NAIZ v Minister for Immigration - [2004] FMCA 137

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NAIZ v MINISTER FOR IMMIGRATION

[2004] FMCA 137

MIGRATION – Application for review of decision of Refugee Review Tribunal – whether reasonable for the applicant to relocate – whether illogicality, absence of probative evidence, denial of natural justice or other jurisdictional error – application dismissed.

Migration Act 1958

Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 124 ALR 265
Kioa v West (1985) 159 CLR 550
Asiamet (No 1) Resources Pty Ltd v FCT (2003) 196 ALR 692
Chi v Minister for Immigration & Multicultural Affairs [2000] FCA 1352
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1
Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59
Mahon v Air New Zealand (1984) AC 808 at 821
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Minister for Immigration & Multicultural Affairs v Rajamanikkan [2002] HCA 32

Minister for Immigration & Multicultural & Indigenous Affairs v W306/01A [2003] FCAFC 208
Attorney-General (NSW) v Quin (1990) 170 CLR 1
Minister for Immigration & Multicultural & Indigenous Affairs v Al-Miahi [2001] FCA 744
NACB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 235
MIMIA v Applicant S [2002] FCAFC 244

Applicant:

NAIZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ657 of 2003

Delivered on:

24 March 2004

Delivered at:

Sydney

Hearing date:

18 September 2003

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Ms T Jowett

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr G Johnson

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

That the application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ657 of 2004

NAIZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for review of a decision handed down by the Refugee Review Tribunal on 14 January 2003 refusing to grant the applicant a protection visa. The applicant, who is a Fijian citizen of Indo-Fijian ethnicity, arrived in Australia from Fiji on 16 August 2001 and lodged an application for a protection visa on 6 September 2001. A delegate of the respondent refused to grant a protection visa to the applicant on 16 November 2001. The applicant sought review by the Tribunal on 27 November 2001.
The applicant claimed to fear persecution in Fiji from her ethnic Fijian neighbours. She said they had harmed her in various ways. The Tribunal accepted that the applicant had a subjective fear of persecution in Fiji, that she had suffered forms of mistreatment in the past after the death of her husband in 1999 and that her neighbours had probably been trying to drive her out of her home. The Tribunal accepted that the applicant feared that if she returned to Fiji she would be attacked and robbed by native Fijians and that they would beat her and demand food as they had done in the past. It accepted that native Fijians had planted vegetables in her backyard, used her toilet and bathroom, made derogatory racial comments and stolen her jewellery and that this had frightened the applicant.
The applicant claimed that she could not relocate within Fiji as she would have no-one to look after her. She claimed that her two sons in Fiji did not want her and her daughter was in Australia. She told the Tribunal that the daughter in Australia had sometimes sent her money but that sometimes she did not receive the money.
The Tribunal reasons for decision record that in the hearing it was put to the applicant that there was information that the security situation had improved in Fiji and that there had been a decrease in communal strife. The applicant had said that it still happened in the villages though not so much in the cities. Her adviser had submitted that it may be unreasonable to expect the applicant to relocate given her age, lack of education and her mental scars from earlier harassment and that she would have no government protection.
The Tribunal was not satisfied that it would be unreasonable for the applicant to relocate. It noted her difficulties but also that her daughter had assisted her in the past and did so in Australia. It was satisfied that with the assistance of her daughter the applicant would be able to relocate within Fiji. The Tribunal accepted that before, during and after the coup in Fiji in May 2000, many Indo-Fijians were subject to mistreatment. However independent evidence referred to stated that present law and order situation in Fiji was stable except for isolated minor harassment and that democracy was being restored and suggested that there was no risk of mistreatment of indigenous Fijians. The Tribunal also referred to the fact that the applicant herself had said that things she feared still happened in the villages though not so much in the cities. The Tribunal was satisfied that if the applicant moved away from her present neighbours she would not be at the same risk of harm as she was in the past. The Tribunal concluded that it was not satisfied that there was a real chance that the applicant would be subject to serious harm in the terms of section 91 of the Migration Act 1958 (this is presumably meant to be a reference to section 91R which was referred to earlier in the Tribunal reasons for decision) should she relocate within Fiji. It was not satisfied that the applicant had a well-founded fear of persecution.
The applicant applied to the Federal Court on 10 February 2003 for review of the Tribunal decision. The matter was transferred to this Court. On 12 May 2003 the applicant filed an amended application. The first ground relied upon is that the Tribunal erred in law in construing the Refugee Convention which resulted in it failing to exercise its jurisdiction under the Migration Act 1958. The particulars of this claim are that the Tribunal found that the applicant feared harm from indigenous Fijians but considered that “with the assistance of her daughter the applicant would be able to relocate within Fiji” and that it erred in considering that Australia was relieved of its protection obligations by imposing financial obligations on the applicant’s daughter, a resident of Australia. It was contended that the Tribunal had regard to an irrelevant consideration when it took into account the possibility that the applicant may be able to obtain financial assistance in Fiji from her daughter. Secondly it was claimed that the Tribunal denied the applicant procedural fairness, the particulars being that it found that the applicant would be able to obtain “the assistance of her daughter” so as to enable her “to relocate within Fiji” but that there was no probative evidence upon which the Tribunal could have found that the applicant would receive sufficient funds from her daughter to be able to relocate safely within Fiji. It was said to be a denial of natural justice to make a positive finding of fact on a critical matter without any probative evidence. These grounds were elaborated on in written and oral submissions.
The applicant relied on a transcript of the Tribunal hearing in support of her claims. In an accompanying affidavit sworn by the transcriber it is stated that some of the tape was inaudible. Where the tape was inaudible the transcript contains a space and four dots. The difficulty the applicant faces in relying on this transcript as a record of what occurred in the hearing, is that there are significant portions of the hearing which are shown as inaudible on the tape including, on a number of occasions, the whole of the question asked by the Tribunal as well as significant parts of the applicant’s responses. While no issue was taken with the correctness of the transcript, as far as it goes, it is clear that it does not contain a complete record of all that occurred in the Tribunal hearing.
The applicant’s contentions relate to the Tribunal’s treatment of relocation. It was submitted that the Tribunal misapplied the law in relation to internal protection or relocation. It was contended that before the Tribunal made its decision the applicant should have been given an opportunity to raise any impediment to relocation and then the Tribunal could have considered such evidence and that in making its finding without considering the reasonableness of relocation the Tribunal failed to exercise its jurisdiction.
In Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 124 ALR 265 the Full Court of the Federal Court considered the concept of relocation. As Black CJ, with whom Whitlam J agreed, stated at p.270:
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.
Once the question of relocation has been raised for the consideration of the Tribunal, it is obliged to give that aspect of the matter proper consideration (Black CJ at p.270). In Randhawa it had been contended that in considering the reasonableness of relocation it was necessary for the decision-maker to address a series of specific matters including the area to which it was contemplated that an applicant could relocate and general lifestyle adjustments that would need to be made by a person who relocated. While Black CJ stated that the practical realities (extending beyond physical or financial barriers to relocation) facing a person who claims to be a refugee must be carefully considered, he agreed 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 specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by the applicant” (at p.270). Hence the decision-maker should consider issues and any impediments to relocation raised by the applicant on the material before it. (Also see Whitlam J at p.280 emphasising that what Black CJ said about the decision-maker’s task being largely determined by the case sought to be made out by an applicant “applies to all aspects of such a case, both personal circumstances and what may be called ‘country conditions’ ”).
It is in this context that Black CJ referred with approval to the expression of this principle in Hathaway, JC The Law of Refugee Status (Toronto, Butterworths, 1991) at page 134 which suggests that it should be asked whether a person can genuinely access domestic protection and whether the reality of protection is meaningful and that “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 recognised”.
The applicant claims that in this case the Tribunal took the general approach that there must be a safe haven in Fiji away from the applicant’s village without giving the issue more specific attention. It was said that the Tribunal should have looked at whether it was reasonable for the applicant to move, given her socio-economic and financial barriers and that it was not reasonable to ask a family member such as her daughter to support her financially and then to assume that this would happen. It was also said that if the reasonableness test was to be applied, it was necessary for there to be probative evidence to support an assumption that relocation was reasonable and, here, evidence to support the finding that the applicant could relocate with the assistance of her daughter. It was submitted that there was no such probative evidence from the applicant in that regard or from her daughter. The only evidence before the Tribunal in this respect was said to be that her daughter had sent her some money and that that money was stolen. It was said that the Tribunal also fell into error in its treatment of this issue by having regard to irrelevant considerations that the daughter had the means and ability to support her mother.
Contrary to the submissions of the applicant, the Tribunal did give the applicant an opportunity to raise any impediment to relocation. The transcript of the Tribunal hearing is incomplete but I accept that, as stated in the Tribunal reasons for decision, the applicant was asked if she could move away from the people who were harassing her. The Tribunal reasons for decision record that the applicant stated that she had moved to a friend’s place but they could not look after her as the friend was moving elsewhere, that her daughter in Australia sometimes sent her money and that she asked her daughter to send her the papers so that she could come to Australia, that her sons did not want her, one being always drunk and with friends and the other married and with children. Insofar as what occurred in the hearing can be deciphered from the incomplete transcript it is consistent with this summary. The transcript indicates that in response to an inaudible question from the Tribunal, the applicant addressed the issue of the possibility of assistance from what appears to be her sons as she refers to “they” having their own families and not being able to look after her, to going sometimes to their places, staying there for some days and then going to the other one’s place for a few days and then that “my daughter used to send some money but sometimes I will get there and be without any money and sometimes not even an envelope. Sometimes open and without money.” Further, although the question is again recorded as inaudible, a response in which the applicant refers to “sometimes it happens …. but it does happen in the villages ….” is consistent with the reasons for decision which record that it was put to the applicant that there was information that the security situation had improved in Fiji and that there had been a decrease in communal strife, in response to which the applicant said that it still happens in the villages though not so much in the cities. The Tribunal asked the applicant about any contact with her sons and she provided an answer consistent with what is recorded in the reasons for decision. There was also an inaudible question put to the applicant following a question about “So you live with your daughter in Australia”. The transcribed responses are incomplete and are recorded as inaudible. Moreover the applicant was assisted by an adviser who, after being asked an inaudible question by the Tribunal, addressed a number of issues in relation to whether relocation was reasonable. The adviser submitted that “it may be unreasonable given the fact that if we look at the applicant’s age, lack of education and social …. and then the fact that she has got this fear that wherever she goes …. Fiji they are still liable to come at the back of her mind”. This is consistent with the Tribunal reasons for decision which record that the adviser suggested that it may be unreasonable to expect the applicant to relocate given her age, lack of education and her mental scars from the earlier harassment and a submission that she would have no government protection. The adviser also indicated that the applicant had no conflict with her children in Fiji and took issue with independent evidence in relation to the situation in Fiji. It has not been established that the Tribunal account of what occurred in the hearing is inaccurate.
On the material before me I am satisfied that the Tribunal did bring the issue of whether it was reasonable for the applicant to relocate to the attention of the applicant in the hearing. The applicant and her adviser raised some impediments in response. It was for the applicant to put forward such material as she wished to have taken into account in relation to this issue. There could be no breach of procedural fairness in the Tribunal then rejecting what she put forward without further reference to her (Kioa v West (1985) 159 CLR 550 at 587 per Mason J). The Tribunal was not under a further obligation to expose its mental processes or preliminary views for comment before making the decision in question or to invite comment on its evaluation of the applicant’s case (Asiamet (No 1) Resources Pty Ltd v FCT (2003) 196 ALR 692 at [79] per Emmett J citing Commissioner for ACT Revenue v Alphanoe Pty Ltd (1994) 49 FCR 576 at 591-592). Critically, the issues or impediments raised by the applicant were dealt with by the decision-maker. In particular the Tribunal dealt with the submission that there would be no government protection and rejected this on the basis of independent country information. It accepted that, consistent with the evidence of the applicant, the things she feared did not happen so much in the cities. It had regard to the difficulties that she had raised, in particular that she would have no-one to look after her as her sons did not want to, her friends could not look after her and her daughter was in Australia. Nonetheless the Tribunal correctly noted that her daughter had assisted the applicant in the past as on the applicant’s own evidence the daughter had sent her money and she supported her in Australia. The Tribunal did not suggest that (despite her age, lack of education and social standing) the applicant would be able to support herself financially, but rather that with the assistance of her daughter the applicant would be able to relocate within Fiji. The Tribunal did consider the reasonableness of relocation. The applicant’s complaint in essence is that the Tribunal made factual findings within its domain that were against the applicant on this issue. This does not establish jurisdictional error.
There was no obligation on the Tribunal to make further inquiries (such as obtaining information from the applicant’s daughter) (MIMIA v Applicant S [2002] FCAFC 244). It considered the case sought to be made by the applicant at the time of the decision. There was material before the Tribunal on which it could conclude that the applicant’s daughter would be able to assist her to relocate within Fiji in the evidence of the applicant that her daughter in Australia had sometimes sent her money and that she supported her in Australia. While there is some lack of specificity in the findings of the Tribunal in this respect, as in Randhawa the context of the generalised character of the applicant’s own material in this respect must also be taken into account. The contention that there was “no probative evidence” to support the finding that the assistance of the daughter would be available to the applicant is not established factually. Further, in addition to the material referred to in relation to the daughter, on the Tribunal findings the applicant would need only to move away from her prior neighbours and the things that she feared did not happen so much in the cities.
The applicant complains that the daughter should have been given an opportunity to put evidence before the Tribunal. She attempted to provide affidavit evidence to this Court of the daughter’s current financial situation. Such evidence was not before the Tribunal and events which have occurred since the Tribunal hearing clearly have no relevance to whether the Tribunal accorded procedural fairness or made a jurisdictional error. The Court cannot have regard to such material in an application for judicial review of this kind (see Chi v Minister for Immigration & Multicultural Affairs [2000] FCA 1352 at [27] per Beaumont J).

Further, while in the response to the Tribunal hearing form while the applicant indicated that she wanted to bring her daughter and adviser to the hearing, she indicated “no” to the question as to whether she wanted the Tribunal to take oral evidence from any witnesses. It is not open to the applicant to now submit that she was denied procedural fairness because the Tribunal did not seek material from her daughter of its volition. There is nothing in the transcript of the Tribunal hearing to suggest that she made any such request of the Tribunal or that the Tribunal undertook to make any such inquiries.
It was also submitted that the Tribunal fell into error in taking into account irrelevant considerations, being that the daughter had the means and ability to support her mother. However assistance that the Tribunal considers is available to an applicant is not irrelevant in the context of considering relocation. In this instance it was material that arose out of information provided by the applicant. It bears upon the Tribunal findings in relation to the reasonableness of relocation. Moreover such material is not an “irrelevant consideration” in the sense considered in Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. (Also see Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24 at 39-41 and Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196 per Allsop J at [79] and cases referred to therein.) Nor has it been established that relevant considerations were not taken into account.
The argument that the Tribunal considered Australia to be relieved of its protection obligations by imposing financial obligations on the applicant’s daughter and that in this way erred in law and exceeded its jurisdiction is misconceived. It assumes a protection obligation when the Tribunal had found none. The Tribunal accepted the likelihood of the daughter assisting the mother. This did not impose any legal obligation or requirement on the daughter. The fact that she is a resident of Australia is neither here nor there as financial assistance, whether it comes from a source within or without the country within which relocation is under consideration, is clearly relevant in a consideration of whether there are impediments such as financial barriers preventing the applicant from relocating as a practical matter.
The applicant argued that there was no probative evidence regarding relocation and the ability of the applicant’s daughter to pay for the relocation and that this constituted a denial of natural justice or other jurisdictional error. It was argued that the Tribunal decision, in particular its finding about the daughter’s ability to assist the applicant to relocate, was unreasonable, illogical or irrational or based on findings or inferences of fact which were not supported by some probative material or logical ground (Re Minister for Immigration & Multicultural Affairs Ex parte Applicant S20/2002 (2003) 198 ALR 59).
In this respect the applicant contended that natural justice requires that the decision to make a finding must be based upon some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory. Counsel for the applicant relied on Mahon v Air New Zealand (1984) AC 808 at 821 in support of this proposition. (Also see Reg. v Deputy Industrial Injuries Commissioner; Ex parte Moore[1985] 1QB 456 at 488 per Diplock CJ.) In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367-368, Deane J referred with approval to such a proposition. He suggested in the context of considering the obligation of a Tribunal to act judicially or to observe the requirements of natural justice or procedural fairness that: “When the process of decision-making need not be and is not disclosed, there will be a discernible breach of such duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernible breach of the duty if findings of fact upon which such a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.”
However His Honour’s remarks were obiter dicta and the majority in Bond did not endorse what Deane J said in this respect. Indeed, as Mason CJ (with whom Brennan J agreed) pointed out in Bond, the approach in the English cases such as Mahon had not been adopted by the High Court (at 357). Further Minister for Immigration & Multicultural Affairs v Rajamanikkan [2002] HCA 32 at [25] – [26] cannot be said to be authority for adoption of the proposition in Mahon as contended by the applicant. Rajamanikkam was concerned not with natural justice but with the scope of the ‘no evidence’ statutory ground of review in the now repealed s476 of the Migration Act (see Kirby J at [100]). Moreover, as Gleeson CJ pointed out, the relevant aspect of natural justice or procedural fairness referred to in Moore is that the decision-maker must “base [a] decision on evidence” and “this does not mean that any administrative decision may be quashed on judicial review if the reviewing court can be persuaded to a different view of the facts” (at [25]–[26]). His Honour cautioned (at [26]) against obliterating the distinction between judicial review on the ground of a failure to comply with the requirements of procedural fairness and merits review. In Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30 at [9] Gleeson CJ did provide some support for the approach taken by Deane J in Bond, in suggesting that irrationality of the kind described by Deane J in Bond may involve non-compliance with the duty to act judicially. However it is important to note that this view was expressed in the context of an indication that to describe a conclusion as illogical may indicate nothing more than a disagreement on the merits and that to show an error of law it “would not suffice to establish some faulty inference of fact” and that “it is often unhelpful to discuss, in the abstract, the legal consequences of irrationality, or illogically, or unreasonableness of some degree. In a context such as the present, it is necessary to identify and characterise the suggested error, and relate it to the legal rubric under which a decision is challenged.” (Also see S20 at [5] and [36] and [69] per McHugh and Gummow JJ).
In SFGB v MIMIA [2003] FCAFC 231 the Full Court of the Federal Court did find a jurisdictional error in circumstances where there was no information before a Tribunal from which it could realistically draw a critical factual conclusion that it drew (in relation to the viability of the Taliban in the particular area in Afghanistan where the applicant lived). The Court did not refer to concepts of procedural fairness or a duty to act judicially but rather referred to the narrower approach of Mason CJ in Bond at 355-357 stating: “If the Tribunal makes a finding and that finding is a critical step in its ultimate conclusion and there is no evidence to support that finding then this may well constitute a jurisdictional error”.
However, whether looked at in terms of natural justice or other jurisdictional error, in this case there was a factual ground on which the Tribunal could find that the applicant’s daughter’s could assist her mother. This is not a case in which there was no evidence to support the Tribunal findings regarding relocation and the ability of the applicant’s daughter to ‘assist’ her (and note that the Tribunal did not go so far as to find, as the applicant submits, that the daughter would ‘pay for’ the relocation). The applicant’s daughter had sent her money, albeit that at the time at which the applicant complained of mistreatment, the money or ‘envelope’ was not always received. The applicant’s daughter had supported her in Australia. Also, on the Tribunal findings the applicant would need only to move away from her prior neighbours and on her own evidence the things she feared did not happen so much in the cities. There was probative evidence to support the Tribunal findings. As there was material before the Tribunal, it was then for the Tribunal to determine the weight it gave to particular aspects of that evidence. There is no jurisdictional error in the Tribunal making a wrong finding of fact (unless the relevant fact can be identified as a ‘jurisdictional fact’, Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35 – 36 and SFGB at [20]).
This was not a case where the wrong test was applied or where it was shown that the Tribunal’s power was exercised for some “dominating, actuating reason … outside the scope of the purpose of the enactment”. It was for the Tribunal “to give effect to (its) justice of the case” (Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59) at [69] per McHugh and Gummow JJ). As French and Hill JJ said in MIMIA v W306/01A [2003] FCAFC 208 at [45] “There is a substantial divide between irrationality and want of logic and reasoning on the one hand and reviewable error on the other”. In MIMIA v Al-Miahi [2001] FCA 744 the Full Court had said at [34]:
A party does not establish an error of law by showing that the decision-maker inferred the existence of a particular fact by a faulty process, for example by engaging in an illogical course of reasoning. Thus, at common law, want of logic is not synonymous with error of law. So long as the particular inference is reasonably open, even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place – Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 355-6
While the Court conceded in W306/1A that this did not exclude the possibility that an error of logic may, in the circumstances of a particular case, point to an underlying error of law, this is not such a case. Moreover in NACB v MIMIA [2003] FCAFC 235 it was suggested that there was nothing in the remarks in S20 that would warrant a departure from the view that ‘illogical reasoning does not of itself constitute an error of law or jurisdictional error’ (at [29]).
In this case the inferences drawn by the Tribunal from the applicant’s evidence about her daughter and on other matters relating to relocation were reasonably open to the Tribunal. There was some evidence to support the Tribunal finding that the applicant could relocate with the assistance of her daughter. This is not a case where an inference can be drawn that the Tribunal was applying the wrong test or was not really satisfied of the requisite matters (S20 at [36] – [37] and [62] – [67], [76] and [90] – [91]). The conclusion on the evidence is not so unreasonable or the material relied on so inadequate that such an inference should be drawn. It has not been established that there is an error of logic or irrationality or unreasonableness in circumstances which give rise to a jurisdictional error.
The applicant did not cite any Australian case which applied the Mahon formulation of natural justice. The authorities in relation to the ‘no evidence’ ground do not define the extent of natural justice. The Australian approach to illogicality in S20 suggests a somewhat narrower approach than that contended for by the applicant. However, even on the approach suggested by Deane J in Bond, no denial of natural justice is established in this case. It has not been shown that the findings of fact on which the decision was based were unsupported by probative material (there being material in the applicant’s own evidence about the past and present assistance by her daughter) or that inferences of fact on which the decision was based (in connection with the determination of reasonableness of relocation) could not reasonably be drawn from such findings of fact. In these circumstances, where the applicant was aware of the importance of the issue of the reasonableness of relocation (as evidenced by her adviser’s submissions) and was given an opportunity to make claims or provide evidence in relation to any impediments to relocation and where no evidence was put before the Tribunal to suggest that the daughter may not be able to continue to provide financial assistance to her mother, then, bearing in mind that the extent of the decision-maker’s task is largely determined by the case sought to be made out by the applicant (Randhawa), no denial of procedural fairness is established in the Tribunal’s decision-making process.
Nor is any other jurisdictional error apparent. As no jurisdictional error has been established the application must be dismissed.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 24 March 2004