 |
| Delivered at: | Sydney and Perth by video link |
| Delivered on: | 2 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Dr A McBeth |
| Solicitors for the Applicant: | AUM Legal |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY AND PERTH |
PEG 540 of 2016
| DFZ16 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
This is an application for judicial review of a decision of the Immigration Assessment Authority (IAA) made on 28 September 2016. The IAA affirmed a decision of a delegate of the Minister to refuse to grant the applicant a protection visa.
Background
The following summary of the relevant factual background is largely taken from the applicant’s written outline of submissions.
The applicant left Sri Lanka by boat in September 2012, arriving at Christmas Island on 2 October 2012.
On 14 February 2013, the applicant was granted a Temporary Humanitarian Stay (class UJ) (subclass 449) visa and a Bridging (class WE) (subclass 050) visa.
The applicant was subsequently charged with certain criminal offences and was detained in immigration detention in August 2014. On 14 November 2014, the applicant entered a plea of guilty to those charges and was convicted in the Magistrates’ Court of Victoria of indecent assault and an indecent act with a child under 16. The applicant was sentenced to a period of two months’ imprisonment suspended for 12 months. He was placed on the sex offenders’ register.
On 30 September 2015, the applicant applied for a Safe Haven Enterprise (XE) (subclass 790) visa (SHEV), a type of protection visa. On 24 May 2016, he withdrew that application and made a second application for a SHEV.
The applicant claimed to have a well-founded fear of persecution based on his actual or imputed political opinion as a supporter of the Tamil National Alliance. He feared violent reprisals from the supporters of the local leader of the rival party, the Tamil Makkal Viduthalai Party, referred to as “Mr S” by the IAA. The applicant claimed that he fled Sri Lanka in September 2012 to avoid “Mr S”, who was looking for the applicant at that time, following the provincial elections, and that he feared he would be tortured.
The applicant further claimed to fear persecution on the grounds of his Tamil ethnicity and his status as a returning failed asylum seeker. He claimed to fear significant harm if he returned to Sri Lanka as a person who departed Sri Lanka illegally.
The applicant lived in Saudi Arabia, Kuwait and Qatar for various periods before 2012. He returned to Sri Lanka from Qatar in February 2012 to be with his wife. The events relating to the provincial elections caused him to flee in September 2012.
On 3 August 2016, a delegate of the Minister made a decision to refuse to grant the applicant a SHEV. That decision was referred to the IAA for review pursuant to s.473CA of the Migration Act1958 (Cth) (Act).
In written submissions sent to the IAA on 18 August 2016, the applicant claimed, in addition to his previous claims, that he feared persecution and significant harm on return to Sri Lanka from the reaction of members of the Sri Lankan community to his criminal conviction in Australia.
The IAA invited the applicant to give new information about this claim at an interview which it conducted by telephone on 27 September 2016. At the interview, the IAA also asked the applicant about the possibility of relocation within Sri Lanka. It will be necessary to return in due course, to the information given to the IAA by the applicant in this respect.
On 28 September 2016, the IAA made a decision to affirm the decision of the delegate not to grant the applicant a protection visa.
IAA’s decision
The IAA did not accept the applicant’s claims to fear persecution based on his ethnicity, actual or imputed political opinion or status as a failed asylum seeker.
The IAA did accept that the applicant had departed Sri Lanka illegally and found that the applicant would likely be charged and fined under the Sri Lankan law, but that he would either be granted bail on personal surety or that of a family member. It found that he would not face any chance of imprisonment but it was likely that he would be fined although the imposition of the fine, surety or guarantee would not of itself constitute serious harm.
The IAA found on the basis of country information that the applicant may be detained for several days pending an opportunity to appear before a Magistrate. While it accepted that the conditions in Sri Lankan prisons were poor due to a lack of resources, overcrowding and poor sanitation, it found that any questioning and detention the applicant may experience would be brief, and would not constitute serious harm as defined in the Act.
Further, the IAA found that, while the prison conditions were poor, there was no intention to inflict pain or suffering or extreme humiliation. In those circumstances, it concluded that the poor prison conditions to which the applicant may be subject did not of themselves constitute significant harm as defined in ss.36(2A) and 5(1) of the Act.
The IAA also found that the provisions and penalties under the Sri Lankan law were of general application that applied to Sri Lankans equally and was not discriminatory in its terms or in the manner of its application.
The IAA accepted that the applicant faced a real risk of significant harm from the people in his own area as a consequence of his criminal conviction. However, it found:
a)first, that that fear of harm did not extend to all parts of Sri Lanka and so the applicant did not meet the definition of a refugee; and
b)secondly, for the purposes of s.36(2B) of the Act, that it was reasonable for the applicant to relocate to Colombo where he would not face a real risk of significant harm.
As a consequence of these findings, the IAA concluded that the applicant did not satisfy the criteria for the grant of a protection visa and so affirmed the decision of the delegate.
Consideration
The applicant pressed only the second and third grounds of the amended application.
Second Ground: The decision of the second respondent was affected by jurisdictional error in that it incorrectly applied s.36(2)(aa) of the Migration Act in finding that cruel or inhuman treatment or punishment required an intention on the part of the Sri Lankan authorities to cause harm to the applicant
In his written submissions, the applicant conceded that this ground was governed by the outcome of the appeal to the High Court from the decision of the Full Court of the Federal Court in SZTAL v Minister for Immigration & Border Protection (2016) 243 FCR 556; [2016] FCAFC 69.
At the time of the hearing of this matter, the High Court had heard argument in that appeal and had reserved its decision. The High Court handed down its decision on 6 September 2017, affirming the decision of the Full Court by majority: SZTAL v Minister for Immigration & Border Protection [2017] HCA 34. In those circumstances, on the applicant’s concession, this ground must be rejected.
Third ground: The decision of the second respondent was affected by jurisdictional error in that it failed to ask itself the correct question in respect of s.36(2B) of the Migration Act, namely whether it would be reasonable for the applicant to relocate to a part of Sri Lanka where he would not face a real risk of significant harm given his personal circumstances
In order for the applicant to be granted a protection visa, the Minister (and, on review, the IAA) had to be satisfied of one of two things:
i)that the applicant was a non-citizen in Australia in respect of whom Australia has protection obligations because the person is a refugee: sub-s.36(2)(a) of the Act (the “refugee criterion”); and/or
ii)that the applicant was a non-citizen in Australia in respect of whom Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of being removed from Australia to a receiving country, there is a real risk that he or she will suffer significant harm: sub-s.36(2)(aa) (the “complementary protection criterion”).
The emphasised part of the “complementary protection criterion” is qualified by s.36(2B) of the Act, which relevantly provides:
…
(2B)However, there is taken not to be a real risk that a non‑citizen will suffer significant harm in a country if the Minister is satisfied that:
(a)it would be reasonable for the non‑citizen to relocate to an area of the country where there would not be a real risk that the non‑citizen will suffer significant harm; or
…
The IAA accepted that the applicant faced a real risk of significant harm from the people in his village in light of his criminal conviction. However, it found that it would be reasonable for the applicant to relocate to Colombo where there was no such real risk. In doing so, the IAA purported to apply s.36(2B) of the Act. The IAA’s critical findings in this respect were set out in [77] and [78] of its statement of reasons:
77.The DFAT report identifies an absence of family connections and a lack of financial resources as factors limiting relocation and that returnees to Sri Lanka report difficulty accessing food, water, shelter and sanitation. DFAT note too the cost of living in Colombo is higher as are crime rates. I accept the applicant will face some difficulty relocating to Colombo as he must find suitable employment and accommodation. I note his concerns regarding obtaining letters from the Grama Seveka and consider that to be a reference to registering his residence. The DFAT report states there is no compulsory registration of Tamils in the south of Sri Lanka, which would include Colombo. The Sri Lankan Constitution allows freedom of movement and Colombo is the top destination for people to relocate to within Sri Lanka. While I note his claims he is unable to speak Singhalese the DFAT report states Colombo is highly integrated with roughly equal populations of Singhalese, Tamils and Muslims, due in part to Tamils relocating there for the greater economic opportunities available in Colombo. DFAT reports too that mono-lingual Tamils can sometimes have difficulty communicating with government authorities.
78.I accepted above the applicant’s wife intends to end their marriage. The evidence before me is the applicant told the delegate he is financially secure and while he was working in the Middle East, he did not remit money to his wife, she earned income from farming the family land. Nonetheless I consider it plausible if he relocated to Colombo, the applicant would provide some economic support to her and their children. I note the applicant has an incomplete primary school level of education however he has extensive experience working in the Middle East. I note as well the applicant is middle aged and has shown himself to have the wherewithal to adapt to living in new environments in three countries in the Middle East as well as in Australia.
(Emphasis in original)
The applicant contends that the IAA fell into error in its attempt to apply s.36(2B) of the Act. In particular, he contends that the IAA:
a)failed to consider whether he would be able to find work in Colombo;
b)did not explain how the ability to find work in the Middle East had any relevance in relation to finding work in Colombo;
c)failed to consider whether a Tamil with three years of primary school education, whose only previous work in Sri Lanka was as a rice farmer, could secure similar work in Colombo to the work he had in the Middle East; and
d)failed to give proper consideration to the absence of family connections.
The Minister argued that the IAA did have regard to all of the relevant personal circumstances of the applicant and that, in considering relocation, it was not required to “elaborate on every aspect of its practical application”: see SZBJI v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 216 at [22] (SZBJI).
It was assumed by both parties, correctly in my view, that s.36(2B) of the Act is to be understood as importing what is often referred to as the “relocation principle” as explained by the High Court in SZATV v Minister for Immigration & Citizenship (2007) 233 CLR 18; [2007] HCA 40 (SZATV). That principle is applied when considering whether a person comes within the definition of “refugee” in Article 1A(2) of the Refugees Convention[1] as amended by the Refugees Protocol (Convention). That Article relevantly states:
A.For the purposes of the present Convention, the term “refugee” shall apply to any person who:
…
(2)… owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
[1] Convention Relating to the Status of Refugees (1951) as amended by the Protocol Relating to the Status of Refugees (1967).
…
In SZATV, the plurality stated at [19], that this principle finds its place in the Convention definition of “refugee” by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440:
The Refugee 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 would 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. …
In Minister for Immigration & Border Protection v SZSCA (2014) 254 CLR 317 at [40]; [2014] HCA 45, Gageler J explained:
Underlying the principle is a purposive understanding of the causative connection connoted by the words “owing to” within the context of the Convention. The purposive understanding is that a person is not in need of the protection of the international community, for which the Convention provides, outside the country of his or her nationality if it would be reasonable for the person to return to a region within that country where the person would be safe from persecution.
The scope and application of the relocation principle was explained by Tracey and Foster JJ in SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415 at [124]; [2009] FCAFC 46 (SZMCD), where their Honours said:
The test for relocation is whether it is practicable in the particular circumstances of the particular applicant (SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa 52 FCR at 442-443, especially at 443C-D.
That passage has been applied on many occasions including (this year alone on appeal from decisions of this Court): BWB15 v Minister for Immigration & Border Protection [2017] FCA 1073 at [32]; SZSJB v Minister for Immigration & Border Protection [2017] FCA 229 at [23]; BBO16 v Minister for Immigration & Border Protection [2017] FCA 212 at [57] and [77]; AUP15 v Minister for Immigration & Border Protection [2017] FCA 192 at [46] citing MZACX v Minister for Immigration & Border Protection [2016] FCA 1212.
In SZBJI, Allsop J (as his Honour then was) said at [22]:
Mr Reilly, who appeared for the Minister referred me to SZFCB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 961 especially at [24] and SZBGC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1168 especially at [26]. I accept that the Tribunal is not required in addressing relocation to elaborate on every aspect of its practical application. However, if from the reasons and the material before me, it does not appear that the practical application of relocation has been addressed, it would be wrong to assume that it has been.
In the passage in SZFCB v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 961 referred to by his Honour, Sackville J said at [24]:
In the present case, in my opinion, the RRT did give consideration to the practical realities facing the appellant if he was required to relocate outside Tamil Nadu. It took into account his educational qualifications, his acknowledged ability to obtain employment, his language skills, and the remoteness of any threat to his safety. The appellant did not suggest that there would be any difficulty about his family accompanying him. Whether or not the RRT’s assessment of the facts was entirely accurate, it cannot be said that it failed to give consideration to how, in a practical sense, the appellant could reasonably be expected to relocate within India.
In SZBGC v Minister for Immigration & Multicultural and Indigenous Affairs [2005] FCA 1168, the other case referred to by Allsop J in SZBJI, Emmett J (as his Honour then was) said, at [26]:
No doubt, in a relevant case the summary way in which the Tribunal addressed relocation could involve the Tribunal failing to apply the correct test. Whether this is the case must depend on the circumstances and a reading of the Tribunal’s reasons as a whole. Here the Tribunal found relocation to be reasonably practical. That is a factual finding for the Tribunal and not this Court. In making it, the Tribunal was not required as a separate matter to elaborate upon how relocation could practically occur. It considered relocation to be reasonable in the circumstances of the case. That conclusion involved no jurisdictional error. There is nothing in the Tribunal’s reasons to suggest it applied the wrong test.
The applicant relied on the more recent decision of Mortimer J in MZANX v Minister for Immigration & Border Protection [2017] FCA 307 (MZANX). Given the extent of that reliance, it is necessary to refer to her Honour’s reasoning in some detail.
First, having referred to the relocation principle as it was explained in SZATV, her Honour said at [51]:
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.
Next, having referred to a number of authorities and authoritative texts, her Honour stated at [55]:
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 (see [60] to [61] below). Likewise, the circumstances of that individual – her or his personal strengths and weaknesses, skills, material and family support, will need to be considered in some detail. A broad brush approach will not satisfy the requirements of the task to be performed. 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. …
Her Honour explained, at [56], that there must be a considered attempt to assess what, in a real and practical sense, will happen to that individual and her or his family in the circumstances.
Although her Honour did not refer to the decision of the Full Court in SZMCD, her next statement at [57], was to the same effect of what was said by Tracey and Foster JJ in that case:
How these inquiries are to be made will be informed, of course, by the nature of the claims made by an applicant, and what he or she says about the practicalities of relocation. This includes what has come to be described as “objections” to relocation. Recently, Markovic J in SZVRA v Minister for Immigration and Border Protection [2017] FCA 121 said at [18]:
Whether a claimant can reasonably be expected to relocate depends upon the framework set by an applicant’s particular objection to relocation.
Her Honour went on to explain, at [58] that, while the “framework” set by an applicant was an important factor, the task of the reviewer was not confined to the matters raised by an applicant, but must be based on all of the material before it.
Next, having noted that the relocation principle did not require an insistence of equality of living standards, her Honour considered the particular reasoning of the decision-maker in that case concerning relocation. The applicant placed particular emphasis on the following paragraph in this part of her Honour’s reasons at [66]:
… In satisfying herself on reasonableness of the relocation to Kabul, she took into account the fact that the appellant had moved, with his family, to Tehran and found employment there making bags. That is in the circumstances a permissible and obvious aspect of the evidence for a decision-maker to consider. However, the reviewer moves from that fact immediately to a conclusion (in [85]) that the appellant will be able to re-establish his and his family’s residence in Kabul. It is true that employment was but one factor in such re-establishment, but it is also clear on the reviewer’s reasons that it was a factor of some weight. The difficulty is that the reviewer referred to no evidence about how the appellant might find employment in Kabul. She referred to no evidence about what kinds of jobs were available for uneducated Hazara. Could the appellant secure a similar kind of job to the one he had in Tehran? Perhaps, perhaps not: the factual investigation was not undertaken. Whether there was any similarity between the employment opportunities for Hazara in Tehran and those in Kabul was not the subject of any consideration. What the reviewer did know, and accepted, was that in Kabul there were “increased pressures being put on labour markets and resources and widespread unemployment” which limited the “ability of a large number of people to meet their basic needs” (see [84] of the reasons). It may well have been that despite this general finding, the reviewer would have been able, having examined the factual material more closely, to nevertheless conclude that the appellant was likely to secure employment. However, she did not undertake any such assessment.
Nothing in MZANX is inconsistent with what was said by Tracey and Foster JJ in SZMCD. The determination of the reasonableness of relocation in each matter will depend on the facts and claims before the relevant decision maker. The question of whether that determination has been undertaken according to law will, in turn, depend on a proper understanding of the reasons given by the decision maker for its conclusion.
The issue of relocation did not arise in any detail until the interview conducted by the IAA. In his first protection visa application, the applicant had said that he would not be able to relocate because Sri Lanka was a small country and relocation was not a “safe move”. In the statement submitted with his second application, the applicant said:
40.Relocation is not possible, I will be at risk anywhere I go.
41.The Paramilitary are still continuing to visit my house looking for me.
42.They have ordered me to attend their office which means that they intended to kill me and will not stop until they do.
43.I believe they will kill me because I was active against them, even though some years have passed since the election, they would be wanting to be rid of any dissidents before next election.
These statements were only made in respect of the initial claims made by the applicant and not the claim concerning the effect of the applicant’s criminal conviction. They did not address the issue beyond the question of the risk of harm arising in other parts of Sri Lanka.
In its reasons, the IAA noted that, at the interview, it “asked the applicant were there any reasons why he would be unable to relocate to Colombo”: [9]. It summarised the applicant’s response at [75] of its reasons:
I raised the issue of the applicant relocating to Colombo with him at the interview. The applicant told me he could not relocate to Colombo. That was because it would be difficult for him to obtain letters from the Grama Sevaka. He does not know Singhalese. He would be looked down upon because of his conviction. He would have to live alone, without his wife.
(Emphasis in original)
The IAA in its reasons dealt expressly with each of the matters raised by the applicant:
76.… I consider as his criminal conviction remains unknown in Colombo, no one in Colombo will look down upon him for that reason.
77.… I note his concerns regarding obtaining letters from the Grama Seveka and consider that to be a reference to registering his residence. The DFAT report states there is no compulsory registration of Tamils in the south of Sri Lanka, which would include Colombo. … While I note his claims he is unable to speak Singhalese the DFAT report states Colombo is highly integrated with roughly equal populations of Singhalese, Tamils and Muslims, due in part to Tamils relocating there for the greater economic opportunities available in Colombo. DFAT reports too that mono-lingual Tamils can sometimes have difficulty communicating with government authorities.
78.I accepted above the applicant’s wife intends to end their marriage. … Nonetheless I consider it plausible if he relocated to Colombo, the applicant would provide some economic support to her and their children. …
(Emphasis in original)
The IAA also considered factors that were not raised by the applicant but which arose from other material before it, particularly, a report from the Department of Foreign Affairs and Trade. These included an absence of family connections and a lack of financial resources, the cost of living, crime rates, the need to find employment and accommodation, and the applicant’s low level of education.
In light of that, the applicant’s real complaint cannot be that the IAA overlooked any particular factor that arose in connection with the issue of relocation. It did not. Rather, his complaint is that the IAA did not apply the level of scrutiny which Mortimer J found was necessary on the facts of the case before her Honour. Thus, the applicant at [44] of his submissions, submitted that:
The IAA failed to consider whether a Tamil with three years of primary school education, whose only previous work in Sri Lanka was as a rice farmer, could secure similar work in Colombo to the work he had in the Middle East. …
(Citations omitted)
The level of scrutiny referred to in MZANX is not a universally applicable one. What is required depends, as I have observed, on the facts of each case. In Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437; [1994] FCA 535 (Randhawa), a case of long-standing authority, criticism was made of the generality of the findings made by the decision maker. The reasons concerning the reasonableness of relocation are found at 440 and were:
…
·the DFAT cables advise that there are large communities of Sikhs in several areas outside the Punjab, thereby providing the opportunity for the applicant to live within a Sikh community if he relocated; and
·the applicant has lived outside the Punjab previously.
The Court found that there was no error arising from the generality of those reasons. Black CJ said, at 443:
… Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant. …
Beaumont J said, at 452:
… Whilst there is some force in the appellant's criticism of the generality and consequent lack of specificity in the delegate's reasoning on the critical question whether it was unreasonable for the appellant to relocate, the context, that is, the generalised character of the appellant's own material itself, must be taken into account. …
No authority since Randhawa has put the correctness of those passages in any doubt. In MZANX, Mortimer J referred to Randhawa as authoritative and must be taken to have made her decision on the basis that it was correct. It is binding on this Court.
The level of scrutiny and detail of reasoning given by the IAA in respect of the issue of relocation reflected the material before it, including the applicant’s submissions. Its reasons disclose both that it considered all of the issues that arose on that material and came to a conclusion that was logically based on that material. It did not fail to properly determine the question posed by s.36(2B) of the Act. This ground is rejected.
Conclusion
There is no jurisdictional error in the IAA’s decision. The application must be dismissed.
I certify that the preceding fifty-six (56) paragraphs are a true copy of the reasons for judgment of Judge Smith
Date: 2 November 2017
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