MZYEZ v Minister For Immigration & Anor (No.2)
[2010] FMCA 752
•12 October 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZYEZ v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2010] FMCA 752 |
| MIGRATION – Relocation – tests for. NEW MATERIAL – Applicant limited to material put before the Tribunal. |
| Migration Act 1958 (Cth), ss.91R, 424A Federal Magistrates Court Rules 2001, r.13.03(1)(c) |
| Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 MZXHY v Minister for Immigration and Citizenship[2007] FCA 622 MZYIA v Minister for Immigration & Anor [2010] FMCA 734 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249 Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 SZJMG v Minister for Immigration and Citizenship & Anor [2008] FCA 1145 SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46 Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 |
| Applicant: | MZYEZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG725 of 2009 |
| Judgment of: | Turner FM |
| Hearing date: | 16 September 2010 |
| Date of Last Submission: | 16 September 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 12 October 2010 |
REPRESENTATION
| The Applicant appeared In Person with the assistance of a Punjabi interpreter |
| Counsel for the First Respondent: | Mr Knowles |
| Solicitors for the First Respondent: | DLA Phillips Fox |
ORDERS
The application for reinstatement filed 30 November 2009 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG725 of 2009
| MZYEZ |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
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 20 May 2009.
That decision affirmed the decision of a delegate of the Minister not to grant the applicant a Protection (Class XA) visa.
The applicant filed his application for judicial review on 12 June 2009 and an amended application on 23 September 2009.
The grounds stated in the amended application are as follows:
(1)The tribunal has wrongly applies the law to the facts as found in relation to the seriousness of harm that constitutes persecution as a member of a particular social group and due to his political opinion persecution the applicant claims
Particulars: Section 91 R (1) (b) & (c) of the Act requires the persecution to be of serious harm and systematic and discriminatory.
The tribunal failed for not providing more opportunities to the applicant and therefore generalize the applicants claim and therefore failed to apply correct test in accordence with section 424A (1) of the Migration Act. Ref. SAAP Vs Minister for Immigration and Multicultural Affairs. HCA
(2)There was certain informations used by the tribunal without providing an opportunity to respond. The adverse informations used by the tribunal was not given by the applicant for the purpose of review. This information was given for protection visa claim purpose to the delegate in deciding protection visa. The tribunal did not disclose the information in accordence with S 424A (1) of the migration act.
(3)The tribunal has importantly dealt with the aspect of the applicant’s claim relating to state tolerance and complicity of the applicants religion and membership of a particular social group and as result of all he faced financial hardship, to whom the australia has protection obligation as a member of such group. and therefore the tribunal’s decision was involved jurisdictional error and failure of jurisdiction or mis application of law and procedure. The tribunal conclude that the applicant can relocate in other parts of India. And therefore did not apply correct test of relocation principles. The applicant is currently residing in Australia and the Australia has protection obligation under the UN convention and therefore relocation principles is not the correct test by the tribunal. therefore mis applying the law is in fact failure of the tribunals jurisdiction. The matter should be remitted to the tribunal for further determination and to decide in accoudence with the law and procedures.
The application came on for hearing on 30 November 2009. The applicant did not appear before the Court and the application was dismissed pursuant to r.13.03(1)(c) of the Federal Magistrates Court Rules 2001.
The applicant filed an application in a case on 30 November 2009 seeking that his case be reinstated for hearing. The application for reinstatement was heard and dismissed on 27 January 2010.
The applicant lodged an appeal to the Federal Court. On 27 May 2010 Justice Ryan upheld the appeal and remitted the application for reinstatement to the Court to be heard and determined according to law.
Applying the decision of Justice Ryan, the Court proceeded to hear the application for judicial review on 16 September 2010.
The Court advised the applicant that it could not take into account additional material that was not placed before the Tribunal. SZJMG v Minister for Immigration and Citizenship & Anor [2008] FCA 1145, MZXHY v Minister for Immigration and Citizenship[2007] FCA 622 and Ozberk v Minister for Immigration and Multicultural Affairs (1998) 79 FCR 249. The material was a plea by the applicant’s mother that he be able to stay in Australia.
The Court invited the applicant to make submissions in support of his application. He submitted that the Tribunal did not hear him properly about relocation. He conceded that the Tribunal had not prevented him from making submissions, but complained that the Tribunal should not have found that he could relocate.
At the end of the hearing counsel for the Minister stated that he would endeavour to find authorities in support of his submissions that the exception in s.424A(3)(ba) related to the decision of the delegate. Those authorities were provided and supplied to the applicant for him to make written submissions about them. No such submissions were received from the applicant.
Ground One
This ground complains that the seriousness of the harm alleged to have been suffered by the applicant amounted to persecution within s.91R of the Migration Act 1958 (the “Act”):
i)Due to being a member of a particular social group, and
ii)Due to his political opinion.
The Tribunal made a finding of fact that the harm the applicant fears is not for a reason including membership of a particular social group (Court Book “CB” 98 [65]).
That finding of fact is not amenable to review.
In NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10, the Full Court of the Federal Court decided at [10] as follows:
“In their written submissions, the appellants took exception to a number of findings of the Tribunal. In many cases, those exceptions were purely on the basis that the appellants disagree with the findings. In effect, the appellants sought to have the Court take a different view of various issues of fact from that taken by the Tribunal. To engage in fact-finding about the merits of the appellants’ case is no part of the function of the Court, whether at first instance or on appeal, in dealing with an application for relief under s.39B of the Judiciary Act. As Stone J said, Plaintiff S157 establishes that it is necessary for the appellants to show jurisdictional error on the part of the Tribunal, if they are to succeed. Whatever be the boundaries of jurisdictional error, they do not comprehend errors of fact as to merits of the case put to the Tribunal”.
As stated in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 at [7]: “A decision-maker does not have to have rebutting evidence available before he or she can lawfully hold that a particular factual assertion by an applicant is not made out”.
Chen Xin He v Minister for Immigration and Ethnic Affairs [1995] FCA 1682 (Federal Court of Australia, RD Nicholson J, 23 November 1995, unreported) at [24]:
“It is not the case, as the submissions for the applicant appear to assume, that the evidence of the applicant should have been believed by the Tribunal unless specifically disproved by the objective evidence before the Tribunal. Rather it was for the Tribunal to decide what facts it found on a consideration of all the evidence, subjective and objective. This required the Tribunal not only to consider inconsistencies but also to determine what evidence it found credible”.
As stated in Tefonu Pty Limited v Insurance and Superannuation Commissioner (1993) 44 FCR 361 per Beazley J at [54]:
“The weight which is to be given to a relevant factor is a matter for the Tribunal, unless it can be said that the Tribunal’s decision is manifestly unreasonable. (Minister for Aboriginal Affairs and Anor. v. Peko-Wallsend Limited and Ors (1985-1986) 162 CLR 24 at 41; Associated Provincial Picture Houses, Limited v. Wednesbury Corporation (1948) 1 KB 223 at 230, 233-234)”.
The decision must be so unreasonable “that no reasonable body could have come to it”: Ibid at [41].
The Court does not make that finding in this case.
As stated by the Full Court of the Federal Court in Minister for Immigration and Citizenship v Applicant A125 of 2003 [2007] FCAFC 162 at [95]: “Plainly, the weight to be accorded to the applicant’s evidence was a matter for the RRT. It is not a matter for this Court”.
The Court refers to the decision of Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [26] as follows:
“Decisions of the Tribunal are privative clause decisions and as such are not open to review on the facts: S157/2002 v Commonwealth (2003) 211 CLR 476. As is clear from such cases as Attorney-General (NSW) v Quin (1990) 170 CLR 1 and NAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 76 errors of fact do not give rise to jurisdictional errors”.
A wrong finding of fact is not jurisdictional error. Attorney General for the State of New South Wales v Quin (1990) 170 CLR 1 at 35-36 per Brennan J.
“Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment”:Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35.
The Court refers to the following passages in Attorney General for the State of NSW v Quin (1990) 170 CLR 1 at 35:
“The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone.
The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.
There is one limitation, “Wednesbury unreasonableness” (the nomenclature comes from Associated Provincial Picture Houses Ltd v Wednesbury Corporation), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottinghamshire County Council v Secretary of State for the Environment. Acting on the implied intention of the legislature that a power be exercised reasonably, the court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined”.
The Court does not find the decision to be so unreasonable that no repository of the power could have taken it.
As stated by Collier J in SZINP v Minister for Immigration and Citizenship [2007] FCA 1747 at [29]:
“if the Tribunal made an error of fact, it is not a jurisdictional error if there is some evidence upon which the finding of fact could be made: Epenisa v Minister for Immigration and Multicultural Affairs [2007] FCA 80 at [36], Abebe v Commonwealth (1999) 197 CLR 510”.
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 SHUB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 137 FCR 43, the Full Court at [12] quoted a passage from the decision of Selway J at first instance, where His Honour had said:
“16 I have considered all of the matters put to me. The relevant principle is clear. Notwithstanding whatever concerns I may have about the reasoning of the Tribunal is analysing the factual material before it, the assessments of the material was a matter for the Tribunal, not for this Court. The appellant 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) 93 FCR 220 at [146]:
“A tribunal such as the RRT does not commit an error of law merely because it adopts unsound or questionable reasoning. See Minister for Immigration and Multicultural Affairs v Eshetu [(1999 197 CLR 611]…at paras 40, 44-45 per Gleeson CJ and McHugh J, 138 per Gummow J and cf para 159 per Hayne; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356 per Mason CJ with Brennan J at 365, Deane J at 369 and Toohey and Gaudron JJ at 387 agreed; Road Corporation v Dacakis [1995] 2 VR 508 at 517-520; Minister for Immigration and Affairs v Epeabaka (1999) 160 ALR 543 (FC)…agree with the remarks of Katz J in [Zuway v Minister for Immigration and Multicultural Affairs 160 ALR 391 at 399] 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 Tribunal found that the applicant has in the past been subject to serious harm for a Convention reason as claimed (CB 98.10). That reason is that “he fears persecution as a result of his political opinion namely as a result of his involvement with the INC in Dhaliwal in the Punjab” (CB 98 [66]).
The Tribunal then considered whether the applicant can relocate within India? (CB 99.1).
The Tribunal referred to the decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 as follows:
In Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (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, 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.
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.
Justices Beaumont and Whitlam agreed with Black CJ.
The Tribunal stated that:
If it is not reasonable for a person who has a well founded fear in part of a country to relocate to another part, then the person’s fear of persecution in relation to the country as a whole is well founded (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. (CB 99)
The decision of the High Court in SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 does not detract from these principles. Gummow, Hayne and Crennan JJ stated at [14] that:
“it maybe reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of occurrence of the feared persecution”.
The Tribunal stated that:
What is reasonable will depend on the circumstances in the individual case. It may often be necessary to have regard to a broad range of issues in determining whether an applicant has genuine access to meaningful protection in their country of origin. (CB 99.6)
The Tribunal has considered whether the feared persecution is localized and if so whether it would be reasonable to expect the applicant to seek refuge in another part of India. The law in India provides for freedom of movement and the government generally respects this practice (see US Department of State 2008 Country Reports on Human Rights Practices – India). (CB 99.8)
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 an area outside the Punjab for the reasons outlined below.
The applicant claimed that he would be persecuted by SAD/BJP members wherever he went in India. The Tribunal considers that it is implausible that the people who attacked him in Gurdaspur would pursue him to other areas of India including Delhi. Whilst the Tribunal accepts that the applicant was involved politically with the INC it finds that this involvement was at a relatively low level and therefore the Tribunal does not accept that his political opponents would pursue him outside the Punjab. Accordingly the Tribunal is satisfied that by relocating outside of the Punjab the applicant can avoid the persons he fears there and it finds that if he requires protection after relocating he will have access to a reasonable level of protection provided by the State in India.
The Tribunal therefore considered the claim based on the applicant’s political opinion.
The Tribunal continued:
The Tribunal has considered the applicant’s individual circumstances and whether it is reasonable for him to relocate within India. The Tribunal finds that the applicant is 30 years old, unmarried and has no children. Relocation to another part of India would not have the effect of uprooting any other family members. Furthermore the applicant is of a mature age and it would not be unreasonable for him to live away from his mother and siblings. The Tribunal notes in relation to this point that if the applicant were to remain in Australia he would also be living away from his family. The applicant is educated and has worked as a Laboratory Technician for several years and speaks Hindi and a little English. The Tribunal is satisfied that the applicant has the skills to be able to be economically viable in another area of India such as Delhi and to relocate successfully. (CB 100 [80])
In relation to the fact that the applicant is a Christian, the Tribunal also finds that it would be reasonable for the applicant to relocate to one of the several regions in India which have large Christian populations (see The US Department of State, International Religious Freedom Report 2008 above).
The Tribunal finds that the applicant’s difficulties in India are confined to the area where he previously lived and he can avoid those difficulties by living elsewhere. On the information he has provided regarding his background and circumstances, the Tribunal is satisfied that relocation for the applicant is reasonable and that he can avoid the harm he anticipates in the Punjab by relocating within India. The Tribunal therefore finds that it would be reasonable for the applicant to relocate to a region in India outside of the Punjab. Accordingly the Tribunal finds that the applicant would be able to safely relocate to one of these areas upon his return to India and that it would be reasonable for him to do so in the circumstances.
As the Tribunal has found that the applicant would be reasonably able to relocate to another area of India, the Tribunal is not satisfied, on the evidence before it, that the applicant has a
well-founded fear of persecution in relation to India as whole. (CB 99.6 – 100.7)
All of the above findings of fact were open to the Tribunal on the material before it and are not amenable to review (authorities supra).
The question of “whether the seriousness of the harm amounted to persecution within s.91R?” was therefore not relevant as the ability to relocate meant that the applicant did not have a well-founded fear of persecution in relation to India as a whole.
Ground one then alleges a denial of the opportunity to put the applicant’s claims and a breach of s.424A.
The applicant appeared before the Tribunal on 22 April 2009 to give evidence and present arguments with the assistance of an interpreter (CB 91.5). The evidence and submissions of the applicant are set out from CB 91.5 – 94.2. The Tribunal accepted the applicant’s claims
(CB 97 – 100). It has not been established that the applicant was denied adequate opportunity to put his claims. The applicant conceded before the Court that the Tribunal had not prevented him from putting his case (supra). That claim is dismissed.
The Court accepts the submissions for the first respondent that s.424A applies only to information that forms the reason or part of the reason for affirming the decision that is under review.
In this case, the Tribunal did not rely on information that engaged s.424A. The Tribunal affirmed the decision of the delegate because it was satisfied that the applicant could relocate to another part of India.
Insofar as the Tribunal relied on the applicant’s own evidence and country information they are subject to statutory exceptions in s.424A(3). A breach of s.424A has not been established.
Ground one is dismissed.
Ground Two
This ground alleges that the information given by the applicant, and relied on by the Tribunal was given for the purpose of his protection visa application and “not for the purpose of review.” Counsel for the applicant provided authorities in support of that proposition which were then sent to the applicant for submissions. The applicant has not made any submissions. The Court has held that such information is covered by the exception in s.424A(3)(ba) MZYIA v Minister for Immigration & Anor [2010] FMCA 734. The Court applies that decision here which refers to the decisions on the issue supplied by Counsel in this matter.
The reason for affirming the decision of the delegate was that the applicant could relocate within India. The relevant information given by the applicant was not information that was the reason or part of the reason for affirming the delegate’s decision (supra). It was therefore not “information” covered by s.424A.
Ground two is dismissed.
Ground Three
Ground three claims that the Tribunal has (sic “has not”) dealt with the aspects of the applicant’s claims relating to “state tolerance and complicity of the applicant’s religion or social group” and “as a result of all he faced financial hardship.” The Court asked the applicant whether the word “not” was intended to be included in this ground as shown above and he agreed that it should (Transcript “T” p.21, l.5).
The Tribunal dealt with the applicant’s claims as to religion at CB 97.7 and 98.1 and found that the harm he fears is not for reason of his religion (CB 98.2). That finding of fact was open to the Tribunal as is not amenable to review.
The Tribunal dealt with the claim as to state tolerance at CB 97.10 and at (CB 100.1) found that “if he requires protection after relocating he will have access to a reasonable level of protection provided by the State in India” (CB 101). That finding of fact is not amenable to review.
The Tribunal found that the harm the applicant feared was not for reason of being a member of a particular social group (CB 98.2).
The Tribunal found after considering the applicant’s individual circumstances (CB 100.1) that it would be “economically viable” for the applicant to relocate (CB 100.3).
Even if it is found that the above claims were not adequately dealt with by the Tribunal there were independent and unimpeachable bases for the decision (being the ability to relocate and the availability of State protection) and the Court would not remit the matter for reconsideration.
Where there is an independent and unimpeachable basis for the decision it is appropriate not to remit the matter for reconsideration, because of an error elsewhere. This is the effect of the decision VBAP of 2002 v Minister for Immigration Multicultural and Indigenous Affairs [2005] FCA 965 at [33].
The Court refers also to the decision of the High Court in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26 at [29]
“The present is a case in which no useful result could ensue from the grant of the relief desired by the appellants. This is so because, even if the appellants be correct as to the proper operation of s424A, they cannot overcome the Tribunal's finding that their claims lacked the requisite Convention nexus. The appellants' case, like Mobil Oil Canada Ltd v Canada-Newfoundland Offshore Petroleum Board, cited in Aala, was one in which "irrespective of any question of procedural fairness or individual merits, the decision-maker was bound by the governing statute to refuse”. [21]
“[21] Re Refugee Revue Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 at 109 [58].”
As stated by Kirby J in SZBYR v Minister for Immigration and Citizenship [2007] 235 ALR 609 at [88]:
In effect, the discretion allows the reviewing court to say: The case is clear. A sound basis for the challenged decision has been established. Even if a postulated error has occurred in complying with s 424A and could be proved, any such error is immaterial because it could not undermine the essential legal basis that sustains the decision. In that event, to divert the court’s time and resources into examining a supposed technical breach is not a proper use of its energies. Nor is it required by the justice of the case
When such conclusions are reached, the reviewing court is entitled to, and should, reject the application in the exercise of its discretion. It should leave analysis of suggested technical infractions to a case where the result of such analysis might influence the outcome. This was not such a case.
Ground three continues by asserting that the Tribunal did not apply the “correct test of relocation principles.”
The Tribunal applied the principles stated in Randhawa supra. It has not been established that those principles are incorrect.
The first respondent referred to the decision in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at [96] per Justice Kirby as to the acceptability of taking the possibility of internal relocation into account in assessing a claim for refugee status, and to the decision in SZFDV v Minister for Immigration and Citizenship (2007) 233 CLR 51 at [55] per Justices Gummow, Hayne and Crennan to the same effect at [14]. The Court applies those decisions.
As decided by the Full Court in SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46:
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] HCA 40; (2007) 233 CLR 18 at [24]; and SZFDV v Minister for Immigration and Citizenship [2007] HCA 41; (2007) 233 CLR 51). The answer to that question in turn depends upon the framework set by the particular objections raised to relocation: Randhawa [1994] FCA 1253; 52 FCR 437 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.
Ground three is dismissed.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Act, there would be no jurisdiction for this Court to interfere.
The application and amended application would be dismissed
The application for reinstatement is dismissed.
I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate:
Date: 12 October 2010
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