NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs

In the matter of NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs, the appellant, a Fijian citizen, appealed against a decision of the Federal Magistrate dismissing her application for judicial review of a decision by the Refugee Review Tribunal to refuse her a protection visa. The appellant claimed to fear persecution from her ethnic Fijian neighbours, who had allegedly attacked and robbed her, among other things. The Tribunal found her claims credible but concluded that it was not unreasonable for her to relocate within Fiji, thereby denying her a protection visa.

The central issue before the court was whether the Tribunal correctly applied the legal test in determining whether it was unreasonable for the appellant to relocate within Fiji. The appellant argued that the Tribunal misconceived the elements of the test, failed to consider all relevant factors, and incorrectly focused on whether her daughter would fund her relocation rather than whether it was reasonable for her to relocate herself.

The court found that the Tribunal had indeed misconceived the test, leading to an incorrect application of the law. The Tribunal failed to consider whether it was positively satisfied that it was reasonable for the appellant to relocate within Fiji. Instead, it set a lower bar by determining only that it was not satisfied that it was unreasonable for her to relocate. Furthermore, the Tribunal did not address all the reasons the appellant provided as to why it should not be reasonable to expect her to relocate, such as her age, lack of education, and mental scars from earlier harassment. Consequently, the court concluded that the Tribunal’s decision did not properly apply the relevant legal test, resulting in an error of law.

The court allowed the appeal, set aside the orders of the Federal Magistrate, and remitted the matter to the Tribunal for reconsideration according to law. The respondent was ordered to pay the appellant’s costs of the appeal and before the Federal Magistrates Court. This outcome highlights the importance of correctly applying the legal test when considering the internal flight alternative in refugee visa applications.