MZANC v Minister for Immigration
[2016] FCCA 344
•18 March 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZANC v MINISTER FOR IMMIGRATION & ANOR | [2016] FCCA 344 |
| Catchwords: MIGRATION – Review of former Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Sri Lanka – applicant believed but Tribunal finding that he could relocate to avoid the feared harm – whether the Tribunal erred in not considering the circumstances of the applicant’s wife considered – no error in circumstances where no relevant information about the applicant’s wife or the marriage was available. |
| AppellantS395/2002 v Minister for Immigration (2003) 216 CLR 473 AZAEH v Minister for Immigration [2015] FCA 414 Htun v Minister for Immigration (2001) 194 ALR 244 Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 Minister for Immigration v SZSCA (2014) 254 CLR 317 Minister for Immigration v Yusuf (2001) 206 CLR 323 MZWDG v Minister for Immigration [2006] FCA 497 MZYPW v Minister for Immigration (2012) 289 ALR 541 MZYQU v Minister for Immigration (2012) 206 FCR 191 MZZQV v Minister for Immigration& Anor [2015] FCA 533 MZYSP v Minister for Immigration & Anor [2012] FMCA 447 SZBJI v Minister for Immigration [2006] FCA 216 |
| Applicant: | MZANC |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | MLG 2281 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 19 February 2016 |
| Date of last submission: | 4 March 2016 |
| Delivered at: | Sydney |
| Delivered on: | 18 March 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr R Clark |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Mr J Kay-Hoyle |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application as amended on 5 February 2016 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
MLG 2281 of 2014
| MZANC |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the former Refugee Review Tribunal, now the Administrative Appeals Tribunal (Tribunal). The Tribunal decision was made on 20 October 2014. The Tribunal affirmed a decision of a delegate of the Minister (Delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant is a male citizen of Sri Lanka.[1] Prior to the applicant’s arrival in Australia, his eldest brother (in 2007) and parents (in 2010) had been granted protection visas in Australia, and now live in Melbourne.[2]
[1] CB 336 at [120].
[2] CB 310 at [21] and [24].
The applicant arrived in Australia as an Irregular Maritime Arrival and was interviewed on 11 May 2012.[3] The applicant lodged his application for the protection visa on 5 July 2012.[4] Following the Delegate’s decision on 23 August 2012, the applicant applied for a review of the Delegate's decision. In a decision dated 17 January 2013, a differently constituted Tribunal affirmed the Delegate’s decision.[5] That decision, following an application for judicial review to this Court, was, by consent, remitted back to the Tribunal for reconsideration on 29 August 2013.[6] Before the newly constituted Tribunal, a registered migration agent and lawyer represented the applicant. The applicant made extensive written submissions in support of his application.[7]
[3] Court Book (CB) 3-21.
[4] CB 34-116.
[5] CB 145-178.
[6] CB 130-131.
[7] CB 203-243 (initial submissions); CB 268-277 (response to Tribunal’s invitation to provide further comments).
The applicant’s case before the Tribunal included claims and evidence that:
a)he had a well-founded fear of persecution in Sri Lanka due to his race, religion, nationality, imputed political opinion, or membership of a particular social group. Specifically, the claims related to his:
i)being a Tamil;
ii)growing up in a region of Sri Lanka associated with the Liberation Tigers of Tamil Eelam (LTTE) and his brother’s involvement with that group;
iii)arrest and torture in Sri Lanka;
iv)being subject to harassment, violence and extortion perpetrated by the Karuna group;
v)being an asylum seeker who is returned to Sri Lanka; and/or
vi)having left Sri Lanka illegally;[8] and
b)there were substantial grounds for believing that as a necessary and foreseeable consequence of his being returned to Sri Lanka he would suffer significant harm for the same reasons as those outlined above in relation to his Convention claims.[9]
[8] CB 336 at [121].
[9] CB 349 at [178].
Relevantly, the applicant gave the following evidence:
a)he entered into an arranged marriage with a woman (ST)[10] and was married on 14 March 2012;[11]
b)he lived in Munaitivu, Batticaloa but had fled from there to Colombo to avoid harm.[12] He stayed in Colombo between 1994 and 1999 due to threats his family had received from the LTTE.[13] He also lived in Colombo between 2000 and 2003 and, after working overseas, between 2009 and 2011;[14]
c)during the periods in which he lived in Colombo, the applicant worked as a jeweller;[15]
d)he left Sri Lanka on 25 March 2012, about a week after getting married.[16] His wife continues to live in Sri Lanka along with his two sisters.[17] After his wedding, his wife remained at home with her parents and he returned to Colombo.[18]
[10] The name has been anonymised.
[11] At [3] of the Statutory Declaration dated 5 July 2012: CB 92; at [61] of the applicant’s written submissions dated 17 October 2013: CB 211.
[12] CB 93 at [8].
[13] CB 206 at [19].
[14] CB 207-211 at [28]-[60].
[15] CB 128; CB 207.
[16] CB 323 at [57].
[17] CB 307 at [14]; CB 319 at [36].
[18] CB 323 at [58]-[59].
The Tribunal raised with the applicant the question of whether it would be reasonable to relocate to Colombo. The applicant stated that anything could happen in Colombo and referred to being imprisoned in 1994. The Tribunal noted with the applicant that the applicant appeared not to have suffered harm in Colombo since 1994. The Tribunal asked the applicant whether there were any other reasons why it would not be reasonable to relocate to Colombo and the applicant stated that he “would be arrested and put in jail…Colonel Karuna is part of the…government and will get information about the applicant’s return after which he would have the applicant arrested and killed”.[19]
[19] CB 329 at [95]-[96].
The applicant gave no direct evidence about his relationship with his wife, although some inferences are available from the Tribunal hearing transcripts. He did not make any claim about his marriage or what had happened to his wife after he left Sri Lanka (save for the fact that she still lived in Batticoloa with her parents). He gave no evidence nor made any claim about the effect, if any, that his return to Sri Lanka would have on his marital relationship.
Tribunal’s findings regarding relocation
The Tribunal accepted that the applicant had worked for many years as a goldsmith in the Eastern Province, as had his father. The Tribunal accepted that the applicant’s father had been subject to multiple extortion demands until he came to Australia, where, as noted above, he was granted a protection visa. The Tribunal accepted that the applicant had been subject to extortion demands from people likely to be part of the Karuna group.[20]
[20] CB 341 at [142].
As a result of these findings, and the country information, the Tribunal accepted that if the applicant were to return to the Eastern Province his background would mean he was likely to be identified as a wealthy Tamil and that there was a real chance he would be subject to serious harm by the Karuna group. Consequently, the Tribunal accepted that there was a real chance that the applicant would suffer serious harm for a Convention reason in the Eastern Province.[21]
[21] CB 341 at [144].
Following this finding, the Tribunal then considered whether the applicant had a well-founded fear of persecution outside the Eastern Province either on the basis of the fear already identified in the Eastern Province, or for other reasons raised by the applicant. The Tribunal rejected each of these claims.[22]
[22] CB 342-348 at [146], [150], [160]-[161], [162]-[163], [174].
Given that the Tribunal had found that the applicant had a well-founded fear of persecution in the Eastern Province but not outside, it was then required to consider whether it was reasonable in the sense of practical for the applicant to relocate outside the Eastern Province. The Tribunal considered the reasonableness of relocation and found:[23]
The applicant has lived and worked for many years in Colombo. He has stated that it has been difficult to find work as a goldsmith in Colombo. However, I find that he is a healthy man who has lived and worked in Colombo for many years, including regularly during the two years before he came to Australia. I note that the applicant has a brother-in-law living in Colombo. I find that the applicant will be able to rely on financial support from his family members in Australia in relocating himself to Colombo. I find that, while it may be difficult to obtain work as a goldsmith in Colombo, the applicant will be able to obtain accommodation and some form of employment in Colombo with the assistance of his family both in Sri Lanka and in Australia.
[23] CB 348 at [175].
As a result of this finding, the Tribunal found that the applicant did not have a well-founded fear of persecution in Sri Lanka and thus Australia did not owe him protection obligations.[24]
[24] CB 348 at [176]-[177].
The judicial review application
These proceedings began with a show cause application filed on 13 November 2014. The applicant now relies upon an amended application filed on 5 February 2016. There is one particularised ground in that application:
1. The Tribunal made an error of law in considering that the applicant did not face a well-founded fear of persecution in Sri Lanka on the basis that he could relocate to [Colombo].
Particulars
a. The Tribunal found that the applicant had a well-founded fear of persecution for a Convention reason in the [Eastern] province of Sri Lanka: Tribunal’s Decision at [144].
b. The Tribunal found that it was reasonable for the applicant to relocate to [Colombo], where he had no well-founded fear of persecution for a Convention reason: Tribunal’s Decision at [175]-[176].
c.The Tribunal, in considering whether it was reasonable for the applicant to relocate to [Colombo], was required to consider whether it was practicable for the applicant to relocate there, having regard to:
i. his particular circumstances;
ii. the circumstances he would face in the place of relocation; and
iii. the impact of that relocation on him: SZATV (2007) 233 CLR 18; SZSRQ [2014] FCCA 2205.
d. The Tribunal failed to consider relevant matters in deciding whether it was reasonable for the applicant to relocate to [Colombo]:
i. the Tribunal found that the applicant’s wife lived in the [Eastern] Province of Sri Lanka: Tribunal’s Decision [14], [27] and [58];
ii. the Tribunal did not consider whether it was reasonable for the applicant to reside in [Colombo] without his wife;
iii. the Tribunal did not consider whether it was possible for the applicant’s wife to relocate with him to [Colombo]; and
iv. The Tribunal did not consider whether the applicant would continue to visit his wife in the [Eastern] Province where it had found he had a well-founded fear of persecution for a Convention reason.
In addition to the court book filed on 4 March 2015, I have before me as evidence the affidavit of Laura Jacobs made on 11 February 2016, to which is annexed a partial transcript of a hearing conducted by the Tribunal on 6 November 2013. The parties agreed that the partial transcript provided was sufficient for the purposes of these proceedings because it included the only material discussion about the issue of relocation. The Tribunal hearing was in two parts on different days. The first part took more than four hours and the second part was about one and a half hours. Only the transcript of the second part has been provided. It occurred to me that, while there was nothing in the first part of the hearing directly relevant to the issue of relocation, there might have been some discussion about the applicant’s marriage that could have had some bearing on the Tribunal’s relocation decision. I invited any further evidence or submissions in relation to the first part of the hearing within two weeks of the trial of this matter. The Minister filed a transcript of the first hearing on 3 March 2016 together with an affidavit by Laura Adina Jacobs made on the same day, which draws attention to some references to the applicant’s wife and their marriage. The applicant filed further submissions on 4 March 2016 in relation to those passages. I have taken that material into account.
Both the Minister and the applicant provided written submissions before the trial and also made helpful oral submissions at the trial through their counsel. I am grateful for the assistance provided by counsels’ submissions.
Consideration
The relocation principle
The “internal relocation principle” derives implicitly from the Convention test as to whether an applicant has a well-founded fear of persecution in their own country. Where there is a well-founded fear in one part of that country, but not in another, then there is no basis to find that one has made out a claim for refugee status, as the test is directed towards a well-founded fear in the country as a whole.[25]
[25] Randhawa v Minister for Immigration (1994) 52 FCR 437 at 440-441.
However, the principle is limited in scope, for it is not enough merely that the relocation to another region be theoretically possible. That relocation must be reasonable in the circumstances. As discussed in Januzi v Secretary of State for Home Department[26] by Lord Bingham at 440:
[26] [2006] 2 AC 426.
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.
…
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. (emphasis added)
In SZATV v Minister for Immigration[27] Gummow, Hayne and Crennan JJ accepted this formulation of the test, stating that such internal relocation must be “reasonable, in the sense of practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”.[28] Their honours went on to say that “[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.” Kirby J found similarly at [79]-[81].
[27] (2007) 233 CLR 18.
[28] at [23].
What is reasonable, in the sense of practical, is explicitly to be considered by reference to the particular circumstances of the applicant in question. Therefore, the matters to be considered will depend on the particular circumstances of the case. As referred to in Randhawa:[29]
the range of realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm A R 7.
[29] at 442-443.
The case there referred to, Jonah, involved an applicant who would have had to relocate to a remote family village where he would be separated from his wife.
In SYLB v Minister for Immigration[30] (SYLB) Branson J explicitly found that personal humanitarian circumstances, including marital status, was a matter to consider in the context of determining whether relocation was reasonable in the circumstances.[31] Such finding has repeatedly been referred to.[32]
[30] [2005] FCA 942 at [22].
[31] at [22].
[32] for recent examples see: MZZQV v Minister for Immigration [2015] FCA 533 (MZZQV), SZSTE v Minister for Immigration [2015] FCCA 178 and SZSRQ v Minister for Immigration [2014] FCCA 2205.
In Minister for Immigration v SZSCA[33] the High Court was concerned with an appellant who was a truck driver and was found to have a well-founded fear of persecution in Afghanistan when driving outside of his home city of Kabul arising from a letter he had received from the Taliban. The Tribunal found, similarly to the relocation principle (in that case the relocation principle was not triggered as the appellant already lived in Kabul), that the appellant did not have a well-founded fear of persecution if he simply remained in Kabul and worked as a jeweller there (as he had done previously) and did not drive trucks outside that city. The majority of the High Court found that the Tribunal had failed to consider the impact of the applicant remaining in Kabul, which may have raised a variety of issues, not least his ability to earn an income to meet his needs and those of his family:[34]
The Tribunal did not address this question. It did not address what was necessary to an enquiry whether it was reasonable to expect the respondent to remain in Kabul and not drive trucks outside it. It made one assumption – that the respondent would be able to work as a jewellery maker in Kabul, as he had formerly done in Jaghori. This assumption does not appear to have been put to the respondent for his comment.
Applicant’s contentions
[33] (2014) 254 CLR 317.
[34] at [31].
Tribunal’s “failure to consider matters relevant to relocation”
The Tribunal found that the applicant was married on 14 March 2012, shortly before he left Sri Lanka on 25 March 2012,[35] and that his wife was living in Munnaitivu in the Eastern Province.[36]
[35] CB 307 at [14].
[36] CB 323 at [56]-[58].
As discussed above, based on existing authority, personal humanitarian circumstances, including an applicant’s marital status, are a relevant matter for the Tribunal to consider when determining whether or not relocation is reasonable, in the sense of practicable. The Tribunal found that the applicant had a well-founded fear of persecution in the Eastern Province but that he could relocate to Colombo. By analogy to SZSCA, therefore, the applicant submits that the Tribunal needed to have at least found as matter of fact that the applicant would not go to the Eastern Province, or alternatively that it would be reasonable for him not to do so, given that it accepted he had a well-founded fear of persecution in that place. However, the applicant contends that, like in SZSCA, it did not consider the crucial impact this would have on him, and on that reasonableness, namely that he would be separated from, and be unable to visit or see his wife, given she lived in a region where he had a well-founded fear of persecution. The Tribunal did not consider whether such separation was reasonable or practicable. Given the “need to consider humanitarian circumstances” such as marital status in determining such reasonableness, the Tribunal failed to consider a crucial matter bearing on the reasonableness of relocation and thereby failed to properly consider the issue of internal relocation according to law. The Tribunal’s consideration of the reasonableness of relocation considered only the economic effect of such relocation on the applicant and his ability to find accommodation. While such factors are undoubtedly relevant considerations to the reasonableness and practicality of relocation, it is clear that, in certain circumstances, they are not the only relevant considerations.
The Tribunal may, had it considered this question and engaged with the applicant in relation to this question, have found as a matter of fact that the applicant’s wife could visit him in Colombo, or move with him to Colombo and this would be a practicable and reasonable outcome. However, the Tribunal did not do so. No questions were asked of the applicant in relation to his wife’s ability to travel to him to Colombo, or to relocate with him. In the applicant’s submission, the extent of the questioning on the issue of the reasonableness of relocation by the Tribunal appeared to show that the applicant “misunderstood the question being asked of him”.
The Tribunal may also have, had it considered the question of the impact on the applicant’s marital status, found that such relocation was reasonable and practicable even if it had the consequence of meaning that the applicant would be separated from his wife for the foreseeable future. Such finding would have arguably been a valid exercise of its consideration of the issue. However, again the Tribunal did not consider the issue, nor make such a finding.
The applicant contends that the Tribunal, in failing to consider such issues, did not adequately consider whether the internal relocation was reasonable and thus its consideration on the issue miscarried.
Issue not expressly raised by applicant
The applicant did not expressly raise before the Tribunal, when asked about the reasonableness of the relocation the impact on him regarding being separated from his wife, that his wife could not relocate, that it was not reasonable for those reasons and so on. However, in the applicant’s submission, it appears that the applicant understood the questioning on the issue as being directed towards whether he had a well-founded fear of persecution in the place in which the Tribunal considered he could relocate, not matters relevant to reasonableness of that relocation.
The Tribunal is duty bound to consider not only matters which are expressly raised by the applicant, but matters which are apparent on the face of the material before the Tribunal.[37] In MZWDG Young J said:[38]
On the authorities, the Tribunal is obliged to consider at least three types of claim: first, those that are explicitly put by the applicant; secondly, those that are implicit in the material before the Tribunal; and thirdly, those that emerge from the Tribunal’s findings or conclusions.
[37] Htun v Minister for Immigration (2001) 194 ALR 244; at [7], [13] and [42]; NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [61]; and MZWDG v Minister for Immigration [2006] FCA 497.
[38] at [39].
Consideration of whether it was reasonable or practicable for the applicant to relocate to a place far away from his wife, in circumstances where it must have been accepted that to visit her would entail travelling to a region in which the applicant had a well-founded fear of persecution is said to have been a matter clearly arising on the material before the Tribunal, and based on its own conclusion regarding the well-founded fear of persecution in the Eastern Region, where the applicant’s wife was based. This was not an obscure issue, or one that one could not expect the Tribunal to know about had it not been expressly raised. The applicant submits that the proposition that a husband and wife might wish or need to live together, or at least in locations where they could visit each other, “goes without saying”. That such an issue might have a bearing upon the reasonableness and practicality of relocation outside of the applicant’s home region where his wife lived, also “goes without saying”. In the applicant’s submission, it is not a matter that need be subject of specific or explicit enunciation.
Further, despite the fact that the applicant did not raise any concerns regarding the reasonableness of relocation to Colombo other than those directed towards persecution, the Tribunal went on to consider the reasonableness of the relocation by reference to the applicant’s ability to subsist in Colombo and find accommodation. No criticism is directed towards to the Tribunal for doing so; it was correct to engage in such consideration, and failure to do so would have provided a separate basis to challenge its consideration of the issue. However, in and of itself this is said to demonstrate the necessity for the Tribunal to consider matters squarely raised on the material before it, even if not expressly raised by the applicant. The economic impact on such relocation was a relevant matter to consider, as was its impact on the applicant by reference to him and his wife. However, only the former was considered, not the latter, and on that basis the Tribunal is said to have fallen into error.
In his supplementary submissions concerning the transcript of the first hearing, the applicant draws attention to the following exchange at lines 1780-1787:
So many people used to come and stand before my wife's home. I am not sure whether the news about my wedding has reached Karuna Group. So because there are many people coming to look for me in my home, the shop and so even my cousin has actually abandoned it and the shop is no more there. I am really afraid that, that something may happen to my wife on account of me. Because Karuna Group is getting all the details and if they want they can do anything. And I very scared on that account. (emphasis added)
The applicant submits that this exchange shows his concern for his wife and he disputes that there was no evidence before the Tribunal about the nature of the relationship.
Minister’s contentions
The applicant’s case rests on a slender factual foundation: essentially, the applicant’s marriage. The context in which the applicant asserted that fact (and the Tribunal made a finding about it) is important.
First, at no stage did the applicant provide any evidence about his relationship with his wife, the circumstances in which he came to marry her or what had happened to her in the intervening period after he left Sri Lanka. His evidence amounted to little more than a statement that he was, in fact, married (with the incidental fact that his wife lived with her parents in Batticaloa).
Secondly, contrary to what is suggested by the applicant, [95] and [96] of the decision suggest that the Tribunal identified on two separate occasions that it considered the applicant may be able to relocate to Colombo. The transcript of the hearing bears this out, confirming that the Tribunal went to some lengths to identify the issue and provide the applicant with an opportunity to comment. There is no evidence before the Court that the interpreting in the hearing was deficient. The applicant was legally represented. In those circumstances, it may be inferred that the applicant gave at most a non-responsive answer rather than a confused one. The applicant was then given an opportunity to make further written submissions including in respect of “relocation in particular”. At no point during the hearing or in the applicant’s extensive written submissions did he mention his wife.
Thirdly, the applicant made a number of claims about what might happen to him if he were returned to Sri Lanka; none of them involved evidence about his wife. In addition, the Court can be satisfied that the Tribunal gave the applicant clear opportunities to identify objections to relocating to Colombo (in the sense discussed in the authorities referred to above).
In these circumstances, the Minister submits that the applicant did not make any identifiable claim about his wife or identify any relevant circumstances concerning her or his relationship with her. Rather, he asserted, as a matter of evidence, that he was married and that his wife lived in Batticoloa. The Tribunal accepted that evidence. No other relevant circumstances were before the Tribunal. The Minister submits that, consistently with the approach mandated by the authorities, the framework of circumstances or objections relevant to relocation did not include any meaningful evidence concerning what may happen to the applicant’s marriage if he were to live in Colombo.
The applicant’s case, in essence, appears to be that the Tribunal was required to investigate that the single piece of evidence (that the applicant was married), make further enquiries about it, and speculate about what impact relocation might have on the applicant’s marital relationship, about which it had no facts other than the existence of the relationship itself and the incidental fact that the applicant’s wife lived with her parents. The Minister submits that such an argument should not be accepted, because:
a)it required the Tribunal to go beyond the nature of the case made by the applicant and speculate about matters not raised;
b)it required the Tribunal to treat a factual matter (or piece of evidence) – the applicant was married - not as a matter of weight but rather as a mandatory relevant consideration where there is no warrant for such an approach.
The Minister submits that, in fact, it is implicit in the Tribunal’s reasons that it considered the mere fact that the applicant was married was not evidence of the practical realities of the applicant’s circumstances, where the applicant provided no further evidence about it (even when invited to do so). Such a conclusion was open to the Tribunal given the claims made by the applicant. In that regard, the absence of any reference to the applicant’s marriage at [175] does not show any error was made. As the High Court has noted, a tribunal’s reasons indicate what the Tribunal considered to be material to the disposition of the case before it.[39] Properly read, [175] merely reflects the fact that the Tribunal did not consider the applicant’s marriage, per se, to be relevant to the question of whether relocation would be a reasonable result. It was an available conclusion at the end of a factual enquiry within the Tribunal’s jurisdiction.
[39] Minister for Immigration v Yusuf (2001) 206 CLR 323.
The Minister further submits that, even if it were to be accepted that the Tribunal made an error in not dealing with the applicant’s marriage then such an error cannot amount to a jurisdictional error. The applicant’s marriage was a factual matter only relevant by reference to the applicant’s circumstances as delineated by the applicant’s claims before the Tribunal. There was no requirement to consider the marriage in such a case. Put slightly differently, based on the way the applicant made his case there was no requirement for the Tribunal to consider the applicant’s marriage, simply by virtue of the fact that he was married. If the Tribunal was in error in not considering the marriage then such an error was within jurisdiction.
The Minister notes that the applicant seeks to suggest that the fact of the marriage constitutes an integer of a claim or a claim in accordance with the well-established principles set out in Htun v Minister for Immigration[40] (Htun) and NABE v Minister for Immigration (No.2)[41] (NABE). The Minister contends that that submission should not be accepted. As Htun and NABE make clear, there is a difference between something that is an integer of a claim or a claim and something that is merely evidence. In the present case, the fact of being married to someone living in the applicant’s home region formed no part of any claim about the applicant’s marriage or what would happen to it were the applicant to move to Colombo (something the applicant must have been aware of after the Tribunal discussed it with him). Nor, indeed, could it be said that any clear identifiable claim arose on the material before the Tribunal or any identifiable objection to relocation. Proof of that proposition is that the Tribunal would not have been in a position to deal with any such claim merely by reference to the fact that the applicant was married; it required what the authorities expressly state to be unnecessary: speculation and hypothesis about what might happen.
[40] (2001) 194 ALR 244.
[41] (2004) 144 FCR 1.
The Minister submits that the framework of the applicant’s case (and the circumstances referable to that case) did not include any meaningful reference to the applicant’s marriage. In that context, it was a factual matter that was not relevant to the factual enquiry on which the Tribunal was engaged. Even if the applicant’s marriage was something relevant to that factual enquiry it was not something that formed part of a mandatory relevant consideration. As such, any error was an error within jurisdiction and not amenable to review.
Resolution
I prefer the submissions of the Minister on the critical issue between the parties, which is more an issue of fact than an issue of law. In short, in my opinion, if the applicant had raised something material about his marriage which bore on the relocation principle, or if something material had clearly arisen on the available information, the Tribunal would, I accept, have been bound to consider that information. However, in this case, I am satisfied that nothing material about the marriage was raised by the applicant and neither did the available information disclose anything bearing upon the Tribunal’s relocation assessment, although, in my opinion the Tribunal could have drawn support for that assessment from the limited information available about the marraige
It is uncontentious that a person is not a refugee if it can be shown that it is “reasonable, in the sense of practicable” for that person to relocate to a region where there is no appreciable risk of persecution.[42]
[42] SZATV v Minister for Immigration (2007) 233 CLR 18 at 23 (SZATV); Randhawa v Minister for Immigration (1994) 52 FCR 437 at 440 (Randhawa); Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 440 (Januzi); Minister for Immigration v SZSCA (2014) 254 CLR 317 at 328 (SZSCA).
The critical issue between the parties in this case is what are the matters to which the Tribunal had to have regard in assessing whether relocation to Colombo in this case was reasonable? In SZATV, the High Court noted that what is “reasonable” depends on the “particular circumstances of the applicant….and the impact upon that person of relocation…”.[43] As the applicant notes, this may encompass a “range of practical realities that may need to be considered…beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality”.[44]
[43] At[ 27].
[44] per Black CJ in Randhawa at 442.
In Randhawa, Black CJ went on to find that, while accepting a decision-maker must give the question of relocation “specific attention…the extent of the decision-maker’s task will be largely determined by the case sought to be made by the applicant”(emphasis added).[45] Whitlam J, agreeing with Black CJ both generally and on this point, emphasised that the decision-maker’s task is largely determined by the “case sought to be made out by the an applicant”.[46] There is nothing in the judgments of the High Court in SZATV or SZSCA that disturbed or took issue with these expressions of principle identified by the Full Court in Randhawa either generally or, specifically, with reference to the need to judge relocation on the facts, as advanced by the applicant. The approach of the Full Court in Randhawa on this point was followed by Tracey and Foster JJ (Moore J agreeing) in SZMCD v Minister for Immigration[47] (SZMCD). Their Honours observed that the test for relocation “depends upon the framework set by the particular objections raised to relocation”.[48] This approach has been followed in numerous other cases, including MZYXP v Minister for Immigration;[49] AZACC v Minister for Immigration;[50] and AZAEH v Minister for Immigration.[51]
[45] at 443. A little later in the judgment, Black CJ, commenting on the nature of the case made by the appellant in that case, noted that “[i]f the appellant had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker…she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India” (at 443).
[46] at 453. Beaumont J did not expressly deal with this point. However, his Honour noted that the correct test for relocation involved asking whether relocation is “in the particular circumstances, an unreasonable option” and it followed that “the question for the delegate was one of fact in that context. In turn, this became a question of proof; that is, had the appellant demonstrated, on the facts, that relocation was unreasonable?” (emphasis added) (at 451).
[47] (2009) 174 FCR 415.
[48] at 439. In the context of that case, Tracey and Foster JJ also noted that the “Tribunal considered relocation in a framework dictated by the evidence and claims advance to it by the appellant. It was not obliged to consider all theoretical possibilities…” (at 438).
[49] (2013) 137 ALD 348 at [79].
[50] [2013] FCA 1448.
[51] [2015] FCA 414.
In that context, the task of the Tribunal is essentially factual. A finding of fact is for the Tribunal and a decision-maker is not required as a separate matter to elaborate upon how relocation could practically occur.[52] In considering relocation, a tribunal is not required to elaborate on “every aspect of its practical application”.[53]
[52] per Emmett J in SZBGC v Minister for Immigration [2005] FCA 1168 at [26].
[53] per Allsop J in SZBJI v Minister for Immigration [2006] FCA 216 at [22].
The fact-specific, and applicant-driven, nature of the enquiry identified above is consistent with other observations about the concept of relocation. As the High Court has made clear in SZATV, the enquiry is predicated upon answering the question of whether the applicant is at risk of “persecution” in accordance with the Convention. It is not concerned with broader questions of living conditions in general (or “quality of life” as it was described in Januzi), or differential living standards or matters extending beyond the grounds of persecution under the Convention.[54] It follows that a decision-maker is not required to adopt some form of fixed shopping list of required personal or family characteristics that is must work through in every case; the statutory task it must address, in context, is whether the applicant is at risk of persecution.[55] There is no statutory list of considerations that must necessarily be taken into account in every case.[56]
[54] per Gummow, Hayne and Crennan JJ in SZATV at 27; per Kirby J in SZFDV v Minister for Immigration (2007) 233 CLR 51 at 60. Note that the observations of Kirby J were made in the context of discussing the need to modify or hide behaviour as examined by the High Court in AppellantS395/2002 v Minister for Immigration (2003) 216 CLR 473.
[55] per Judge Driver in SZSUY v Minister for Immigration & Anor [2014] FCCA 1 at [40]-[43]. Seemingly followed, without apparent disapproval, in MZZQV v Minister for Immigration& Anor [2015] FCA 533, although with a different result on the facts of that case.
[56] per Flick and Jagot JJ in MZYPW v Minister for Immigration (2012) 289 ALR 541 at 545.
It is not incumbent on the Tribunal to make the applicant’s case. It further follows from the principles outlined above that there is no requirement for a decision-maker, in considering questions of relocation, to engage in speculation, consider hypothetical situations or investigate independently matters which might arise.[57]
[57] MZYQU v Minister for Immigration (2012) 206 FCR 191 at [81]; MZYSP v Minister for Immigration & Anor [2012] FMCA 447 at [4]. The latter case was upheld on appeal: MZYSP v Minister for Immigration [2012] FCA 869.
The Tribunal is not required to anticipate concerns or deal with hypothetical issues that may arise from the applicant’s claims in considering the reasonableness of relocation or deal with claims not raised by an applicant.[58]
[58] AZABO v Minister for Immigration & Anor [2011] FMCA 772 at [117]. The decision was upheld on appeal: AZABO v Minister for Immigration (2012) 127 ALD 526. SZSUY at [40]-[45]; MZZQV v Minister for Immigration & Anor [2014] FCCA 1912. The decision was overturned on appeal but not on this point: MZZQV v Minister for Immigration [2015] FCA 533.
Two further points should be noted. First, it follows from these principles that where an error is alleged to have been made by the Tribunal in an enquiry about relocation, consideration may need to be given to the question of whether the error is merely a factual one; if such a factual error is made, then it is not amenable to judicial review.[59]
[59] per Sackville J in SZFCB v Minister for Immigration [2005] FCA 961 at [20]-[24]. It should also be noted that in SZFCB, Sackville J found that the “appellant did not suggest that there would be any difficulty about his family accompanying him”, a situation similar to the present case where the applicant made no suggestion about his wife or any difficulty that may arise.
Secondly, the applicant appears at times to suggest that the Tribunal fell into error by failing to take into account a relevant consideration: being, the “humanitarian” aspects of the applicant’s claim and, specifically, the applicant’s marriage. As the above discussion makes clear, there is no fixed list of relevant considerations, other than the statutory task which the Tribunal was required to perform. There is nothing to suggest that the statutory task, properly construed, dictated that the applicant’s marriage, as a humanitarian consideration, was in the requisite sense mandatory, as discussed in Minister for Aboriginal Affairs v Peko-Wallsend.[60] Any “relevance” was, as outlined above, referable to the way in which the applicant made his case and the objections that were raised to relocation. As such, its relevance was dictated by the factual nature of the enquiry in the context of the claims made by the applicant.
[60] (1986) 162 CLR 24.
The applicant places significant reliance on the decision of Branson J in SYLB. That reliance is, in my opinion, misplaced. Her Honour was aware of, and relied upon, the judgment of the Full Court in Randhawa. Her Honour was bound by the observations of the Full Court and it would have been necessary for her Honour to identify on what basis she proposed to depart from the decision in Randhawa. It may therefore be accepted that her Honour was aware of the principles outlined by the Full Court and her Honour’s judgment should not, in the absence of express words to the contrary, be taken to be anything other than consistent with those principles. Given the factual circumstances identified by her Honour, the most that one could properly say about SYLB is that it is authority for the rather more limited proposition that, in appropriate circumstances (relevantly assessed by the claims put forward by the applicant), it may be necessary to consider certain humanitarian aspects of an applicant’s claim, such as family ties. To suggest that it stands for any broader proposition that humanitarian considerations must always be considered (whether or not raised by an applicant) would be to render the decision at variance with well-established authority of long standing. I am unwilling to so find.
What is truly remarkable in this case is what little information the applicant provided about his wife and his marriage. The essential details are recited by the Tribunal in two sentences at [14] of its reasons.[61] In a submission to the Tribunal made by the applicant’s lawyers on 17 October 2013 at [61][62] it is stated that the marriage was an “arranged marriage”. I infer that that means that the marriage was arranged between the families of the bride and groom. The applicant returned to Colombo without his wife almost immediately after the marriage and left Sri Lanka by boat about one week after the marriage. He left without his wife, who remained with her family in the eastern province. There is nothing to indicate that the applicant discussed his departure plans with his wife or even that she was aware of them. It appears that the applicant has not seen his wife since his departure from Sri Lanka.
[61] CB 307.
[62] CB 211.
The applicant had claimed that the impetus for his departure from Sri Lanka was a time limited extortion demand made by someone from the Karuna group in January 2012, which threatened harm if the demand was not met within one month. At [129]-[130][63] of its reasons the Tribunal rejected that claim as lacking credibility. The Tribunal noted that the applicant did not meet the extortion demand within the one month period and nothing happened. He returned to the eastern province to marry his wife a month later in March 2012 and nothing happened. At [130] the Tribunal stated:[64]
In light of my findings that the applicant and his witnesses have deliberately exaggerated the targeting of the applicant by members of the Karuna group, I do not accept that members of the Karuna group have acted on any of the threats they have made by telephone to the applicant in February 2010, June 2010 and in January 2012, either by assaulting the applicant in February 2011 or harassing him or any members of his family at any other time after the departure of his parents from Sri Lanka. I do not accept that members of the Karuna group have been going to the applicant’s wife’s house or to the shop at his family home in Munnaitivu asking for him.
[63] CB 338.
[64] CB 338.
It follows that, while the applicant is correct in submitting that he expressed some concern about his wife’s welfare at the first hearing, the Tribunal rejected the factual basis for that expressed concern. This also undermined the applicant’s credibility in relation to his departure from Sri Lanka, because the Tribunal found that the threats which were said to have stimulated the applicant to depart were not made.
Having rejected the applicant’s proffered reason for his departure from Sri Lanka, there was no alternative explanation available to the Tribunal for that departure at that time. The Tribunal might have asked the applicant why he chose to abandon his wife in Sri Lanka and leave the country only a week after his marriage. The Tribunal might have asked if the applicant had discussed his plans with his wife and, if so, what she thought about them. The Tribunal might have asked whether the applicant missed his wife and wanted to be reunited with her. None of those questions were asked. Neither did the applicant or his representatives offer any information bearing upon those questions. In the circumstances, it is an open question whether the applicant, if he returns to Sri Lanka, would want to live with his wife and, if so, where. In the absence of any information about the nature and state of the marriage, other than the simple fact that it was an arranged marriage and the applicant left his wife immediately after it, no assumption could be made by the Tribunal that the applicant would want to live with his wife in Colombo or anywhere else. Any exploration by the Tribunal of that issue in its reasons would have been speculative, subject to my following observations.
In my opinion, the transcript provided of the first part of the Tribunal hearing further weakens the applicant’s position. At lines 1336-1349 the applicant responded to questions about the circumstances of his marriage by saying that the reason for his marriage was advice from “everyone” that he should marry because as a married man he would be left alone by the Karuna group. At line 1504 the applicant said that he got married “in a hurry” and returned to Columbo. At lines 1555-1569 the applicant told the Tribunal that he did not live with his wife or go anywhere with her other than to Columbo. These responses suggest a superficial relationship that was contracted as a sort of insurance policy for the applicant. The Tribunal did not make any use of those statements by the applicant in its reasons but in my opinion it could have. If it had done so, the Tribunal’s relocation finding would, in my opinion, have been reinforced.
I conclude that the Tribunal did not fall into error by failing to consider the circumstances of the applicant’s wife in relation to the postulated relocation of the applicant to Colombo.
Conclusion
The decision of the Tribunal is free from jurisdictional error and is therefore a privative clause decision. The application must be dismissed and I will so order.
I will hear the parties as to costs.
I certify that the preceding sixty-three (63) paragraphs are a true copy of the reasons for judgment of Judge Driver
Date: 18 March 2016
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