Minister for Immigration and Citizenship v CZAY
[2013] FCA 244
FEDERAL COURT OF AUSTRALIA
Minister for Immigration and Citizenship v CZAY [2013] FCA 244
Citation: Minister for Immigration and Citizenship v CZAY [2013] FCA 244 Appeal from: CZAY v Minister for Immigration and Citizenship & Anor [2012] FMCA 50 Parties: MINISTER FOR IMMIGRATION AND CITIZENSHIP v CZAY and REFUGEE REVIEW TRIBUNAL File number: ACD 21 of 2012 Judge: NICHOLAS J Date of judgment: 20 March 2013 Legislation: Convention relating to the Status of Refugees 1951 Cases cited: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1Plaintiff M13/2011v Minister for Immigration and Citizenship (2011) 277 ALR 667
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18Date of hearing: 3 August 2012 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 29 Counsel for the Appellants: Mr S B Lloyd SC with Ms A M Mitchelmore Solicitor for the Appellants: Clayton Utz Counsel for the Respondent: Mr C Fairfield (Pro Bono)
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 21 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
AND: CZAY
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE OF ORDER:
20 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.Orders 2-4 made by the Federal Magistrate on 31 January 2012 be set aside.
3.In lieu thereof, the first respondent’s application to the Federal Magistrates Court (except insofar as it sought an extension of time) be dismissed.
4.The first respondent pay the appellant’s costs of the proceeding before the Federal Magistrate and of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
ACD 21 of 2012
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: MINISTER FOR IMMIGRATION AND CITIZENSHIP
Appellant
AND: CZAY
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
NICHOLAS J
DATE:
20 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
INTRODUCTION
This is an appeal by the appellant (the Minister) from the judgment of a Federal Magistrate (Neville FM) given on 31 January 2012 in favour of the first respondent (the respondent) in a proceeding for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal). On 4 March 2010, the Tribunal affirmed the decision of a delegate of the appellant made on 20 May 2009 to refuse the respondent’s application for a protection (Class XA) visa. The primary judge found that the Tribunal’s decision was affected by jurisdictional error. His Honour ordered that writs of certiorari and mandamus should be issued in order to quash the Tribunal’s decision and compel the Tribunal to determine the respondent’s application for a protection visa according to law.
BACKGROUND FACTS
The respondent is a citizen of India who claimed to be from a rural area in the Punjab. On 16 March 2009 she applied for a Protection (Class XA) visa. A delegate of the Minister decided to refuse to grant the visa on 20 May 2009. On 5 June 2009 the respondent applied to the Tribunal for review of the delegate’s decision.
By its decision of 4 March 2010, the Tribunal affirmed the delegate’s decision to refuse the respondent a protection visa. The respondent commenced a proceeding in the Federal Magistrate’s Court where she was successful in obtaining orders quashing the Tribunal’s decision. The Minister has appealed against the Federal Magistrate’s judgment.
The respondent came to Australia with her husband. The respondent is a qualified nurse who lived and worked at various hospitals in India between 2005 and 2008. She married her husband in 2007 and came to Australia in 2008. She claimed that her marriage to her husband was arranged. The respondent separated from her husband in January 2009.
After she left her husband in January 2009, the respondent went to live in a women’s refuge. The respondent claimed that her husband’s family threatened to kill her if she returned to India. She also claimed that her husband’s family threatened to kill her parents who still live in India.
The respondent also claimed that she had been mistreated and abused by her husband. She claimed that her husband and his sister both beat her, and that her husband sexually assaulted her. She claimed that on the day she left her husband, he withdrew $2,000 from her bank account without her knowledge or approval.
The respondent told the Tribunal that she fears that if she returns to India she will be killed by her husband’s family because she left him and did not support him financially. The respondent also told the Tribunal that there are many cases in the Punjab where women have been victims of “honour” killings.
TRIBUNAL’S FINDINGS
The Tribunal accepted that the respondent was subjected to physical, sexual and psychological violence by her husband. It accepted that he was responsible for stealing money from the respondent’s bank account on 7 January 2009. And it also accepted that she has had no further contact with her husband since that time.
Further, the Tribunal accepted that the respondent’s husband’s family had made threats against the respondent’s life, and that these threats were made in the context of financial claims made against her. The Tribunal also accepted that the harm that the respondent feared from her husband and his family amounted to serious harm for the purposes of the Convention relating to the Status of Refugees 1951 (the Convention).
However, the Tribunal decided to affirm the delegate’s decision because it was satisfied that the respondent would be able to relocate within India. The Tribunal reached this conclusion after considering country information and the respondent’s particular circumstances including her age, education and work experience.
The Tribunal raised the possibility of the respondent relocating to another part of India during the Tribunal hearing. The Tribunal recorded (at [53]):
[53]The Tribunal noted that the applicant is highly educated and qualified and has worked as a nurse in several different hospitals in India, and also has work experience in Australia. The Tribunal suggested that the applicant may be in a relatively good position to return to the type of work she had previously done in India when she lived and worked in hospitals, particularly in the larger Indian cities. The applicant responded that it is not safe for a woman to live alone in those places.
[emphasis added]
The Tribunal referred in its reasons to the lack of adequate State protection available to women in the Punjab region. Having accepted that there was no adequate protection available there, the Tribunal turned to consider the possibility of the respondent relocating to another part of India. It referred to a series of reports (at [103]-[106]) of the UK Home Office and the Department of Foreign Affairs and Trade (the DFAT Response). The DFAT Response indicated that the ability of a single mother from the Punjab to relocate within India would depend upon her individual circumstances including her education levels, monetary resources and support networks. It also stated that “[i]n general … the major metropolises (Delhi, Mumbai, Kolkatta) are generally more liberal in attitude.”
The Tribunal referred to the Full Court’s decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. The Tribunal said (at [107]-[110]):
[107]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.
[108]In Randhawa v MILGEA (1994) 52 FCR 437, Black CJ observed that the focus of the Convention is not upon the protection that the country of nationality might be able to provide in particular regions, but upon a more general notion of protection by the whole of the country. At 441, he considered that the reason for this was that:
If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.
[109]In Randhawa, Black CJ held that given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether he or she could “reasonably be expected to do so”. His Honour stated (at 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.
Justice Beaumont agreed that relocation must be a reasonable option, stating (at 451):
... that is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution.
[110]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 (Randhawa, per Black CJ at 443). Conversely, if it is reasonable for the applicant to relocate to another part of the country then that applicant’s fear is not well-founded.
The Tribunal said (at [112]-[118]):
[112]The Tribunal has carefully considered the situation for the applicant in India both now and in the foreseeable future. The Tribunal finds that the applicant could safely live in India by relocating to another area within India for the reasons outlined below.
[113]The Tribunal has considered the evidence of the applicant and the witness at hearing that it would not be safe for the applicant to live as a single woman in India; that it would be difficult for her to obtain employment away from her home town and because nursing is a highly competitive and scare [sic] job market; and because she has limited savings or financial resources. However the 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.
[114]The Tribunal finds that the applicant is 33 years old and is estranged from her husband. Given that the applicant is of a mature age and has in the past lived separately from her family, it would not be unreasonable for her to live away from her family home in the future. The Tribunal notes in relation to this point that if the applicant were to remain in Australia she would also be living away from her family, other than her sister who is temporarily resident in Australia at the time of this decision.
[115]The Tribunal has noted country information in respect to the difficulties faced by single women in India, including the observation of the UK Home Office in July 2004 (set out above) that it is still difficult for woman [sic] to live on their own in India, and that the ability of women to access help and assistance is affected by factors including location, literacy level, and whether or not they have children. However 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.
[116]The applicant holds a Diploma in General Nursing and Midwifery, and was a registered nurse with the Punjab Nurses Registration Council prior to leaving India. The applicant has worked in the past in India, including work as a Staff Nurse at Popli Hospital between October 2005 and April 2006; as an apprentice and then as a Staff Nurse at Cosmo Hospital between May 2006 and December 2006; and as a Staff Nurse in the Surgery Ward at Gian Sagar Medical College and Hospital between January 2007 and April 2008. Significantly, and according to her own evidence, the applicant also lived at, or attached to, the hospitals where she was employed throughout her years of employment. She continued to live at Gian Sagar Hospital after she married her husband in early 2008 and until her departure for Australia. The applicant has excellent employment references from the hospitals in which she worked in India. The applicant has been employed in an aged care nursing home in Australia, and has drawn a salary from that employment. The applicant is highly educated and language is no barrier to relocation. According to her evidence the applicant speaks English, Punjabi and Hindi.
[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. On the information she has provided regarding her background and circumstances, the Tribunal is satisfied that relocation for the applicant is reasonable and that she can avoid the harm she fears by relocating within India. The 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 FEDERAL MAGISTRATE’S DECISION
The Federal Magistrate referred to various jurisdictional errors which he considered the Tribunal had committed and which he considered vitiated its decision. The Federal Magistrate’s decision includes a discussion of the judgments in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 and S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473.
The Federal Magistrate also referred to passages in the judgment of SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 and the judgment of Hayne J in Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667. The Federal Magistrate placed particular reliance upon the reasons of Hayne J in M13/2011 particularly [19]-[22] of Hayne J’s judgment. The Federal Magistrate said at [36]-[38]:
[36]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.
[37]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 [See Plaintiff M13/2011 at [19] – [21], [22], and [28]. His Honour’s comments, at [30], would also follow.]
[38]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.
The Minister placed some emphasis upon the Federal Magistrate’s use of the word “properly” in these passages, the implication apparently being that though the Tribunal had considered these matters, it was the Federal Magistrate’s view that the Tribunal had not done so adequately or sufficiently. This was said by the Minister to suggest that the Federal Magistrate had engaged in impermissible merits review.
The parts of the Federal Magistrate’s reasons in which jurisdictional errors are identified are found in [119]-[127] of his Honour’s reasons. The Federal Magistrate said at [119]-[127]:
[119]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.
[120]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).
[121]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.
[122]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.
[123]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.
[124]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.
[125]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.
[126]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 [sic] the Tribunal to come to the conclusion it did.
[127]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.
It is apparent that the Federal Magistrate purported to identify four jurisdictional errors. The first two of these errors are closely related and are best considered together. The four errors referred to by his Honour were:
·The Tribunal failed to “address or properly address” the respondent’s particular circumstances when concluding that it was reasonable for her to relocate to another location in India away from the Punjab region. The Tribunal did not offer any “considered review” of the State protection available in other locations and it also failed to identify any other location to which the respondent could relocate (Errors 1 and 2).
·There were inconsistencies in the Tribunal’s consideration of the country information. (At various points the Federal Magistrate suggested the inconsistency might have involved illogicality although his Honour appears not to have made any finding to that effect) (Error 3).
·There was no evidence to support the Tribunal’s finding that the respondent would have saved some money while working in Australia (Error 4).
GROUNDS OF APPEAL
The Minister relies on four grounds of appeal in this Court:
1.The Court erred in holding that, on the issue of the first respondent’s ability to relocate within India, the second respondent (Tribunal) failed to consider her particular circumstances, and in particular that the Tribunal failed to consider any locality to which the first respondent could relocate outside of the Punjab and the issue of state protection in any such locality and by reason thereof made a jurisdictional error.
2.The Court erred in holding that the Tribunal’s reasoning in relation to country information was inconsistent and/or illogical, and further erred in holding that the Tribunal’s reasoning in this regard gave rise to jurisdictional error.
3.The Court erred in holding that what it perceived to be a lack of assessment on the part of the Tribunal of the first respondent’s financial circumstances constituted a jurisdictional error.
4.The Court erred in finding that it was not open for the Tribunal to conclude that it was reasonable for the first respondent to relocate to a region in India away from her home town and village.
The respondent’s counsel conceded that ground 2 must be upheld in that the Federal Magistrate had erred in finding that the Tribunal’s decision was vitiated by jurisdictional error based upon any alleged inconsistency or illogicality in its assessment of country information. The respondent’s counsel also conceded that ground 3 must be upheld because the Federal Magistrate had erred in finding that the Tribunal had committed a jurisdictional error in forming its view concerning the respondent’s financial circumstances. Each of these concessions was properly made. Accordingly, the only grounds of appeal that remain relevant are grounds 1 and 4. Both these grounds relate to what I have called Errors 1 and 2.
CONSIDERATION
Senior Counsel for the Minister argued forcefully, and in my view with some justification, that the Federal Magistrate engaged in merits review. It is apparent that the Federal Magistrate was convinced that the respondent should have been granted a protection visa. Indeed, his Honour’s reasons (at [3]) include a recommendation that the respondent be granted a protection visa. Senior Counsel for the Minister argued that it is remarkable to find in the reasons for decision of a judicial officer a recommendation of such a kind particularly in circumstances where the Federal Magistrate concerned had criticised the Tribunal for what he perceived to be a “singular and significant gap” in the Tribunal’s consideration of relevant factual matters. Whether it is remarkable or not is beside the point. What it does suggest is that the Federal Magistrate, who was obviously sympathetic to the respondent’s situation, became pre-occupied with the merits of her application for a protection visa. This appears to me to have led to a situation in which the Federal Magistrate was perhaps a little too willing to attribute jurisdictional error to the Tribunal: cf. Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272.
It is clear that the Tribunal considered the possibility of persecution of the respondent by her estranged husband’s family occurring even if she was to relocate to other parts of India. It is also clear that the Tribunal was satisfied that the respondent would not be persecuted by her estranged husband’s family if she was to relocate. The Tribunal also found that the harm feared by the respondent was from her estranged husband and his family and that those difficulties could be avoided if she lived elsewhere in India. That is not a surprising conclusion. When the Tribunal raised with the respondent the possibility of relocating she did not refer to any threat posed by her estranged husband or his parents. In particular, when it was suggested to the respondent that she might return to the type of work she had previously performed when she lived and worked in hospitals, particularly in the larger Indian cities, the respondent claimed “that it is not safe for a woman to live alone in those places” (at [53]).
The more difficult question is whether the Tribunal had regard to the respondent’s personal security as a single woman when considering whether or not she might relocate within India. Her counsel submitted that the Tribunal could not do so in any meaningful way without considering which particular part of India the respondent might relocate to.
However, the Tribunal did identify places to which the respondent could relocate. It noted that she had the skills and experience “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 went on to refer to the respondent’s high level of education and her financial resources.
The Tribunal made a general finding that the respondent would be able to safely relocate and that it would be reasonable for her to do so in the circumstances. But it seems to me that in deciding whether it was reasonable for the respondent to relocate to another part of India, in particular Mumbai or Delhi or another large city of India, it was necessary for the Tribunal to consider whether the respondent could live safely in any of those places. The only remaining question is whether or not the Tribunal did so.
At para [14] above, I have referred to a number of paragraphs in the Tribunal’s reasons for decision. These paragraphs contain clear indications that the Tribunal did give consideration to the question of whether or not the respondent could live safely in Mumbai or Delhi or another large city of India. These paragraphs also show that the Tribunal gave consideration to the respondent’s particular circumstances. It is true that much of the discussion in these paragraphs concerns the respondent’s educational qualifications, her employment history, and the financial viability of her living in one of these cities. But it is clear, in my view, that the Tribunal regarded these matters as relevant to the issue of the respondent’s personal security and they were considered by it on that basis: see esp. para [113], [115] and [118] of its reasons for decision.
As to the matter of State protection, the Federal Magistrate said that the Tribunal did not offer any “considered review” of the State protection available outside the Punjab. However, the Tribunal found that the harm that the respondent feared from persecution by non-State actors was confined to the area in which she had previously lived. In those circumstances, any issue as to the availability of State protection against such persecution in Mumbai or Delhi or another large city of India (outside of Punjab) did not arise: cf. Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 at [29] (Gleeson CJ).
In the result, the appeal should be allowed. I will make orders accordingly.
I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Nicholas. Associate:
Dated: 20 March 2013
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