MZYZS v Minister for Immigration - [2012] FMCA 1149

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MZYZS v MINISTER FOR IMMIGRATION & ANOR

[2012] FMCA 1149

MIGRATION – Refugee Review Tribunal – relocation – whether the tribunal applied the wrong test – whether the tribunal’s decision was illogical or irrational – whether the tribunal complied with s.424A, s.424AA, or s.425.

Migration Act 1958 ss.424A, 424AA, 425

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 84 ALJR 369; (2010) 266 ALR 367; [2010] HCA 16
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 97 ALD 1; (2007) 237 ALR 634; [2007] ALMD 6400; [2007] HCA 40
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 93 ALD 300; (2006) 231 ALR 592; [2006] HCA 63
SZFUJ & Ors v Minister for Immigration & Anor [2006] FMCA 1159
SZLKN v Minister for Immigration & Anor [2008] FMCA 581

Applicant:

MZYZS

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File number:

MLG 901 of 2012

Judgment of:

Riley FM

Hearing date:

28 November 2012

Date of last submission:

28 November 2012

Delivered at:

Melbourne

Delivered on:

4 December 2012

REPRESENTATION

Counsel for the Applicant:

Richard Knowles

Solicitors for the Applicant:

Victoria Legal Aid

Counsel for the First Respondent:

Warren S. Mosley

Solicitors for the First Respondent:

Sparke Helmore

Counsel for the Second Respondent:

No appearance

Solicitors for the Second Respondent:

Sparke Helmore

ORDERS

There be an order in the nature of certiorari bringing in to court and quashing the decision of the second respondent in matter 1107772 made on 28 June 2012.
There be an order in the nature of mandamus requiring the second respondent to rehear and determine, according to law, the applicant’s application for review of the decision of the delegate of the first respondent that was made on 5 July 2011.
The first respondent pay the applicant’s costs fixed in the sum of $6,471.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 901 of 2012

MZYZS

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for review of a decision of the Refugee Review Tribunal. The applicant is a citizen of Pakistan. He claimed to fear persecution on the grounds of religion, ethnicity, membership of a particular social group and political opinion.
The tribunal accepted that the applicant would face a real chance of persecution in Pakistan by reason of his Shia religion. The tribunal did not accept that the applicant faced a real chance persecution on any of the other grounds he had nominated. The tribunal considered that the applicant could relocate to a city in Pakistan called Mulan.
The grounds of review in this case all concern alleged errors in the relocation finding.

Ground 1

The first ground of review in the application filed on 26 July 2012 and amended on 9 November 2012 is:
The Tribunal’s decision dated 28 June 2012 (the “Tribunal’s decision”) is affected by jurisdictional error because the Tribunal misconstrued or misapplied the relevant legal test.
Particulars
In making its decision, the Tribunal was obliged to consider whether or not the applicant was a person to whom Australia has protection obligations under the Refugees Convention (together with the Refugees Protocol) (the “Convention”); ss 36, 65 and 415 of the Act.
In doing so, the Tribunal had regard to the applicant’s ability to relocate within his country of nationality, Pakistan, to avoid persecution there: see paragraphs 163 to 173 of the Tribunal’s decision.
The Tribunal relevantly concluded that “it would not be unreasonable to expect the … applicant to relocate to Multan”: see paragraph 173 of the Tribunal’s decision.
In doing so, the Tribunal misconstrued or misapplied established legal principles relating to the assessment of refugee status under the Convention and the Act.
The applicant argued that the tribunal misunderstood and misapplied the relevant test. The applicant said that the tribunal proceeded on the basis that whether it was reasonable for the applicant to relocate was the same question as whether it was not unreasonable for the applicant to relocate. The applicant argued that the question of whether it was not unreasonable for the applicant to relocate imposed a more stringent test than the question of whether it was reasonable for the applicant to relocate.
The applicant argued that the question of whether a particular outcome was reasonable or unreasonable was not a binary matter or an either or matter but a matter of degree, with some outcomes being reasonable, some outcomes being unreasonable and some outcomes being somewhere in between. So, it was argued, an outcome being not unreasonable did not necessarily mean that it was reasonable.
The law relating to relocation was explained by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; (2007) 81 ALJR 1659; (2007) 97 ALD 1; (2007) 237 ALR 634; [2007] ALMD 6400; [2007] HCA 40 at [23] and [24]. Those paragraphs are as follows:
23.The Minister framed the issue, for a situation such as that presented by this appeal, as being whether it 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. This formulation does not suffer from the defects urged by the appellant. It does not turn upon a “hypothetical assumption”, nor does it prevent account being taken of the presence of a subjective fear of persecution, nor does it treat the presence of a “safe area” within the country of nationality as determinative of the existence of a well-founded fear of persecution.
24.However, that does not mean that, without more, the formulation by the Minister is sufficient and satisfactory. What 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.
The first respondent argued, and the applicant accepted, that the Tribunal set out the correct test in the first sentence of paragraph 172 of its reasons. That sentence is as follows:
It is widely accepted that a person will not be excluded from refugee status merely because he or she 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 or her to do so.
The first respondent also argued that the point argued by the applicant in this case had been rejected by Lloyd-Jones FM in SZFUJ & Ors v Minister for Immigration & Anor [2006] FMCA 1159 at [13] to [14]. Those paragraphs are as follows:
13.The Tribunal dealt with the issue of relocation and made the following finding:
The Tribunal is of the view that their troubles will cease if they live anywhere other than in the immediate vicinity of their families. The applicants speak Hindi, a language widely spoken in India. The applicant husband has been able to work consistently, saving the fares for all his family since they made the decision in mid-2002 to leave India. It is not unreasonable that the family relocate to another part of India. Indeed, the applicant husband agreed that they could settle in somewhere like Delhi, but feared that the faimilies (sic) might find their address and kill them. This appears to be an irrational claim … (CB 111.5) (emphasis added)
Ms Henderson submits that this passage shows that the Tribunal turned its mind to the relevant issues. Ms Henderson submits that Mr Kumar’s contention — that the Tribunal failed to consider relevant factors — is no more than an attempt to have the court review the factual conclusions of the Tribunal. Ms Henderson drew the court’s attention to the passage from the Tribunal decision above and its use of the expression “not unreasonable”, while the term “reasonable” was used in Randhawa v Minister for Immigration. The difference in language does not indicate error. Justice Branson (with North J agreeing) said in NAIZ v Minister for Immigration at [22]:
I do not accept the applicant’s submission that there was no probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate within Fiji.[emphasis added]
In Minister for Health v Thomson (1985) 8 FCR 213 the Full Court of the Federal Court held that the Minister for Health did not err by requesting a committee to investigate whether certain medical services were reasonably necessary for the adequate medical care of a doctor’s patients, even though the statutory test was whether the services were not reasonably necessary.
14.I agree with the submissions of Ms Henderson that this ground cannot be sustained.
The applicant argued that the court should not follow SZFUJ on the basis that it was plainly wrong. The applicant argued that SZFUJ was based on the decision of the Full Federal Court in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37. The applicant argued that NAIZ was distinguishable, the relevant passage was obiter and the point was per incuriam, in the sense that the argument put in the present case had not been made to the Full Federal Court.
The applicant's argument that the point was obiter and that the case was distinguishable was based on only the first sentence of paragraph 22 of NAIZ. That sentence is as follows:
I do not accept the appellant’s submission that there was no probative evidence on which the Tribunal could conclude that it would not be unreasonable for the appellant to relocate within Fiji.
However, in paragraph 23 of NAIZ, Branson J said the following:
For the above reasons, in my view, the Tribunal’s reasons for decision reveal that it misconceived the elements of the test for determining whether the appellant is a person in respect of whom Australia owes protection obligations under the Convention within the meaning of s 36 of the Act. The Tribunal appreciated that it was required to consider the ‘internal flight alternative’, and that for that purpose it was required to determine whether it would be unreasonable for the appellant to relocate within Fiji. However, I am satisfied that, because it misconceived the content of the requirement that it not be unreasonable for the appellant to relocate within Fiji, it did not ask itself the right questions before determining that it was not satisfied that the appellant is a person in respect of whom Australia owes protection obligations under the Convention. (emphasis added).
In that passage, Branson J was clearly setting out the relevant test for relocation and was not merely addressing the question of whether there was probative evidence before the tribunal. Her Honour identified a requirement of the test as being that relocation "not be unreasonable". North J expressly agreed with paragraphs 22 and 23 of Branson J's judgment.
Although that statement of the law would normally be understood as binding on this court, the applicant argued that NAIZ was not binding because the argument put in this case had not been advanced in NAIZ and therefore the decision in NAIZ was per incuriam. However, being a lower court, it is not open to this court to treat itself as not bound by Full Federal Court authority on the grounds that the Full Federal Court was per incuriam.
I do not consider that there is any proper basis for distinguishing NAIZ. The genesis of that case may have concerned whether there was probative evidence for the relocation finding. However, the Full Federal Court clearly articulated a test for the consideration of relocation generally.
In all of the circumstances, I consider that this court is bound by NAIZ. Consequently, this ground is not made out.

Ground 2

The second ground of review in the application filed on 26 July 2012 and amended on 9 November 2012 is:
The Tribunal’s decision is affected by jurisdictional error because the Tribunal made illogical or irrational findings in reaching its decision.
Particulars
In its decision, the Tribunal found that, if the applicant returned to Karachi in the reasonably foreseeable future, there was a real chance that he would be persecuted for reason of his religion: see, for example, paragraph 162 of the Tribunal’s decision.
On this basis, the Tribunal had regard to the applicant’s ability to relocate within Pakistan to avoid persecution: see paragraphs 163 to 173 of the Tribunal’s decision.
In reaching its conclusion about the applicant’s ability to relocate within Pakistan, the Tribunal found that the applicant would not have any difficulties returning to Karachi to visit his family: see paragraph 172 of the Tribunal’s decision.
These findings are so irrational or illogical as to disclose jurisdictional error affecting the Tribunal’s decision.
The applicant noted that at paragraph 165 of its reasons for decision the tribunal said:
The tribunal has already found that the review applicant cannot return to Karachi.
The applicant then noted that at paragraph 172 of its reasons for decision the tribunal said:
The tribunal finds that the review applicant will not have any difficulties returning to a cosmopolitan urban centre such as Defence Colony in Karachi.
The applicant argued that these two findings were irreconcilable and therefore demonstrated illogicality and irrationality. The applicant argued that the High Court in Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611; (2010) 115 ALD 248; (2010) 84 ALJR 369; (2010) 266 ALR 367; [2010] HCA 16 at [130] to [135] held that illogicality or irrationality could constitute a jurisdictional error. The first respondent did not dispute that proposition, but added that the test was that no rational or logical decision maker could arrive at the same decision on the same evidence.
The first respondent argued that the tribunal in paragraph 165 of its reasons was saying that the applicant could not return to Karachi to live whereas in paragraph 172 the tribunal was talking about the applicant returning to Karachi to visit his family. The tribunal noted in paragraph 172 of its reasons, in the context of questions about the possibility of relocation within Pakistan, that:
… the review applicant claimed that he will raise suspicions if he were to visit his family from somewhere else in Pakistan.
The first respondent drew a distinction between living in Karachi, which the tribunal accepted that the applicant could not do, and visiting family in a safe area in Karachi, which the tribunal considered that the applicant could do without difficulty. The applicant argued in reply that he will not be able to reach a safe area within Karachi without travelling through other unsafe areas of Karachi.
I accept the first respondent's argument that, in context, the two statements made by the tribunal in paragraphs 165 and 172 of its reasons are reconcilable. There is obviously a difference between living all the time in a particular area and travelling briefly through that area. The relative risks are clearly much greater in the former case than in the latter. I do not consider that the tribunal’s decision on this aspect of this matter was so illogical or irrational that no logical or rational decision maker could have reached the same conclusion.
Having said that, the tribunal’s approach to this issue was somewhat unusual. According to the transcript of the hearing before the tribunal, the applicant did not actually say that he would raise suspicions if he were to visit his family from somewhere else in Pakistan. Nor did the applicant explain why visiting his family from elsewhere in Pakistan would be more problematic than visiting his family from Australia. And, as the first respondent pointed out, there was no explanation of why the applicant's family could not visit him in his new residence elsewhere in Pakistan.
In any event, this ground is not made out.

Ground 3

The third ground of review in the application filed on 26 July 2012 and amended on 9 November 2012 is:
The Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to comply with s 424A o the f the Act.
Particulars
In reaching its conclusion about the applicant’s ability to relocate within Pakistan, the Tribunal found, at paragraph 173 of its decision, that:
(a)the applicant’s family in Karachi was “well positioned financially”; and
(b)the financial position of the applicant’s family supported a finding that the applicant would have the means to relocate safely and to establish himself in a new city without the loss of civil status or comfort.
The information about the financial position of the applicant’s family was information that The Tribunal considered would be a part of the reason for affirming the decision that is under review.
In contravention of s 424A of the Act, the Tribunal failed to:
(a) give the applicant clear particulars of this information;
(b)ensure that the applicant understood why this information was relevant to the review, and the consequences of it being relied on in affirming the decision that is under review;
(c) invite the applicant to comment on it.
This ground concerned paragraph 173 of the tribunal’s reasons for decision where the tribunal said:
He does have family in Karachi but they are well positioned financially and socially and they do not depend on the review applicant’s presence in Karachi to survive. Moreover, the family’s financial and social position supports a finding that the review applicant would have the means to relocate safely and to establish himself in a new city without the loss of civil status or comfort. His family currently live in an affluent suburb of Karachi and he has a number of relatives living overseas, including an aunt in the United States who has previously supported him. It is therefore reasonable to find that the review applicant will continue to be supported by his extended family network if he relocates.
The first respondent conceded that the tribunal did not provide any notice to the applicant under s.424A of the Migration Act 1958. However, the first respondent argued that the tribunal did not need to give such notice because the tribunal provided the relevant information orally pursuant to s.424AA of the Act. That section provides as follows:
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a)the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b)     if the Tribunal does so – the Tribunal must:
(i)         ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii)    orally invite the applicant to comment on or respond to the information; and
(iii)   advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv)   if the applicant seeks additional time to comment on or respond to the information – adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.
The first respondent said that the transcript of the hearing before the tribunal shows that the tribunal orally alerted the applicant to the relevant information. The applicant accepted that the tribunal had done so. However, the applicant argued that the tribunal had not complied with s.424AA(b)(i) which requires the tribunal to ensure as far as is reasonably practicable that the applicant understands why the information is relevant to the review and the consequences of the information being relied on in affirming the decision that is under review.

The first respondent argued that the tribunal had explained the relevance of the material to the applicant. In particular, the first respondent noted that, at page 42 of the transcript, the tribunal explained to the applicant that the material indicated that, at certain times, the applicant did not have a genuine fear of returning to Pakistan.
The applicant said in reply that the tribunal did not ultimately rely on the relevant material to conclude that the applicant did not have a genuine fear of returning to Pakistan. Indeed, the tribunal accepted that the applicant did have genuine fear of returning to Pakistan. Rather, the tribunal relied on the relevant material to conclude that the applicant could reasonably relocate within Pakistan. That is a very different point and it was that point that the tribunal was required to ensure as far as was reasonably practicable that the applicant understood.
I am satisfied that the tribunal did not ensure as far as was reasonably practicable that the applicant understood why the information about his financial support was relevant to the review. Moreover, the tribunal did not invite the applicant to comment on that aspect of the information.
The first respondent also said that the applicant had himself provided the relevant information to the tribunal or the delegate. Consequently, the first respondent said that, pursuant to s.424A(3)(b) and (ba) of the Act, the tribunal did not need to restate that information to the applicant. However, when asked, the first respondent was not able to point to material in the court book which showed that the applicant had in fact given evidence about all of the matters relied upon by the tribunal in the relevant part of paragraph 173 to either the tribunal or the delegate.
Indeed, the transcript of the hearing before the tribunal indicates that much of the information the tribunal relied upon was provided by the applicant in the context of earlier student visa and bridging visa applications. Such information is not the subject of an exclusion under s.424A(3) of the Act.
For the reasons given above, this ground is made out.

Ground 4

The fourth ground of review in the application filed on 26 July 2012 and amended on 9 November 2012 is:
The Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to comply with s 425 of the Act.
Particulars
In reaching its conclusion about the applicant’s ability to relocate within Pakistan, the Tribunal found, at paragraph 173 of its decision, that:
(a)the applicant’s family in Karachi was “well positioned financially”; and
(b)the financial position of the applicant’s family supported a finding that the applicant would have the means to relocate safely and to establish himself in a new city without the loss of civil status or comfort.
The issue of the financial position of the applicant’s family was not the subject of the decision under review by the Tribunal, namely the decision of a delegate of the Minister dated 5 July 2011.
In conducting its review, the Tribunal failed to identify to the applicant the significance of the issue of the financial position of the applicant’s family. As a consequence of this failure, the Tribunal contravened s 425 of the Act.
The applicant relied on SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; (2006) 81 ALJR 515; (2006) 93 ALD 300; (2006) 231 ALR 592; [2006] HCA 63 at [35] where the High Court said:
The Tribunal is not confined to whatever may have been the issues that the delegate considered. The issues that arise in relation to the decision are to be identified by the Tribunal. But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are "the issues arising in relation to the decision under review". That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant.
The first respondent argued that the issue of relocation was the essence of the decision of the delegate in this matter and was clearly raised by the tribunal itself in the hearing before the tribunal. The applicant accepted as much but said that the relevant issue was not relocation generally but the specific matters relied on by the tribunal relating to the financial aspects of the applicant's possible relocation within Pakistan.
I accept the applicant's argument on this point. In SZBEL, at [38] and [41] to [43], the High Court said that the failure of the tribunal to alert the applicant to specific matters that the tribunal considered to be implausible amounted to jurisdictional error. It was not open to the tribunal to rely on specific evidence about the applicant's financial circumstances without alerting the applicant to the relevant issues.
The first respondent also relied on SZLKN v Minister for Immigration & Anor [2008] FMCA 581, where Cameron FM said at [20]:
The relocation issue might also be characterised as an allegation by the applicant that the Tribunal failed to notify to him of an issue which was determinative of his review application. A consideration of the Tribunal’s decision record reveals that such an allegation cannot be made out. It is apparent from the first full paragraph of p.9 of the Tribunal’s decision (RD 81) that the Tribunal put to the applicant the question of relocation and invited his comments on that issue. It is clear that the Tribunal did notify the applicant of this issue and gave him the opportunity to give evidence and present arguments in relation to it. As a consequence, no breach of s.425 is disclosed.
It is not clear from the reasons for decision in SZLKN whether the tribunal in that case relied on any particular evidence in relation to relocation about which the applicant had no notice. It is possible that the tribunal simply asked the applicant why he could not relocate within his home country and the tribunal was not persuaded by the answer. In the absence of more detail about the actual circumstances in SZLKN, I am not satisfied that SZLKN is on all fours with the present case.
For the reasons given above, this ground is made out.

Conclusion

As grounds 3 and 4 have been made out, the usual writs should issue.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Riley FM

Date: 4 December 2012