MZZJV v Minister for Immigration

[2013] FCCA 1902

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZZJV v MINISTER FOR IMMIGRATION & ANOR [2013] FCCA 1902

Catchwords:
MIGRATION – Refugee Review Tribunal – internal relocation – Sri Lanka – whether the Tribunal correctly applied the test – whether there was no evidence for certain findings made by the Tribunal.

Cases cited:
Minister for Immigration and Multicultural Affairs vGnanapiragasam (1998) 88 FCR 1; [1998] FCA 1213
MZYPW v Minister for Immigration and Citizenship (2012) 128 ALD 520; (2012) 289 ALR 541; [2012] FCAFC 99
MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191; (2012) 133 ALD 276; [2012] FCA 1032
MZZIG v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1236
Randhawa v Minister for Immigration, Local Government and Ethic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265
Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 34 ALD 347; [1994] FCA 1105
SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; (2007) 97 ALD 1; (2007) 237 ALR 634; (2007) 81 ALJR 1659; [2007] HCA 40

Applicant: MZZJV

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: MLG 552 of 2013

Judgment of: Judge Riley

Hearing date: 8 October 2013

Date of last submission: 8 October 2013

Delivered at: Melbourne

Delivered on: 20 November 2013

REPRESENTATION

Counsel for the applicant: Roz Germov

Solicitors for the applicant: Joy Popovska and Associates

Counsel for the first respondent: Tim Reilly

Solicitors for the first respondent: Sparke Helmore

Counsel for the second respondent: No appearance

Solicitors for the second  respondent: Sparke Helmore

ORDERS

1. The application filed on 26 April 2013 and amended on 7 August 2013 be dismissed.

2. The applicant pay the first respondent’s costs, fixed in the sum of $6,646.

FEDERAL CIRCUIT
COURT OF AUSTRALIA AT
MELBOURNE

MLG 552 of 2013

MZZJV

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

And

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application for review of a decision made by the Refugee Review Tribunal. The Tribunal affirmed a decision of the delegate not to grant the applicant a protection visa.

The applicant’s claims

1. The applicant claimed that:

   a)he is a Tamil man from a particular village in the north-west of Sri Lanka;

   b)his  parents adopted an orphan boy;

   c)the authorities later accused the applicant’s father of taking in the son of an LTTE cadre;

   d)the applicant’s father was severely beaten and died about one year later;

   e)the applicant and his brother were occasionally arrested during roundups of Tamil men in their village;

   f)the applicant’s brother became very fearful and committed suicide;

   g)the applicant was arrested in 2008 and 2009 along with other people;

   h)the local police scared local business owners into giving them bribes;

   i)the applicant was detained for five days in December 2011 and beaten;

   j)the police accused the applicant of helping the LTTE based on his connection with his father;

   k)the applicant’s mother paid a large bribe to secure his release; and

   l)the applicant fled Sri Lanka a few weeks later.

The Tribunal’s reasons  

1. The Tribunal accepted most of the applicant’s claims.   However, the Tribunal did not accept that:

   a)the applicant was questioned about his or his father’s involvement with the LTTE  when he was detained in December 2011;

   b)the applicant has an actual or imputed LTTE profile; and

   c)the applicant’s relatives in Colombo told him that he had to leave the house.

2. Rather, the Tribunal considered that the applicant was detained purely because the police were seeking to extort money from him.  In relation to the applicant’s relatives in Colombo, the Tribunal said at paragraph 10.c  of its reasons for decision:

   I reject his claim made during the hearing, when I was discussing with him whether he could live safely in Columbo, that his relatives in Colombo told him that he had to leave their house.  

   
   

   I am of the view that the applicant fabricated this evidence because he did not like the direction that my questions were taking, namely that any problems he has are confined to his village and that he has somewhere to live in Colombo.

3. The Tribunal concluded that the applicant faced a real chance of persecution only in his home village and its immediate environs. The Tribunal considered that the applicant could reasonably relocate to Colombo.  The Tribunal said:

   21.I have found that the applicant’s well-founded fear of persecution is confined to his village and its immediate environs, because the agents of such harm are … local police.

   22.I do not accept that problems at the hands of the local police in his village would follow him elsewhere in Sri Lanka. I do not accept that, putting to one side the generic claims raised, that there is any appreciable risk, now or in the reasonably foreseeable future, of the persecution feared occurring in Colombo, nor do I accept, in the alternative, that there are substantial grounds for believing that there [is] a real risk that he will suffer significant harm in Colombo as a necessary and foreseeable consequence of his return to Sri Lanka.

   23.The applicant’s own evidence is that he stayed with relatives in Colombo after the December 2011 incident. I have rejected his claim that he is no longer welcome there.

   24.I do not accept that he will be required to register in Colombo because the UNHCR states, in its Eligibility Guidelines For Assessing The International Protection Needs Of Asylum-Seekers From Sri Lanka, December 2012 (UNHCR Guidelines)

   Currently there is no specific requirement for Tamils or persons of any other ethnicity to register with the police if they take up residence in Colombo.

   25.The country information submitted by the applicant’s representative that suggests that there is a requirement for Tamils to register in Colombo is out-dated. I prefer the most recent evidence from the UNHCR.

   26.As a result, I do not accept the applicant’s claims that he will be forced to obtain a clearance from the local police in [X] for the purposes of registration in Colombo.

   27.The applicant has not raised any other factors personal to him that would impact upon the practicability of him relocating to Colombo. I find that he has somewhere to live in Colombo, and he would in due course be able to obtain employment and carry on his life there successfully. On balance, I find that it would be reasonable for the applicant to relocate to Colombo.

Grounds of the application

1. There were two grounds of review in the amended application filed on 7 August 2013.   However, the applicant withdrew his second ground in his contentions of fact and law.  The remaining ground of review in the application filed on 26 April 2013 and amended on 7 August 2013 is:

   The decision was made in breach of an essential pre-condition to the exercise of the power conferred by sections 414 and 415 of the Migration Act 1958 (Cth) (as amended) (“the Act”) because the Tribunal failed to determine whether the Applicant had a well-founded fear of persecution as required by sections 36(2)(a), 91R(1) and 65(1)(a)(ii) of the Act and sub-clause 866.211 of part 866 of Schedule 2 to the Migration Regulations 1994 (“the Regulations”).

   Particulars

   (a)The Tribunal found that the Applicant was a credible witness and that he had a well-founded fear of persecution only in his home town of [X] and its immediate environs and that he could avoid serious harm by relocating to Colombo and live with his relatives.

   (b)In assessing whether permanent relocation was reasonably practicable the Tribunal is required to assess the applicant’s personal attributes and resources as well as whether serious harm could be avoided by a person like the Applicant in a country the size of Sri Lanka.

   (c)The Tribunal failed to consider whether it was reasonably practicable for the Applicant to relocate to Colombo permanently whether or not he was able to stay with relatives.

   (d)The Tribunal assumed that because the Applicant had stayed with relatives in Colombo on one past occasion that he could continue to do so in the reasonably foreseeable future when there was no evidentiary basis for that assumption.

2. The applicant clarified these grounds during the hearing before this court.   The applicant said that there was no evidence that:

   a)he could live with his relatives in Colombo indefinitely; and

   b)his education and previous work experience would render him capable of finding employment in Colombo.

3. The parties were in agreement about the legal test to be applied in internal relocation cases. Basically, the question is whether it is reasonable in the particular circumstances of the applicant to relocate within his own country.

4. In Randhawa v Minister for Immigration, Local Government and Ethic Affairs (1994) 52 FCR 437; (1994) 35 ALD 1; (1994) 124 ALR 265, Black CJ said:

   13. In the present case the delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.

   14. This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.

   15. Moreover, the range of the 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. AR 7. Professor Hathaway, op cit at p134, expresses the position thus:

   “The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized." [Original emphasis.]

   16. If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded. I should add that this seems to me to be a better way of looking at the matter than to say, as the first and last sentences of paragraph 91 of the Handbook suggest, that the fear of persecution need not extend to the whole territory of the refugee's country of nationality if under all the circumstances it would not have been reasonable to expect a person to relocate.

   17. In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant's Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If 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 on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.

5. In SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18; (2007) 97 ALD 1; (2007) 237 ALR 634; (2007) 81 ALJR 1659; [2007] HCA 40, Kirby J said at [80] to [81]:

   ... Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation; or where safety could only be procured by going underground or into hiding; or where the place would not be accessible on the basis of the applicant's travel documents or the requirements imposed for internal relocation.

   An inability or unwillingness on the part of the national authorities to provide protection in one part of the country may make it difficult to demonstrate durable safety in another part of that country. In some circumstances, having regard to the age of the applicant, the absence of family networks or other local support, the hypothesis of internal relocation may prove unreasonable. In each case, the personal circumstances of the applicant; the viability of the propounded place of internal relocation; and the support mechanisms available if an applicant has already been traumatised by actual or feared persecution, will need to be weighed in judging the realism of the hypothesis of internal relocation. (citations omitted)

6. In MZYPW v Minister for Immigration and Citizenship (2012) 128 ALD 520; (2012) 289 ALR 541; [2012] FCAFC 99, Flick and Jagot JJ said at [9]:

   No issue was taken with the proposition that an assessment of reasonableness was dependent upon “... the particular circumstances of the applicant for refugee status”. Nor did Senior Counsel for the Respondent Minister put in issue the potential relevance of those factors identified by Kirby J. Relevant to the present proceeding is the Respondent Minister’s acknowledgment that when assessing whether relocation is reasonable one may consider factors such as:

   ·“other and different risks in the propounded place of internal relocation”, including risk of violence for non-Convention reasons; and

   ·“the absence of family networks”.

   What was put in issue, and what must be accepted, was that the factors identified by Kirby J were not to be construed as a statutory list of considerations which must necessarily be taken into account in every case.

7. In MZYQU v Minister for Immigration and Citizenship (2012) 206 FCR 191; (2012) 133 ALD 276; [2012] FCA 1032 Dodds-Streeton J said at [83] and [84]:

   Nevertheless, in my opinion, the IMR failed accurately to identify and consider the appellant’s objection to relocation in Kabul based on his mental illness. The appellant claimed not only to have seizures and panic attacks arising from past persecution (which the IMR accepted, and deemed relevant) but objected to relocation in Kabul because “Quite aside from the fact that adequate care would not be available in Kabul, [the appellant’s] physical responses indicate that he can not bear the thought of returning to Afghanistan...”. Further, the appellant’s submissions dated 8 June 2011 relied on reports which referred to a lack of health care in Kabul, the inadequacy and insecurity of health systems, the closure of clinics and returnees’ lack of access to health care. The IMR expressly recognised that the appellant’s mental health attacks were likely to continue if he returned to Afghanistan, and were relevant to relocation. The IMR did not, however, refer to or consider the practical realities of the lack or inadequacy of health services in Kabul raised by the appellant’s material.

   Therefore, in my opinion, ground 2 is established.

8. In MZZIG v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCCA 1236, Judge Burchardt said at [28] to [30]:

   While, of course, it is for the applicant to make his or her case, the fact is that relocation is not merely a subset of the grounds of persecution or of significant harm, referred to in the Convention and in the Complementary protection criterion. It concerns whether or not it is reasonable and practicable for the applicant to relocate. The applicant’s materials (see paragraph 18 above) had squarely raised the issue of endemic violence in Karachi and the inevitable associated risks. Although not clearly pressed at the hearing, it was an issue that should have been addressed.

   Put again shortly, the fact is that the applicant’s submission that the relocation principle is not limited to the Convention or the Complementary protection criterion in the sense that it involves broader considerations than mere persecution per se is, in my view, plainly correct.

   It follows that the Tribunal misconstrued the test it was applying and fell into jurisdictional error in this regard.

9. The first respondent accepted that the Tribunal was required to consider the applicant’s particular circumstances and the practicalities of internal relocation.  However, the first respondent submitted that the particular obstacles to internal relocation that the Tribunal was required to address were those that the applicant raised himself or which clearly arose from the materials. 

10. I accept that submission. It is consistent with general principle as well as with MZZIG, where Judge Burchardt noted that the applicant had raised the issue of generalised violence in his written submissions, and with Randhawa, where Black CJ said at [17]:

    the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant. (emphasis added).

11. The word “largely” in that passage presumably alludes to the requirement for the Tribunal to deal with issues that the applicant has not raised expressly, but which arise clearly from the materials.  

12. The applicant relied upon Minister for Immigration and Multicultural Affairs vGnanapiragasam (1998) 88 FCR 1; [1998] FCA 1213, where Weinberg J said at 19:

    Senior Counsel for the applicant contended that the RRT erred in law in failing to consider the possibility that while Jaffna and Colombo may have been cities to which the respondents could not reasonably be expected to return, there may have been other towns or regions in Sri Lanka to which they could be sent without risk of Convention based persecution. It is sufficient for me to say that I have read with care all of the material which was before the RRT concerning conditions in Sri Lanka generally, and the position of Tamils in that country in particular. I cannot accept the submission.

    I do not believe that there was any obligation upon the RRT to conduct an investigation into conditions in each town and region within Sri Lanka in order to see whether there was any enclave which could be found which would permit the respondents to reside in that place with safety. The material before the RRT suggested strongly that though Jaffna and the north of Sri Lanka were areas of particular danger so far as the respondents were concerned, the dangers were widespread, and existed throughout many parts of that country.

    It is not reasonable to expect a Sri Lankan Tamil whose family has only ever had ties with Jaffna and Colombo and who has a well-founded fear of persecution in relation to both those cities to relocate to another part of Sri Lanka which might conceivably be less dangerous, if, after an extensive trawling exercise, such a location can be found. Sri Lanka is a small country, and the possibilities of reasonable relocation are necessarily limited … .

1. The applicant relied upon Gnanapiragasam to say that Sri Lanka is still a small country, and, as a general rule, it is unreasonable to relocate within it to avoid persecution.

2. I do not consider that Gnanapiragasam can be applied so simplistically to the present case.  Gnanapiragasam was decided 15 years ago. As a matter of common knowledge, a lot has changed in Sri Lanka since then.  Moreover, the applicant in Gnanapiragasam was found by the Tribunal to have a well-founded fear of persecution in two substantial areas, Jaffna and Colombo.  The present case is quite different.  The applicant in the present case was found to have a well-founded fear of persecution only in a small village and its environs and not in Colombo.  Additionally, Gnanapiragasam, was decided on other grounds, namely, the question of a safe third country.  It was found that the Tribunal had erred on that issue, and the question of internal relocation was dealt with briefly, almost as a side issue.

3. In these circumstances, Gnanapiragasam cannot be treated as authority for the proposition that, as a matter of law, relocation within Sri Lanka is necessarily unreasonable.

4. The first matter the applicant raised with the Tribunal in relation to whether he could relocate to Colombo was that he would have to register with the authorities.  The Tribunal did not accept that claim, based on country information that it cited.  That conclusion was open to the Tribunal and was not challenged in this court.

5. The second matter the applicant raised with the Tribunal in relation to whether he could relocate to Colombo was that, if he had to relocate, his business in his home village would be destroyed.  That claim did not advance the matter, because, obviously, the same would happen if the applicant came to Australia.  The applicant did not rely on this point before this court.

6. The third matter the applicant raised with the Tribunal in relation to whether he could relocate to Colombo was that his relatives in Colombo had told him he was not welcome.  The Tribunal rejected that claim, saying that it was fabricated.  It is well established that the Tribunal is able to reject claims made by an applicant without having any specific evidence to contradict those claims.  For example, in Selvadurai v Minister for Immigration and Ethnic Affairs(1994) 34 ALD 347; [1994] FCA 1105, Heerey J said 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.

   Consequently, it was open to the Tribunal to reject the applicant’s claim that his relatives had said that he was not welcome.

7. Before this court, the applicant submitted that the Tribunal failed to discharge its duties by failing to discuss with the applicant the practicalities of relocating to Colombo such as finding accommodation and earning a living.  Before the Tribunal, the applicant made certain claims about his inability to find accommodation with relatives, which the Tribunal rejected.  However, the applicant did not suggest that he would be unable to earn a living.  That may be because he did not think he would be unable to earn a living in Colombo.  He was an able-bodied, 29 year old man who had successfully run a fish wholesaling business.  In the absence of any claim that he would be unable to earn a living, there was no reason for the Tribunal to suppose that the applicant would not be able to earn a living in Colombo and no reason for the Tribunal to question the applicant about that matter.

8. The applicant submitted that family support, or the lack of it, is a relevant matter in relocation cases.  For present purposes, that proposition may be accepted.  However, the applicant then submitted that there was no evidence for the Tribunal’s conclusion that the applicant could live with his relatives indefinitely.   

9. That submission is misconceived.  The Tribunal did not say that the applicant could live with his relatives indefinitely.  The Tribunal said at [27]:

   I find that he has somewhere to live in Colombo, and he would in due course be able to obtain employment and carry on his life there successfully.

10. It is implicit in that passage that the Tribunal expected the applicant to find a job in Colombo and then get on with his life by obtaining his own accommodation and so on.

11. It is not correct to say that there was no evidence that the applicant could live with his relatives.  There was evidence that the applicant had lived with his relatives in the past.  That was sufficient evidence that he would be able to do so again.

12. The applicant also submitted that there was no evidence that the applicant’s education and previous work experience would render him capable of finding employment in Colombo.  However, the applicant was a 29 year old adult who had previously run a successful fish wholesaling business in Sri Lanka.  That is sufficient evidence that he would be able to obtain employment in Colombo, absent some physical or mental illness.   There was no suggestion of any such illness.

Conclusion

1. For the reasons given above, I am unable to accept the applicant’s submissions.  The application must be dismissed with costs.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Judge Riley.

Date: 20 November 2013