SZATV and SZFDV v MIMIA

[2007] HCATrans 63

[2007] HCATrans 063

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S574 of 2005

B e t w e e n -

SZATV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Office of the Registry
  Sydney  No S495 of 2005

B e t w e e n -

SZFDV

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

Applications for special leave to appeal

GUMMOW J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 FEBRUARY 2007, AT 10.54 AM

Copyright in the High Court of Australia

__________________

MR N.J. OWENS:   If the Court pleases.  I appear for the applicant in both matters.  (instructed by Corrs Chambers Westgarth)

MR T. REILLY:   I appear for the first respondent in SZATV.  (instructed by Australian Government Solicitor)

MR P.S. BRAHAM:   If the Court pleases, I appear for the first respondent in SZFDV.  (instructed by DLA Phillips Fox)

GUMMOW J:   There is a submitting appearance for the second respondent which is the Tribunal, is it not, in both matters?

MR BRAHAM:   That is correct. 

GUMMOW J:   We will be assisted if we hear first from you, Mr Reilly.  Is there any agreement between you and Mr Braham as to who is to carry the major burden on your side?

MR REILLY:   Not really, your Honours, but I am happy to go first if your Honours would like me to.  Your Honours, we have set out in the summary of argument why it is most unlikely that S395 should be read as overruling the internal relocation principle from Randhawa.  That principle is well recognised internationally and would be a radical divergence from internationally accepted refugee principles if it did not exist in Australia.  The other point is that it was not raised below in SZATV except as – originally it was a ground.  It was not pressed because there was Full Court authority to the contrary.  Then on appeal the appellant was unrepresented and the issue was not raised.  So it is not a suitable vehicle, but we say principally the ground has no merit anyway for the reasons given in the written submissions.

MR BRAHAM:   If the Court pleases.  Your Honours, I would like to add one matter particular to the matter in which I appear and one matter of general principle to what Mr Reilly has said.  As to the particular matter, if your Honours turn to the decision of Justice Madgwick at application book page 30, your Honours will see that in paragraph 8 his Honour said ‑ ‑ ‑

GUMMOW J:   Just a moment.  Page?

MR BRAHAM:    Application book 30.  Paragraph 8 of his Honour’s decision.

GUMMOW J:   Yes, he said he was bound by that Full Court decision.

MR BRAHAM:    Yes, but then he said:

Having regard to he way the Tribunal member found the facts in this case, it might well be that, even should another test be applied (namely what would the appellant do if actually returned to India by way of possible relocation), the factual findings would, in any event, mandate the conclusion that he would relocate.

That is, in my submission, a reference to what the Tribunal recorded at page 7 of the application book in the paragraph that commences at about point 35 where the Tribunal records that:

At the Tribunal hearing I put to the applicant that I did not think it plausible he would continue to be targeted by the DMK or the owners of the mill if he were to relocate within India.  Initially the applicant claimed that if someone had advised him of this prior to departing India he would not have departed.  The applicant claimed there was ‘about 25 or 26 states in India and [he] could have gone to any of them.’

The interpretation to be given to that passage, in my submission, is that the applicant, in effect, asserted to the Tribunal that if it were true, what the Tribunal was putting to the applicant, that he could have relocated safely - if that were true he would not have left India.  He would have rather relocated within India.  If that be the position in respect of this applicant, then it does not matter which of the two contended tests for relocation is applied because on either test the decision of the Tribunal would be correct.  That is to say, not only is it reasonable to expect this applicant to relocate but the applicant indicated that if returned to India under those circumstances – that is to say the circumstances found by the Tribunal to exist – he would in fact have relocated.  That is the matter of particularity.

As to the matter of general principle, it is our submission that there is a distinction to be drawn between the error identified in S395 and the asserted error with the relocation test as formulated in Randhawa.  The distinction is this, the error identified in S395 was the requirement, as it were, on an applicant to avoid persecution by taking steps when returned to his place of habitual residence – a requirement to avoid persecution by seeking to conceal some aspect of his characteristics which would attract persecution.  Here, however, there is no such requirement on an applicant because a person applying for protection under the Convention has already decided to relocate rather than suffer persecution. 

The only question that the internal relocation principle addresses is not whether the person be required to relocate but to where they might be expected to relocate.  So that the error identified in S395, in my respectful submission, does not exist in the decision in Randhawa.  We have pointed in our written outline to the other reasons why special leave ought not be granted.  Randhawa is a decision of as yet unchallenged authority and has been for many years.  There are now three decisions of Full Federal Courts which reconcile Randhawa with the High Court’s decision in S395.  If the Court pleases.

GUMMOW J:   Just a minute.  Are there any more recent decisions at ultimate appellate level in New Zealand, Canada, the United Kingdom or the United States since Randhawa on this so-called relocation principle?

MR BRAHAM:   Yes, there are.  There is a decision in the House of Lords, a recent decision in the case of Januzi v Secretary of State for the Home Department & Ors [2006] UKHL 5. It addresses relocation in terms consistent with Randhawa and refers to it.

HAYNE J:   I do not think we have that, do we? 

MR BRAHAM:    Your Honours do not, no, but I can indicate to your Honours ‑ ‑ ‑

GUMMOW J:   It might have been an idea.

MR BRAHAM:   Yes, your Honour.  I apologise for that and I am content to procure copies but I do not have copies to hand up but I can indicate that the principal speech was given by Lord Bingham of Cornhill and his Lordship noted that the Refugee Convention did not expressly address the situation of a person able to relocate within his country of nationality, but there is some reasoning that separates the identification of that problem and the conclusion, but that the conclusion is to be found in the first limb of Article 1A(2), that is, the well‑founded fear of persecution being the reason why the applicant is unwilling to return to his country of nationality and his Lordship expressed the view that one would not satisfy that criteria if there was some part of the country of habitual residence to which one can safely return.  So the reasons are, in my respectful submission, consistent with the reasons adopted in the Full Court.

GUMMOW J:   Is that the only speech?

MR BRAHAM:   No.  There were consenting speeches and there was another principle ‑ ‑ ‑

HAYNE J:   Did you say there were dissenting speeches?

MR BRAHAM:   No, consenting speeches.  There was a speech by Lord Carswell which reached the same conclusion and agreed with Lord Bingham’s opinion.  There may have been a third speech. 

GUMMOW J:   Anyhow, do not take up further time.

MR BRAHAM:   Yes, I do apologise, your Honours.

GUMMOW J:   Any Canadian decisions in the Supreme Court?

MR BRAHAM:    Not that I am aware of.  Your Honour, there is Ward which was cited in Randhawa.

GUMMOW J:   Yes, I know.  Since Randhawa.

MR BRAHAM:   Not that I am aware of, your Honour.

GUMMOW J:   Thank you.  Yes, we do not need to – I should ask you, Mr Owens, are you familiar with this recent House of Lords case?

MR OWENS:   Yes, your Honour, I am.  The issue in that case was a slightly different one, namely, whether in determining whether it was reasonable to expect someone to relocate one took into account, if I can put it this way, the human rights situation applying in the new place.  The principle was, if you like, assumed to exist.  It is consistent with the argument that I would wish to run to the extent that it locates the principle in the first limb of the definition.  To the extent that it says that the analysis is basically in accordance with Randhawa, the question was really how do you define reasonableness?  It is inconsistent with that but there was no submission put to the House of Lords nor was there any attempt made really to work through the consequences of saying you locate the test in this first branch and what effect does that have in how you take it into account.  I should say my submission is not that the existence of safe areas within the country of nationality is irrelevant.  The submission is simply that you take it into account in a different way, an even less absolute way, than the rule that has been applied in accordance with Randhawa.

GUMMOW J:   Yes, thank you, Mr Owens.  Anything from either counsel on the other side with respect of what Mr Owens has just been saying about the House of Lords case?

MR REILLY:   No, your Honour.

GUMMOW J:   Very well. 

There will be a grant of special leave in these matters which should be listed together.  They will be together a one-day appeal.  We will now adjourn to reconstitute.

AT 11.07 AM THE MATTERS WERE CONCLUDED