MZZVK v Minister for Immigration
[2014] FCCA 1914
•29 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MZZVK v MINISTER FOR IMMIGRATION & ANOR | [2014] FCCA 1914 |
| Catchwords: MIGRATION – Application for extension of time to lodge an application for a judicial review of a decision by the Refugee Review Tribunal – principles of relocation applied by the Tribunal – no jurisdictional error alleged – application for an extension of time refused. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(aa), 36(2B)(a), 477(2) Convention relating to the Status of Refugees, Article 1A(2) |
| Aras v Minister for Immigration and Ethnic Affairs (1998) 50 ALD 797 Egbuono v Minister for Immigration and Multicultural Affairs [2000] FCA 1931 Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 Ravind Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 138 S14/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153 Syan v Refugee Review Tribunal and Another (1995) 61 FCR 284 SZADJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1418 SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 SZENJ v Minister for Immigration and Citizenship [2007] FCA 734 SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 SZSLG v Minister for Immigration and Border Protection [2013] FCA 1185 SZQMR v Minister for Immigration and Citizenship [2011] FMCA 992 SZQMR v Minister for Immigration and Citizenship [2012] FCA 122 |
| Applicant: | MZZVK |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 1869 of 2013 |
| Judgment of: | Judge Whelan |
| Hearing date: | 12 June 2014 |
| Date of Last Submission: | 12 June 2014 |
| Delivered at: | Melbourne |
| Delivered on: | 29 August 2014 |
REPRESENTATION
| Counsel for the Applicant: | Applicant in person |
| Counsel for the First Respondent: | Mr N Wood |
| Solicitors for the First Respondent: | Sparke Helmore |
ORDERS
The application for an extension of time, pursuant to s.477(2) of the Migration Act 1958 (Cth) be refused.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLG 1869 of 2013
| MZZVK |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for judicial review of a decision
(“the application”) by the Refugee Review Tribunal (“the Tribunal”) to affirm an earlier decision by a delegate of the Minister to refuse to grant the Applicant a Protection (Class XA) visa.[1]
[1] Application filed 4 November 2013.
The application does not specify any final orders sought by the Applicant.
The application was lodged three days out of time. The only ground upon which an extension of time is sought is as follows: “I checked my visa status online, with Debt [sic] of Immigration which displays my visa does not expire until 06th November 2013”.[2]
[2] Ibid at p.2.
The Applicant’s affidavit in support simply states, “I strongly feel, I deserve to be given a protection visa for my fear of life returning to my home country for having an affair with a muslim, intercase [sic] girl”.[3]
[3] Affidavit filed by MZZVK on 4 November 2014 at p.1.
Background
The Applicant is a citizen of India from the Punjab area. He is a Hindu. He arrived in Australia on 28 February 2008 on a student visa. Since then, the Applicant has been on various student or bridging visas. In February 2012, he applied for a skilled graduate visa which was refused in September 2012. The Applicant applied in November 2012 for a tourist visa, but subsequently withdrew that application.
On 8 January 2013, the Applicant made an application for a protection visa. The Applicant was invited to attend an interview with a delegate of the First Respondent (“the delegate”) but failed to accept that invitation. On the basis of the material before the delegate, the delegate was not satisfied that the Applicant met the criteria for a protection visa.
On 9 April 2013, the Applicant made an application for review to the Tribunal. On 29 August 2013, he appeared at a hearing before the Tribunal. At the hearing he gave further details regarding his claims. On 27 September 2013, the Tribunal issued its decision upholding the decision of the delegate. On 4 November 2013, the Applicant lodged his application for judicial review.
The Applicant’s claims
The Applicant’s claims can be summarised as follows:
·In 2006 he fell in love and began a clandestine relationship with a Muslim girl whose father was a “Muslim extremist”.[4];
[4] Outline of First Respondent’s Submissions filed 5 June 2014, p.2 at para.5.2.
·On 14 February 2007, the girlfriend’s parents caught them at a Valentine’s Day party. The Applicant was badly beaten by his girlfriend’s father and associates and told that he would be “done to death” if he continued to see the girl. The Applicant also claimed that he had been “injured and beaten by the Muslim community”.[5];
·After the Valentine’s Day incident, the Applicant ran into the girlfriend’s father at a market, and tried to convince him to accept the relationship. The father did not accept the relationship, and “pointed out that [the applicant] was not one of their community and if [the applicant] tried to meet [the girlfriend], they would kill him”.[6];
·Despite the beating and threats, the Applicant continued to see the girl. However, as his girlfriend’s father was very influential, he fled India;
·The Applicant fears harm at the hands of the WAQF Board of Punjab, the police and the Muslim community, because he had an “inter-religion” relationship with a Muslim girl. He also fears being implicated in a criminal case and “punished for nothing”.[7];
·The Indian authorities will not protect him, because his girlfriend’s father has close alliances with local government and the chairman of the WAQF Board of Punjab.[8];
·The girlfriend’s family were “very strict Muslims” and might kill her as an “honour killing” if they saw her with him again.[9];
·The Applicant continued to see his girlfriend until he came to Australia in February 2008. The couple kept in touch by telephone and Skype until 2011, when the Applicant returned to India with the intention of marrying his girlfriend;
·The Applicant had clandestine meetings with the girlfriend in India in 2011, however her parents found out:
He was confronted by the girlfriend’s uncle and brother, who “abused” him. His girlfriend’s “people” also found at [sic] the registration number of the scooter he was using. On one occasion, when his cousin borrowed that scooter, the cousin was injured in a “hit and run” incident by a motorist who confessed that he had been given money to “create the accident”.[10]; and
·The Applicant maintains contact with the girlfriend; she calls him from public telephones.[11]
[5] Outline of First Respondent’s Submissions filed 5 June 2014, p.2 at para.5.3.
[6] Ibid, p.3 at para.7.1.
[7] Ibid, p.2 at para.5.5.
[8] Ibid at para.5.6.
[9] Ibid, p.3 at para.7.2.
[10] Outline of First Respondent’s Submissions filed 5 June 2014, p.3 at para.7.4.
[11] Ibid at para.7.5.
The Tribunal’s decision
At the hearing, the Tribunal invited the Applicant to comment on certain issues and information, including:
a)Whether the Applicant could safely live in another city in India, far from the Punjab, and in particular:
·Whether the girlfriend’s family would know that he had returned to India if he lived in another city in India;
·If the girlfriend’s family found out that he had returned to India whether they could find him there; and
·Even if the family could find him there, whether they would seek to do so, so long as the Applicant was away from the girlfriend.
b)Whether it would be reasonable for the Applicant to relocate to another city in India given:
·His language skills (English, Hindi and Punjabi);
·His qualifications (two diplomas in commercial cooking and business management obtained in Australia);
·His work experience (including as a taxi driver and a chef); and
·The fact that he had successfully relocated in the past to another city in India and to Melbourne.
The Tribunal asked the Applicant who the girlfriend’s father’s “connections” were to which the Applicant replied, “everyone”. The Applicant conceded that he “had no real notion of who the father was, but surmised that, because the father was a rich businessman, [he] would have “connections” with political authorities, the police, the local mafia, or Muslim extremists”.[12]
[12] Outline of First Respondent’s Submissions filed 5 June 2014, pp.3-4 at para.7.6.
The Tribunal also put certain country information to the Applicant, including information to the effect that:
·Indians can move freely in India and that the police do not conduct background checks and do not generally know where individuals live;
·Unemployment in India is low and projected economic growth is high; and
·Hindi is the majority language in a number of northern states and is understood by around 40% of the entire population of India:
In response to the suggestion that he could safely relocate to another city in India, the applicant maintained his assertion that the girlfriend’s family would find him there. The applicant did not respond to the factors put to him that suggested that relocation would be reasonable.[13]
[13] Ibid, p.4 at para.9.
The Tribunal accepted that, if the Applicant was to return to his home area other than for a fleeting visit of a few days, there was a real chance that the girlfriend’s family would “perpetrate physical harm to him amounting to serious harm” because, resident in his and her home area, the Applicant presented a clear threat to once again recommence a relationship with the girlfriend, which her family distinctly objected to:“However, the Tribunal considered that the applicant could reasonably be expected to relocate to another city in India”.[14]
[14] Ibid, p.5 at para.10.
With respect to whether the Applicant faced a real chance of persecution in another city in India, the Tribunal made the following findings:
·The Tribunal was not satisfied that the girlfriend’s family had any relevant “connections” as claimed;
·The Tribunal was also not satisfied that the girlfriend’s family would be able to find the Applicant in a country as vast and populous as India; and
·In particular, the Tribunal dismissed as “highly speculative” the notion that the girlfriend might “suicide or refuse to marry and give her parents renewed motive to find and harm him”, or that the girlfriend might try to visit him where he lived in India and thereby “draw” her parents to him:
Furthermore, the Tribunal found that, so long as the applicant did not reside in his home area, the girlfriend’s family would have no interest in locating him even if they could ... if he wished he could maintain contact with the girlfriend while living in the place of relocation in India, just as he had while living in Melbourne.[15]
[15] Outline of First Respondent’s Submissions filed 5 June 2014, p.5 at para.11.
With respect to the reasonableness of the relocation, the Tribunal noted that the Applicant had raised no specific objections.
Nevertheless, the Tribunal noted that the applicant would want to see his parents in his home area ... The Tribunal found that it would be reasonable for the applicant and his family to continue the practice that had applied during his stay in Australia, whereby the applicant’s family visits him ... The Tribunal concluded that it would be reasonable for the applicant to relocate, just as he had done previously, and that the applicant thereby did not meet the “refugee” criteria in s.36(2)(a).[16]
[16] Ibid at para.12.
Based on the same reasoning, the Tribunal also concluded that s.36(2B)(a) of the Migration Act 1958 (Cth) (“the Act”) applied to the Applicant and accordingly the Applicant did not meet the complementary protection criteria in s.36(2)(aa) of the Act.
Grounds
The only ground contained in the application for review is as follows: “My application for protection visa is fully justified as I have serious concerns and fear of [sic] my life following having plans to marry a muslim intercast [sic] girl who I had an affair with”.[17]
[17] Application filed by MZZVK on 4 November 2013 at p.3.
During the course of the hearing the Applicant stated that he believed that his application was lodged in time, because “as soon I consult with someone and they say we shouldn’t count this Saturday and Sunday because we only need to the week days, working days”.[18]
[18] Transcript of proceedings, 12 June 2014, p.2 at lines 31-33.
With respect to his grounds for the review application, the Applicant stated that the information that the Tribunal relied upon concerning identity cards was out of date and that he provided current information to the Tribunal. While he agreed that a person might be able to move freely in India without using this identity card, if you wanted to rent a house, get a job, or buy a phone, you had to produce an identity card.[19] He further stated that there was corruption in India and that he did not have the money to prevent his location from being revealed.[20]
[19] Ibid, p.4 at lines 7-11.
[20] Ibid, p.5 at lines 10-12.
The First Respondent’s Submissions
The First Respondent submitted that the application for judicial review failed to identify any cognisant ground. Indeed, it failed to identify any error of any kind by the Tribunal. It is impossible for the Court to engage in judicial review by reference to a ‘ground’ of review of the kind relied on by the Applicant.[21]
[21] SZNXA v Minister for Immigration and Citizenship [2010] FCA 775 at para.21.
The First Respondent further submitted that
The Tribunal considered the applicant’s claims to satisfy the criteria for a protection visa. In effect, the Tribunal accepted much of the applicant’s story regarding his experiences of past persecution. However, the Tribunal did not accept aspects of the applicant’s claims and evidence as relevant to relocation (including the allegation that the girlfriend’s father had relevant “connections”) ... In light of country information, the Tribunal was thereby not satisfied that the applicant would face a real chance of the harm that he claimed to fear in a different city in India. And the Tribunal found it would be reasonable for the applicant to relocate, in circumstances where the applicant gave no reason at all why it would be unreasonable for him to do so.[22]
[22] Outline of the First Respondent’s Submissions filed 5 June 2014, p.6 at para.17.
The First Respondent also submitted that none of the Tribunal’s findings of fact, and its factual findings relevant to its relocation decision, were illogical or irrational such as to constitute a jurisdictional error.
Further, there was no apparent failure by the Tribunal to comply with the requirements of Part 7 Division 4 of the Act:
The Tribunal invited the applicant to attend a hearing; it adequately notified the issues arising in relation to the decision under review; and it considered each of the applicant’s claims. The Tribunal did not rely on “information” to which the obligations in s 424A relates ... The country information set out at paragraphs [24] to [26] and [59] of the Tribunal’s decision is not information to which s 424A relates, because it is not information “specifically about the applicant or another person” within the meaning of s 424A(3)(a).[23]
[23] Outline of the First Respondent’s Submissions filed 5 June 2014, pp.7-8 at para.19.
The First Respondent submitted that:
[T]he Tribunal correctly applied the relevant principles regarding the “internal relocation” principle as relevant to the “refugee” criterion in s 36(2)(a) of the Act, and the cognate principle codified in s 36(2B)(a) of the Act as relevant to the “complementary protection” criterion in s 36(2)(aa).[24]
[24] Ibid, p.8 at para.20.
The First Respondent referred the Court with respect to the internal relocation principle to SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 (“SZATV”):
In that case, the High Court held that the principle “finds its place” in the Convention definition of “refugee” by the process of reasoning adopted by Lord Bingham of Cornhill in Januzi v Secretary of State for Home Department as follows:
The [Convention] does not expressly address the situation at issue in these appeals where, within the country of nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition…: for if a person is outside the country of his nationality because he has chosen to leave the country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he could have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason. [emphasis added][25]
[25] Outline of the First Respondent’s Submissions filed 5 June 2014, p.8 at para.21.
The First Respondent submitted:
Whether relocation is, or is not, reasonable is a question of fact for the decision-maker, not the Court. As a Full Court of the Federal Court held in SZMCD v Minister of Immigration and Citizenship, the answer to the question whether relocation is reasonable in a particular case may be affected by the “framework set by the particular objections raised to relocation”. It is certainly not necessary for the Tribunal to consider possible objections to relocation not raised by the applicant ...
In MZYXS v Minister of Immigration and Citizenship, the Federal Court confirmed that “[t]he issues which arise when considering the reasonableness of relocation in the refugee context are the same which arise in the complementary protection context”.[26]
[26] Ibid, p.9 at paras.23-24.
The First Respondent submitted that the Tribunal complied with these principles of law, because it:
25.1.first considered whether the applicant would face a real chance of persecution or significant harm in another city in India, and decided that he would not; and
25.2second considered whether it would be unreasonable to expect the applicant to relocate to another city in light of any objections raised by the applicant, and decided that it would not.[27]
[27] Ibid at para.25.
The First Respondent submitted that:
[T]he Tribunal did not make any express findings about whether the harm that the applicant feared in his home region had a Convention nexus. However, having regard to the Tribunal’s finding on relocation, it was unnecessary for the Tribunal to do so.[28]
[28] Outline of the First Respondent’s Submissions filed 5 June 2014, p.9 at para.26.
The First Respondent drew to the Court’s attention some apparently conflicting authority with respect to the approach that the Tribunal should take in determining the issue of relocation.
In Syan v the Refugee Review Tribunal, Beazley J of the Federal Court held that, “having found against the applicant on the question of internal flight, it was not necessary [for the Tribunal] to determine whether the applicant had a well-founded fear of persecution for a Convention reason”.
That principle, established in Syan, has subsequently been expressly affirmed on multiple occasions by the Federal Court, and never [sic] has never been expressly disapproved or overruled.[29]
[29] Ibid, p.10 at paras.27-28.
The First Respondent submitted that, in Aras v Minister for Immigration and Ethnic Affairs (1998) 50 ALD 797 (“Aras”):
[T]he tribunal didn’t make a finding that [the applicant] would face persecution for a Convention reason in his home area in Turkey. Instead, the tribunal found that the applicant's circumstances were such that even if the applicant was at a risk of persecution in the area where he lived it would not be unreasonable for him to relocate where he would not suffer any persecution.[30]
[30] Transcript of proceedings, 12 June 2014, p.10 at lines 3-8.
The First Respondent further submitted:
Finkelstein J held that there are “a number of ways in which the Tribunal could proceed when considering whether it is reasonable for an applicant to relocate to some other region of his country of origin in order to avoid persecution”. One way is for the Tribunal to “first make findings about such of the asserted facts as the tribunal thinks necessary for it to be able to determine whether the applicant is able to relocate to another region to avoid persecution and on the basis of those findings decide whether it is reasonable for the applicant to do so”. That is the approach which the Tribunal adopted in this case.[31]
[31] Outline of the First Respondent’s Submissions filed 5 June 2014, p.10 at para.28.
The First Respondent submits that the principles applied in Aras in numerous other cases demonstrate that:
[I]t is not necessary, when deciding whether someone is a refugee, to approach the inquiry in a sequential fashion such that one must first determine all of the elements of the definition of “refugee” but for relocation and then [consider] relocation only if necessary.[32]
[32] Transcript of proceedings, 12 June 2014, p.10 at lines 42-46.
Having regard to the definition of ‘refugee’ in Article 1A(2) of the Convention relating to the Status of Refugees (“the Convention”), the fact that a person is not outside the country of nationality owing to a well-founded fear of being persecuted because they could move to a place of relocation within their own country where they could have no well-founded fear of persecution is simply one of a number of elements of the definition of refugee. If one has no well-founded fear of persecution because it is reasonable to relocate internally:
[T]hen it’s otiose to consider whether the persecution that one is not going to experience would or would not be for a Convention reason ... having said all of that, it must be accepted that, going back to those two questions which arise in a relocation context, first, are you going to be safe essentially and, second, would it be reasonable for you to move there? One can’t properly answer the first question without appreciating the applicant’s claim.[33]
[33] Ibid, p.12 at lines 4-10.
The First Respondent noted that:
[I]n the recent decision in SZSLG v Minister for Immigration and Border Protection [2013] FCA 1185, Collier J stated as follows:
23. At [39] of the primary judgment his Honour observed that:
... the obligation of decision makers under the Migration Act in relation to a claim that a person is a refugee is to consider whether the applicant has a well-founded fear of persecution in his country of origin for a Convention reason. There are no shortcuts to that reasoning process.
(Emphasis in the original).
24. I consider that this statement of his Honour accurately states the law.
25. In Jankovic at 477 the Full Court observed that an immaterial error does not vitiate the decision. In my view the apparent failure of the Tribunal in this case to come to grips with the question whether the appellant actually had a well-founded fear of persecution for a Convention reason goes to the heart of its decision. Although the Tribunal found that the appellant could relocate, it is difficult to see how such a finding could be made without a proper appreciation of the appellant’s circumstances and whether there was a Convention reason for his well-founded fear of persecution.[34]
[34] Outline of the First Respondent’s Submissions filed 5 June 2014, p.10 at para.29.
The First Respondent noted that:
The judgment in SZSLG makes no mention of any of the cases in the Syan line of authority. It may be that the judgment is to be read as confined to its facts, and that the ratio of the case is that the Tribunal failed to form a “proper appreciation” of the appellant’s circumstances in considering the application of the internal relocation principle. [35]
[35] Ibid, p.11 at para.30.
Insofar as the ratio of SZSLG v Minister for Immigration and Border Protection [2013] FCA 1185 (“SZSLG”) may conflict with the Syan v Refugee Review Tribunal and Another (1995) 61 FCR 284 (“Syan”) line of authorities, the First Respondent submits that:
[T]his Court should follow the Syan line of authority, and not SZSLG. Given that SZSLG does not mention any of the cases in the Syan line of authority, or declare them to be wrong ... this Court should not conclude that SZSLG purported to overrule those cases.[36]
[36] Ibid at para.31
The First Respondent submitted:
[I]nsofar as it is said that it is mandatory to consider Convention nexus for feared harm in a home area before considering relocation then we say first of all it collides plainly with the line of authority I've referred your Honour to and, secondly, in any event, having regard to SZATV which really explains the principle that underlines those authorities, it can’t be reconciled.[37]
[37] Transcript of proceedings, 12 June 2014, p.13 at lines 30-34.
Alternatively, the present case is distinguishable from SZSLG on the facts. In the present case, the Applicant:
[C]laimed to fear harm because of his inter-religion/caste relationship with the girlfriend ... the Tribunal accepted that the applicant faced a real chance of serious harm in his home area from the girlfriend’s family because he would present a “clear threat” to recommence the disapproved relationship with [her]. Thus, on a fair reading of the Tribunal’s reasons as a whole it is clear that the Tribunal “properly appreciated” the applicant’s circumstances, including the Convention nexus for his claim to satisfy s 36(2)(a) – being religion and/or ethnicity.[38]
[38] Outline of the First Respondent’s Submissions filed 5 June 2014, p.12 at para.34.
With respect to the extension of time application, the First Respondent submits that:
Factors that may be relevant to whether it is in the interests of justice to make such an order include: the length of the delay; whether the applicant has shown an acceptable explanation for his delay; the public interest in there being an end to litigation about the efficacy of administrative decisions; and the merits of the proposed application for judicial review.
The [First Respondent] submits that the proposed application for judicial review ... lacks substance. The [First Respondent] also notes that the applicant has provided no explanation for his failure to file an application for judicial review within the period allowed under the Act. In those circumstances, and having regard to the public interest referred to above, the Court should refuse to make an order extending time under s 477(2) of the Act, with the consequence that the application for judicial review is incompetent.[39]
[39] Ibid at paras.36-37.
Conclusions
In determining this matter, the Court must first consider if an extension of time should be granted under s.477(2) of the Act.
The First Respondent has summarised the factors which the Court should consider in dealing with whether it is in the interest of justice to make such an order. It is to be noted that in this matter, the length of the delay is not excessive, being only some three days. With respect to whether there is an acceptable explanation for the delay, the Applicant refers to his visa status not expiring “until 06th November 2013”.[40]
[40] Application filed 4 November 2013 at p.2.
This is not relevant to why he was not able to file his application within the 35 days specified by the Act. In oral submissions, he suggested that it was his understanding that, in calculating the 35 days, only working days were to be taken into account. A misunderstanding as to the applicable provisions may provide some explanation as to why the application was not lodged within the required time. Given the short period of the delay and the statutory obligations on the Tribunal and the Court, I do not consider that this is a case where the public interest in there being an end to litigation is significant. I therefore turn to the merits of the application.
First, the grounds set out in the application make no allegation of jurisdictional error on the part of the Tribunal. The sole basis of the Applicant’s claim was that:
·He was a Hindu;
·He had formed a relationship with, and wished to marry, a Muslim girl;
·His fear of persecution related to her family’s objections to that relationship;
·Harm he had experienced at their hands; and
·Fears he had concerning threats made against him by them.
The Applicant was invited to attend a hearing and was given an opportunity to present his case. The Tribunal accepted that the Applicant was at risk of physical harm amounting to serious harm from the girlfriend’s family should he return to his home area and recommence the relationship with her. I am satisfied that, on a fair reading of the Tribunal’s decision, it is clear that the Tribunal properly appreciated the Applicant’s circumstances and dealt with his claim.
The Tribunal then went on to consider if the harm was limited to the geographical area where both the Applicant and the girlfriend lived, and whether it was therefore reasonable for him to relocate to a place away from his previous place of residence. The Tribunal did not accept that the girlfriend’s father would be able to find him in a different part of India, or would seek to do so. The harm was therefore localised. Further, the Tribunal found it would not be unreasonable for the Applicant to relocate and gave reasons for this, including:
·The Applicant’s education and work experience;
·His language ability; and
·His previous ability to live away from his family.
The factual findings were reasonable, particularly in light of the fact that the Applicant, himself, raised no other objection to relocation apart from his fear of his girlfriend’s family locating him and his own desire to see his parents. With respect to the latter the Tribunal referred to the fact that he had only visited his family once since 2008, and that his father had visited him in Melbourne and could reasonably visit him if he lived in another part of India.
The Tribunal found that it was reasonable for the Applicant to relocate both with respect to meeting the refugee criteria and the complementary protections criteria. I accept that there was nothing illogical or irrational about those findings and that they were based on evidence before the Tribunal.
The only matter which the Court needs to consider is whether the failure of the Tribunal to make an express finding that the serious harm to which the Applicant might be subjected in his home area was for a Convention reason, amounted to error on the part of the Tribunal.
In SZATV, the High Court considered that a well-founded fear of persecution need not always extends to the whole territory of an Applicant’s country of nationality for the Applicant to qualify as a refugee under Article 1A(2) of the Convention. However, a person will be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country. At paragraph 15 of the joint judgment of Gummow, Hayne and Crennan JJ, their Honours considered that any ‘principle’ respecting ‘internal relocation’ must be distilled from the text of the Convention definition which is applied by s.36(2) of the Act as a criterion for the grant of a protection visa. Their Honours went on to say:
The critical portion in Art 1A(2) of the Convention definition of “refugee” states that that term shall apply to any person who:
“owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence … is unable or, owing to such fear, is unwilling to return to it.”[41]
[41] [2007] 233 CLR 18, p.24 at para.15.
Their Honours went on to refer to the joint judgment of McHugh and Gummow JJ in Minister for Immigration and Multicultural Affairs v Khawar (2002) 201 CLR 1 and to the judgment of Gleeson CJ, Hayne and Hayden JJ in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1. Finally, their Honours went on to cite the paragraph referred to by the First Respondent in the decision of Lord Bingham of Cornhill, in Januzi. Their Honours concluded with a further quote from Lord Bingham as follows:
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.[42]
[42] Ibid, p.26 at para.22.
In Syan, her Honour Beazley J referred to the fact that Australia had adopted obligations to protect persons who were Refugees within the meaning of Art 1A(2) of the Convention. Her Honour then quotes the relevant provision. In the matter before her the Tribunal had stated:
“Exactly at what point the ‘internal flight’ issue needs to be dealt with is an interesting issue in refugee law. This Tribunal’s view is that failure of state protection is part and parcel of the process in determining whether or not a person is a refugee. It is not something tacked on the end or in addition to, the Convention definition. The question of ‘internal flight’ may be legitimately addressed at different points in different decisions . ..[43]”
[43] (1995) 61 FCR 284, p.287 at para.D.
In that case, Counsel for the applicant acknowledged that although the Tribunal’s approach in going directly to the internal flight issue would not necessarily result in an unjust or wrong result, it was an error of principle to deal with the matter by asking the wrong question, or adopting an approach which was not open on the legislation.
Beazley J went on to make the following statement:
However, I am of the opinion that the Tribunal in the present case did not apply a wrong test. Rather, it approached the matter on the basis of an assumption, namely that the applicant would otherwise satisfy the Convention definition of refugee. On that assumption, it considered the question of internal flight. Had it determined that matter in favour of the applicant, it would have been necessary to determine whether the applicant had a
well-founded fear of persecution for a Convention reason. However, having found against the applicant on the question of internal flight, it was not necessary to determine whether the applicant had a well-founded fear of persecution based on a Convention reason. In my opinion, it was open to the Tribunal to consider the matter in that way.[44]
[44] (1995) 61 FCR 284, p.288 at C.
In Aras, Finkelstein J found that the Tribunal’s reasons for the decision demonstrated that the Tribunal gave consideration to each ground relied upon by the Applicant to establish that he had a well-founded fear of persecution. His Honour was of the view that the Tribunal’s findings would support a conclusion that there was no real chance that the applicant in that case would face persecution for a Convention reason if he returned to Turkey:
However, the tribunal did not make that finding. Instead, the tribunal found that the applicant’s circumstances were such that even if the applicant was at risk of persecution in the area where he lived, it would not be unreasonable to him to relocate to another part of Turkey in which case he would not suffer any persecution.[45]
[45] 50 ALD 797 at p.799.
After quoting from the way the Tribunal put the matter, his Honour went on to say:
In this passage the tribunal does not deny that the applicant would have a well-founded fear of persecution if he returned to that region of Turkey in which he was living before he came to Australia. What it does deny is that the applicant would hold a well-founded fear of persecution if he was to live in another region of Turkey.
It is clear that a person who claims to be a refugee will not be regarded as such if he is able to be protected from persecution or will not suffer persecution in some part of that person’s country of nationality.[46]
[46] 50 ALD 797 at p.799
His Honour concluded:
Once the tribunal found, as it did, that it was reasonable for the applicant to relocate to another part of Turkey to “solve his problems” the tribunal was bound to conclude that the applicant was not a refugee and therefore not entitled to a protection visa.
The applicant contends that the tribunal erred in law in considering the issue of relocation without first having determined whether the applicant had a well-founded fear of persecution at least in the area, from whence he came. The submission is that unless the tribunal made such a determination, being a determination that could only be made after the tribunal had considered all of the relevant material in some detail and made findings based on that material, it was not possible for the tribunal to determine whether it was reasonable for the applicant to relocate to some other region.
Once it is accepted that an applicant does not fit the definition of refugee because he is able to obtain protection from persecution in some region of his or her country of nationality, there is no reason why that issue cannot be considered without the tribunal having first determined whether the applicant would in all other respects satisfy the definition.[47]
[47] Ibid at p.800.
His Honour went on to find support for that proposition in the decision in Syan, finding that Beazley J’s approach was clearly correct.
The First Respondent drew the Court’s attention to a number of other matters, where a similar approach was taken. In Egbuono v Minister for Immigration and Multicultural Affairs [2000] FCA 1931, Carr J considered that it was not necessary to resolve the question of whether an applicant had a well-founded fear of persecution because the Tribunal could be seen to have decided that matter by considering whether the applicant might be reasonably expected to relocate within, in that case, Nigeria.
In Ravind Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 138 (“Ravind Chand”), Moore J found support for the approach taken by the Tribunal in the judgment of Beazley J in Syan. In Ravind Chand, the approach taken by the Tribunal was to assume that the applicant had a well-founded fear of persecution, having regard to the applicant’s account of his circumstances. Having made that assumption, the Tribunal went on to consider whether the applicant was unable, or owing to a well-founded fear of persecution, unwilling to avail himself of the protection of his country of nationality. His Honour considered that the approach adopted by the Tribunal in considering the circumstances of the Applicant was open to it.
Similarly, in S14/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153, Moore J also considered that it was open to the Tribunal to conclude that the applicant in that case could relocate to Jakarta where he would not be at risk of harm without addressing, at least expressly, whether he would be at risk of harm were he to return to Aceh. His Honour adopted the same approach in SZADJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1418, finding that it was open to the Tribunal to determine the matter by considering whether there was some location within an asylum-seeker’s country of nationality or residence (other than the location in the country where he or she came from or lived) where the asylum-seeker could reasonably expected to live and where he was not at risk.
In SZENJ v Minister for Immigration and Citizenship [2007] FCA 734, Downes J considered whether the Tribunal had erred by failing to consider a particular claim and form a firm conclusion:
However, the reason why the Tribunal did not firmly resolve this issue is that it proceeded on another basis. It proceeded on a basis which accepted that the claim was true without actually so finding and looked at the consequences.[48]
[48] [2007] FCA 734, p.8 at para.26.
His Honour then looked at the relevant passages from the reasons for decision and went on to say that:
It is well-established that an answer to a claim for refugee status can be found in a circumstance in which an applicant can relocate and it is reasonable to expect the applicant to do so.
The crux of the argument put on behalf of the appellant is that before the second step was taken there should have been a positive determination on the first question as to whether there was detention or not. I do not agree that that is a necessary prerequisite to a consideration of relocation. In many cases it may be desirable for decision-makers to address the first question to conclusion, but I do not think that failure to do so gives rise to any relevantly appealable error.[49]
[49] [2007] FCA 734, pp.8-9 at para.28-29.
I turn now to consider two decisions by her Honour, Collier J, in dealing with appeals from Judge Driver of this Court. The first of these was an appeal from a decision of his Honour in SZQMR v Minister for Immigration and Citizenship [2011] FMCA 992. In two paragraphs of that decision, his Honour made the following comments:
43.. . . It is only when a well-founded fear of serious harm for a Convention reason is established that the issue of relocation arises. Decision-makers need to be careful not to put the cart before the horse.
. . .
46. Nevertheless, it would be a concern if it appeared that the Tribunal was too quick to resort to the relocation principle as an easier option than rigorously testing and resolving protection claims.[50]
[50] [2011] FMCA 992.
Her Honour, in considering the appeal, referred to reservations expressed by Judge Driver at paragraphs [38] to [46] of his decision. She observed that she considered these reservations to be well founded.[51]
[51] SZQMR v Minister for Immigration and Citizenship [2012] FCA 122, p.7 at para.22.
In SZSLG, her Honour was again dealing with an appeal from a judgment of Judge Driver. At paragraph [12] of the judgment, her Honour notes the following:
His Honour took issue with the Tribunal’s statement at [74] of its reasons that in light of its finding on relocation it did not have to consider the issue of state protection. His Honour disagreed, stating that there are no shortcuts in the reasoning process and that the issue of state protection is an essential step that cannot be avoided by making a finding on relocation.[52]
[52] [2013] FCA 1185, pp.3-4 at para.12.
Her Honour later stated:
As his Honour below observed at [37]-[39], the Tribunal appears to find that the appellant has a well-founded fear of persecution in his home area without expressly finding that such persecution would be for a Convention reason. The Minister submits that the inference which should properly be drawn from this is that, presumably, the Tribunal considered that there was an unstated Convention nexus for its finding that the appellant had a well-founded fear of persecution in his home area. The Minister submits further, however, that even if the Tribunal did not, any error in the decision could only have been in the appellant’s favour and would not justify the grant of relief as it could not have affected the outcome: Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 at 477, House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112.[53]
[53] Ibid, pp.5-6 at para.21
Her Honour went on to say that she was not persuaded by the Minister’s submission on this issue:
In my view the apparent failure of the Tribunal in this case to come to grips with the question whether the appellant actually had a well-founded fear of persecution for a Convention reason goes to the heart of its decision. Although the Tribunal found that the appellant could relocate, it is difficult to see how such a finding could be made without a proper appreciation of the appellant’s circumstances and whether there was a Convention reason for his well-founded fear of persecution.[54]
[54] Ibid, p.6 at para.25.
In this matter, I am satisfied that the Tribunal clearly identified and appreciated the Applicant’s circumstances and dealt with his claim on that basis. Further, the claim had been identified by the delegate as a claim based on religion, for the purposes of the Convention. Both the Applicant and the Tribunal appear to have dealt with the review of the delegate’s decision on that basis. I consider it to be implicit in the Tribunal’s findings, in the absence of a claim based on any other ground, that its conclusion that the Applicant could be exposed to serious harm in the area from which he came was based on the Convention reason of the Applicant’s religion.
On that basis, it is not necessary for me to reconcile the decision of Collier J in particular, in SZSLG, with the line of authority, which follows the decision of Beazley J in Syan. I am, however, of the view that a finding that a person is not a refugee because they are able to relocate to an area of the country where they would not have a
well-founded fear of persecution is part and parcel of determining whether the person qualifies for refugee status within the meaning of s.36(2) of the Act and Article 1A(2) of the Convention. In order to reach such a conclusion, it is clearly necessary for the Tribunal to make findings of fact concerning the Applicant’s circumstances. It does not appear to me, however, that is necessary to reach a conclusion that the person has a well-founded fear of persecution for a Convention reason before considering whether they could relocate to an area where there was no basis for a well-founded fear of serious or significant harm.
On that basis I am not persuaded that the application has merit and that it would be in the interests of justice to grant the extension of time. The application for an extension of time is therefore dismissed.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Judge Whelan
Associate:
Date: 29 August 2014
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