MZAGO v Minister for Immigration - [2015] FCCA 1305

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAGO v MINISTER FOR IMMIGRATION & ANOR

[2015] FCCA 1305

Catchwords:
MIGRATION – Judicial review – whether applicant at risk in India for inter-caste marriage can relocate – test for relocation – whether Tribunal applied the correct test – relief granted.

Legislation:

Migration Act 1958 (Cth), s.91R(1)(b)

Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195
Minister for Immigration and Border Protection v SZSCA [2014] HCA 45
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303
Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26
SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18
SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824
SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415
SZOZF v Minister for Immigration & Anor [2011] FMCA 364

Applicant:

MZAGO

First Respondent:

MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

MLG 1255 of 2014

Judgment of:

Judge F. Turner

Hearing date:

22 April 2015

Date of Last Submission:

22 April 2015

Delivered at:

Melbourne

Delivered on:

22 May 2015

REPRESENTATION

Counsel for the Applicant:

Mr J.R Young

Solicitors for the Applicant:

Shamser Thapa & Associates

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

A writ of certiorari issue directed to the Refugee Review Tribunal quashing its decision dated 5 June 2014.
A writ of mandamus issue directed to the Refugee Review Tribunal requiring it to determine according to law the application made to it, to review the decision of a delegate of the first respondent dated

25 November 2013.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1255 of 2014

MZAGO

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application for judicial review of the decision of the Refugee Review Tribunal (the “Tribunal”) dated 5 June 2014. That decision affirmed the decision of a delegate to the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant’s amended application filed on 7 April 2015 contains the following grounds for judicial review:
(1)The Second Respondent made jurisdictional error by failing to carry out its jurisdictional task in determining whether there was a real chance that the Applicant and her husband would be located by her persecutors if they moved to another State in India.
(2)The Second Respondent made jurisdictional error by assuming that the Applicant and her husband would not be living openly and as easily located professionals in any part of India.
(3)The Second Respondent made jurisdiction error by having regard to irrelevant consideration namely:
(a)Mobile telephone tracking technology and its use by police in a single State jurisdiction
(b)The capability and willingness of police to locate individuals of interest in a different State
(4)The Second Respondent made jurisdictional error by failing to have regard to evidence which it accepted that “if someone is determined to find a person in a different State they can locate him or her.”
(5)The Second Respondent made jurisdictional error by failing to have regard to relevant considerations, namely:
(a)Straight forward searches to locate professional persons living openly; and
(b)Information which the prosecutors would be able to obtain from other members of S’s family.
(6)The Second Respondent made jurisdictional error by making a decision which was irrational or unreasonable.
Particulars
See 1 to 5 above
The applicant arrived in Australia on 5 July 2009 but departed to India on 9 April 2010. She returned to Australia on 27 August 2011 and applied for a sub-class 485 Skilled Graduate visa on 25 November 2011. That visa was refused by a delegate on 23 July 2012 (Court Book “CB” p.62), as the applicant had not completed the mandatory English language test within the previous 24 months. The decision refusing that visa was reviewed and affirmed by the Tribunal.
On 9 May 2013 the applicant applied for a Protection visa. On 2 August 2013 the application for a Protection visa was deemed invalid as the applicant failed to provide her personal identifiers (CB p.63.3).
On 11 September 2013 the applicant submitted a second application for a Protection visa (CB p.12). The Department wrote to the applicant on 13 September 2013 and requested details of her personal identifiers (CB p.63.4). The applicant provided those on 28 October 2013 (Ibid). The delegate refused to grant a visa (CB p.70).
The applicant applied to the Tribunal to review that decision (CB p.71).
On 5 February 2014 the applicant was invited to appear before the Tribunal on 13 March 2014 (CB p.79) and was advised that the “Tribunal has considered the material before it but it is unable to make a favourable decision on this information alone” (CB p.79.3). The applicant was advised that if she did not attend the hearing, the Tribunal may make a decision (Ibid at pt.8). The applicant attended the hearing on 13 March 2014.
The applicant submitted post hearing written evidence on 24 March 2014 (CB p.91). A further hearing was listed on 3 April 2014 (CB p.113). The applicant appeared at that hearing (CB p.118). The applicant submitted post hearing written evidence on 7 April 2014 (CB p.121).
On 5 June 2014 the Tribunal affirmed the decision not to grant the applicant a Protection (Class XA) visa (CB p.132). The applicant seeks judicial review of that decision.
The applicant filed and served an Amended Application and written submissions on 7 April 2015.
The first respondent filed and served an Outline of Submissions on

14 April 2015. The applicant’s claim to engage Australia’s protection obligations are summarised in the first respondent’s Outline at [19] as follows:
“In essence, the Applicant’s claims to engage Australia’s protection obligations relate to her fear of harm from the family of her husband, a Hindu. The Applicant is a Sikh, and resident of Nangal, in Punjab. The Tribunal referred to the Applicant’s husband as S. The Applicant married S in a religious ceremony in India in 2011. S’s father, the brother of a powerful local politician, disapproved of the relationship between the Applicant and S. The Applicant and her parents were threatened by her husband’s father, and by police, and warned off taking action against these threats because of the influence S’s family could assert through their connections.”
The Tribunal stated that the issues before it were “whether the applicant had a well-founded fear of persecution and whether she could relocate” (CB p.135 [20]). The Tribunal found the applicant’s evidence to be “credible overall” (CB p.136 [23]). The Tribunal set out the following summary of the applicant’s claims at [31]:
“The applicant claimed in her Protection visa application that she had a problem with inter-caste marriage and had faced attacks and threats from the local mafia. She claimed that her parents sent her to Australia because the boy’s family want to kill her and that her parents also disapprove. She claimed that the boy’s father is a member of parliament and connected to local police and that police harass her family at home. She claimed that the boy’s father and family have been tracing her and the boy’s phone calls, the boy’s father hired local mafia and his family threatened her family. She claimed that she was tortured very badly by her family and got out of the country with help from her boyfriend.”
The Tribunal accepted that the applicant had been in a relationship with her boyfriend (‘S’) since 2008 (CB p.138 [33]). S is a Hindu and the applicant is a Sikh. The applicant says she fears harm on return to India because she is a middle class Sikh who had married S who is an upper class Hindu (Ibid [34]).
The Tribunal accepted that “the applicant was threatened at her work place by S’s father and several other men and harassed by telephone” (Ibid [35]).
The Tribunal accepted that “the applicant was called to a meeting by [the police] and confronted by S’s parents that S’s mother assaulted her, and that she was warned by the police officer to leave [S] or they could ruin her life” (Ibid [36]).
The Tribunal accepted that the applicant received abusive phone calls in 2008 from other unnamed people (CB p.139 [37]).
The Tribunal did not accept that “the applicant was attacked or threatened by local mafia” (Ibid [38]).
The Tribunal accepted that S’s family had threatened the applicant’s family by telephone (Ibid [40]).
The applicant and S were married in January 2011 (CB p.141 [46]).
The Tribunal considered “whether the applicant would face harm for reason of her membership of the particular social group of women in inter-caste or inter-religion marriages” (CB p.143 [53]).
The Tribunal found that the harm the applicant would face on her return to India would amount to serious harm within s.91R(1)(b) of the Migration Act 1958 (the “Act”). The Tribunal found that state protection would not be available to the applicant (CB p.148 [75]).

Relocation

The Tribunal then considered whether the applicant could relocate within India. Relevant decisions on the tests for relocation are as follows.
As decided by the Full Court in SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415 at [124]-[126]:
“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] HCA 41SZFDV v Minister for Immigration and Citizenship[2007] ALMD 6401 SZFDV v Minister for Immigration and Citizenship237 ALR 660; 81 ALJR 1679; 233 CLR 51; 97 ALD 27). 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.
We do not think that the decision of Stone J in SZCBT v Minister for Immigration and Multicultural Affairs[2007] FCA 9 dictates any different result. In our view, the result in that case turned on its own facts. Of particular importance in that case was the acceptance by the Tribunal that the applicant had been harassed in the past as he had alleged.
In the present case, the Tribunal rejected all of the appellant’s claims of past harm and there was no basis for the Tribunal to speculate that the appellant may be harmed if he relocated.”
In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, Black CJ observed that the focus of the Convention definition 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. Black CJ 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.”(Ibid at p441)
Black CJ also 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 p.442:
“… a person’s fear of persecution in relation to that country 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 agreed that relocation must be a reasonable option, stating at p.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.”
As stated by Hayne J in Plaintiff M13/2011 v Minister for Immigration and Citizenship [2011] HCA 23 at [21]-[22]:
“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[1]. As three members of this Court pointed out in SZATV v Minister for Immigration and Citizenship[2], “[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…
… it is evident that the particular circumstances of the plaintiff were not considered by the delegate… By not correctly identifying the relevant question, the delegate made a jurisdictional error.”
[1] Randhawa v Minister for Immigration, Local Government and Ethnic Affairs [1994] FCA 1253; (1994) 52 FCR 437.
[2][2007] HCA 40; (2007) 233 CLR 18 at 27 [24] per Gummow, Hayne and Crennan JJ; [2007] HCA 40. See also at 48-49 [100]-[102] per Kirby J, 49 [105] per Callinan J.
In Minister for Immigration and Border Protection v SZSCA [2014] HCA 45, a majority of the High Court held at [21]:
“The “internal relocation principle” is well established. According to this principle, a person is not a refugee within the meaning of the Convention if he could avail himself of the real protection of his country of nationality by relocating to another part of that country. The connection of the principle to the definition of a refugee in the Convention, and the conditions for the principle's application, were explained by this Court in SZATV[3]. In that case the Tribunal refused to grant a protection visa because it determined that the visa applicant, a Ukrainian journalist who had suffered persecution for his political opinions, could relocate to another region of Ukraine, even though he might not be able to continue to work there as a journalist. The Tribunal failed to consider what might reasonably be expected of the applicant with respect to relocation, which this Court held was an error of law[4].
And at [23]:
“… If a person could have relocated to a place within his own country where he could have no well-founded fear of persecution, and where he could reasonably be expected to relocate, then the person is outside the country of his nationality because he has chosen to leave it and seek asylum in another country. He is not outside his country owing to a well-founded fear of persecution for a Convention reason. The person is not, within the Convention definition, a refugee.”
And at [25]:
“The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm.”
[3] [2007] HCA 40; (2007) 233 CLR 18; see also SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51 at 55 [14]; [2007] HCA 41.
[4] SZATV v Minister for Immigration and Citizenship [2007] HCA 40; (2007) 233 CLR 18 at 29 [32].
In the present matter the Tribunal concluded at [77] that:
“…having regard to the nature of the action taken by S’s family against her parents, which involved verbal harassment but no serious harm, the Tribunal does not accept that there is a real chance that S’s family would seriously harm the applicant’s parents in the future if they learned that she had returned to India and was living in a different location”
The Court finds however that the question is not “whether the applicant’s family would face serious harm”, but “whether the applicant would face serious harm”.
The Tribunal asked the applicant “whether if she moved somewhere very far from the Punjab, like Kerala, she thought S’s family would find her; the applicant said she didn’t know” (CB p.149 [79]).
The Tribunal explained to the applicant that “the country information suggested that neither political influence nor the reach of hired criminals was likely to extend beyond her local area or at most, her home state” (Ibid [79]).
The Tribunal found that “the applicant has not been explicit about how she and S would be located if they moved interstate within India, instead referring repeatedly to how people could do anything as a result of political connections” (Ibid [81]).
The Tribunal then considered information about political influence over the police force in Kerala (CB p.150 [83]).
The Tribunal found that in the circumstances relocation was reasonable (CB p.154 [98]).
At the hearing before the Court on 22 April 2015, Mr Young of Counsel represented the applicant and Mr McDermott the first respondent.
Mr Young submitted that the applicant is a Sikh who has married a Hindu.
The Tribunal found at [66] that:
“…Having regard to the country information above regarding familial and societal attitudes to inter-religious marriage and the prevalence of “honour killings” for reason of marriages which take place without family approval in India and especially in Punjab, the Tribunal finds there is a real chance that the applicant will be seriously harmed or killed by S’s family or their agents if she returns to India now or in the reasonably foreseeable future…”
Mr Young submitted that the above finding is not limited geographically. Mr Young referred to the applicant’s evidence that “she was sure that he (S’s uncle) would be able to locate [the applicant] anywhere in India” (CB p.149 [78]).
Mr Young submitted that the Tribunal misdirected itself as it never looked at the broad question of, having identified that the applicant faced a real chance of being killed by two individuals, whether (they) could find the applicant somewhere else in India.
Mr Young submitted that the Tribunal had to address the question of ‘whether there is a real chance that S’s relatives would be able to find the applicant in another state’.
Mr Young referred to the finding by the Tribunal at CB p.152 [92] that “if someone is determined to find a person of interest in a different state, they can locate him or her…”
Mr Young submitted that that the question that the Tribunal had to consider is ‘whether there is a safe haven for these two individuals somewhere else in India’? Mr Young submitted that the Tribunal misdirected itself on the first question critical to relocation being whether there is a safe haven within India.
Mr Young referred to the decision in SZSCA (supra) at [23] and the High Court’s tests of “whether a person could have relocated to a place within their own country where he could have no well-founded fear of persecution”, and “where he could reasonably be expected to relocate”.
Mr Young submits that there are two distinct questions – the first being where the applicant could have no well-founded fear of persecution. Mr Young submits that the Tribunal here did not address that question. He submitted that only when that question is answered does the second question of reasonableness in the sense of practicality, arise.
At [25] the High Court decided
“The factum upon which the principle of relocation operates is that there is an area in the visa applicant's country of nationality where he or she may be safe from harm.”
Mr Young submits that the Tribunal did not consider that question. Mr Young submits that the Tribunal here did not address the issue of relocation properly.
Mr Young submits that the Tribunal’s reasoning is irrational when it found that there was not a real chance that the applicant and S could be located.

As stated in Applicants M160/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 195 at [32]:
“… the Full Court has held that want of logic does not constitute an error of law and cannot constitute a ground for judicial review: Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 84 FCR 411, 420-422; NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235 at [22]- [29].”
The Court refers to and adopts the following passages in SZOZF v Minister for Immigration & Anor [2011] FMCA 364 at [31]:
“… as Crennan and Bell JJ in SZMDS make clear, not every lapse in logic will give rise to jurisdictional error.[5] Rather, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s.65, is one at which no rational or logical decision maker could arrive on the same evidence.[6]”
And at [33]:
“Further, the assessment of the applicant’s visa was an issue of fact upon which different minds might reach different conclusions.[7] There is no error in the assessment of such evidence where reasonable minds might come to different conclusions and the weight to be given to this evidence was a matter solely for the Tribunal to determine.[8]”
And at [35]:
“On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal… Accordingly, the applicant’s description of the Tribunal’s reasoning as being “illogical” or “unreasonable” should be viewed as merely an emphatic way of expressing disagreement with it.[9]”
[5]Minister for Immigration and Citizenship v SZMDS & Anor (2010) 266 ALR 367 at [130].
[6] Ibid. [130].
[7] Ibid. at [131].
[8] Minister for Immigration and Citizenship v SZJSS & Ors (2010) 273 ALR 122 at [35].
[9]Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 626 [40] per Gleeson CJ and McHugh J.
In SZDTZ v Minister for Immigration and Citizenship [2007] FCA 1824 Greenwood J decided at [32] that a finding not based on logical grounds will give rise to an error of jurisdiction if there is no evidence to support the finding.
The issue the applicant seeks to agitate is no more than an impermissible attack on the factual finding of the Tribunal. The challenge is no more than an invitation to review the merits. The authorities make clear that the making of findings of fact is uniquely a matter for the decision-maker. In SHJB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 134 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance where his Honour had said at [16]:
“I have considered all of the matters put to me. The relevant principle is clear enough. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal in analysing the factual material before it, the assessment of that material was a matter for the Tribunal, not for this Court. The applicant has asked the Court to undertake a review on the merits of the decision of the Tribunal. The Court has no jurisdiction to do so. As it was put by Justice Kenny in a similar context in Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 719; (1999) 93 FCR 220 at [146]:
A tribunal such as the RRT does not commit an error of law merely because it finds facts wrongly or upon a doubtful basis, or because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999) [1999] HCA 21; 197 CLR 611]...at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 356 per Mason CJ with whom Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Roads Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Multicultural Affairs v Epeabaka [1999] FCA 1; (1999) 160 ALR 543 (FC)...I agree with the remarks of Katz J in Zuway [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391] that a search by the Court for objective cogency in the reasons of the RRT creates a real risk that the Court will substitute its own view of the merits of the case for that of the Tribunal.”
The Court refers to the decision in Minister for Immigration and Citizenship v SZNPG & Anor (2010) 115 ALD 303 at [51]:
“As Crennan and Bell JJ recently observed in Minister for Immigration and Citizenship v SZMDS (2010) 266 ALR 367 ; [2010] HCA 16 at [130], “not every lapse of logic will give rise to jurisdictional error”. No matter how the ground of review is framed, if reasonable minds might differ in the result, the decision cannot be set aside for jurisdictional error as illogical, irrational or unreasonable merely because one conclusion has been preferred to another.”
“Mere faulty reasoning” does not give rise to jurisdictional error: Rawson Finances Pty Ltd v Commissioner of Taxation [2013] FCAFC 26 [85]. As a Full Bench of the High Court recently noted in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [34] “to describe reasoning as irrational or unreasonable may merely be an emphatic way of disagreeing with”. A Court should not “lightly” find that reasoning is irrational or illogical: Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at p.625 [40].
In SZMDS (supra) at [135], Crennan and Bell JJ decided:
“On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent's claims.” (emphasis added)
The Court dismisses the claim that the decision was irrational as there is evidence on which the finding could be based.
Mr McDermott submitted that the Tribunal completed its statutory task in line with the principle in SZSCA. The Court disagrees. The Tribunal did not find that there was a safe haven in India before considering the issue of whether it was reasonably practicable for the applicant to relocate.
That being so, the Tribunal erred in law by failing to address the first question as set out in SZSCA (supra). Those questions had previously been accepted as correct by three judges of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [19] and therefore applied at the time of the Tribunal’s decision in this matter.
There was thereby a failure by the Tribunal to exercise its jurisdiction. On that basis, the Court finds that the applicant is entitled to the relief sought. The Court orders that:
(1)A writ of certiorari issue directed to the Refugee Review Tribunal quashing its decision dated 5 June 2014.
(2)A writ of mandamus issue directed to the Refugee Review Tribunal requiring it to determine according to law the application made to it to review the decision of a delegate of the first respondent dated 25 November 2013.
Mr McDermott submitted that the above ground was not set out in the application and required leave to be granted. However, the Court finds that as the ground is incorporated in ground 1 of the amended application, leave is not necessary.
The above relief having been granted, it is unnecessary for the Court to decide the other issues addressed at the hearing.

I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of Judge F. Turner

Associate:

Date: 22 May 2015