SZERD v Minister for Immigration - [2006] FMCA 15

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZERD & ANOR v MINISTER FOR IMMIGRATION
& ANOR

[2006] FMCA 15

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection (Class XA) visa – no reviewable error – application dismissed.

Migration Act 1958 (Cth), ss.91X, 422B, 424A, 474
Judiciary Act 1903 (Cth), s.39B

SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs [2005] HCA 24
Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2
Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1
Craig v State of South Australia (1995) 184 CLR 163
Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26
Minister for Immigration & Multicultural Affairs v Jia (2001) 205 CLR 501
Tin Shwe v Minister for Immigration & Multicultural Affairs [2000] FCA 988
Yit v Minister for Immigration & Multicultural Affairs [2000] FCA 885
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 131 FCR 102
SCAA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 668
WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 286
NAOA v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 241
Minister for Immigration & Multicultural & Indigenous Affairsv NAMW [2004] FCAFC 264
Refugee Review Tribunal, Re; Ex parte H (2001) 75 ALJR 982
Livesey v New South Wales Bar Association (1983) 151 CLR 288
NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (2004) 214 ALR 264
Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (2003) 198 ALR 59
VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 82
Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1493
Applicant W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs
Randhawa v Minister for Local Government & Ethnic Affairs (1994) 52 FCR 437

Applicants:

SZERD and SZERE

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File No:

SYG3285 of 2004

Delivered on:

27 January 2006

Delivered at:

Sydney

Hearing date:

8 December 2005

Judgment of:

Lloyd-Jones FM

REPRESENTATION

The applicants appeared in person with the aid of a Nepalese interpreter.

Advocate for the Respondent:

Ms A Alex

Solicitors for the Respondent:

Phillips Fox

ORDERS

The Refugee Review Tribunal is joined as second respondent.
The application is dismissed.
The applicants are to pay the first respondent’s costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG3285 of 2004

SZERD and SZERE

Applicants

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The proceedings

These proceedings were commenced by an application under s.39B of the Judiciary Act 1903 (Cth), filed in the Sydney Registry of the Federal Magistrates Court of Australia on 8 November 2004 for a judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 27 September 2004 and handed down on

20 October 2004, affirming the decision of the delegate of the respondent (“the delegate”) made on 2 April 2004 to refuse to grant the applicants protection (Class XA) visas. The applicants seek relief in the form of constitutional writs against the decision of the Tribunal.
The applicants in these proceedings are not to be identified pursuant to provisions of s.91X of the Migration Act 1958 (Cth) (“the Act”) and has been given the pseudonym “SZERD” (applicant husband) and “SZERE” (applicant wife).
Consistent with the High Court decision in SAAP & Anor v Minister for Immigration & Multicultural & Indigenous Affairs I join the Tribunal as a party in these proceedings. Any reference to the respondent in these Reasons for Judgment is to the Minister for Immigration & Multicultural & Indigenous Affairs; the first respondent.

Background

The applicants are husband and wife and are citizens of Nepal. They arrived in Australia on 7 December 2003. On 9 January 2004 they lodged an application for protection (Class XA) visas with the Department of Immigration & Multicultural & Indigenous Affairs (“the Department”) under the Act (Court Book pp.3-55) (“CB”). On 2 April 2004 the delegate refused to grant protection visas (CB pp.58-65) and on 12 April 2004 the applicants applied to the Tribunal for a review of the delegate’s decision (CB pp.66-69).
In the primary visa application, the applicant husband stated that he is a Nepalese citizen and a retired army officer. He stated he left Nepal because there was no protection of people’s life and rights in his country. The applicant husband stated that there had been nearly nine years of conflict between Maoists and the Nepalese Government causing the loss of many lives and the destruction of the economic infrastructure of his country. He stated that frequent violence, chaos and instability were the norm nowadays and he had lost his safety and security in the country. The applicant husband stated that torture and unacceptable activities had made his family and his life miserable and eventually compelled him to flee from Nepal (CB pp.93-94).
The applicant husband claimed the only reason he had been specially wanted by the Maoists was because he had served in the Indian Army for more than 18 years as an Army Officer and had acquired special skills in face to face combat and ammunition repairing. The applicant husband also stated he had achieved operation of a special kind of weapon and artillery in the war during his service with the Indian Army in the “Kashmir frontier” (CB p.94). The applicant husband stated he joined the Indian Army in 1972 and served until 1990. He stated he was retired in 1990 and returned to his home country of Nepal and started his own business and was living happily with his wife and children. The applicant husband stated that he received a pension for his service in the Indian Army (CB p.95).

The Tribunal’s findings and reasons

A convenient summary of the Tribunal’s reasons was contained in the respondents’ written submissions prepared by Ms A Alex and

I adopt paragraphs 9-12 of those submissions for the purpose of this judgment:
[9]The RRT found that the applicant had not been persecuted in Nepal. It accepted that he might have been asked to assist the Maoists and that he had refused. However, it found that:
[9.1]he then spent 18 months in Nepal during which time he could have been harmed by them if they wanted to;
[9.2]he did not sell his business or house until four months before leaving for Australia and the Maoists could have found him easily.
[10]These conclusions were discussed with the applicant at the hearing, who claimed that he kept moving around which was why he had not been harmed.
[11]The RRT also found that the applicant could move to India if he feared persecution in Nepal. It did not accept the applicant’s claims that the Maoists would pursue him across India to punish him for refusing to help them. The RRT considered country information that indicated there was no evidence that Nepalese Maoists had harmed Nepalese in India. This country information was discussed with the applicant at the hearing.
[12]The RRT considered that, because the applicants had previously resided in India, any hardship they might find in living in India would not be an unreasonable sacrifice in order to avoid any harm they feared in Nepal.

Application for review of the Tribunal’s decision

On 8 November 2004 the applicants filed an application for review under s.39B of the Judiciary Act 1903 (Cth) setting out the following grounds:
1.The Tribunal denied the applicant natural justice in determining the appeal in that the Tribunal was biased, or, in the alternative, there was an apprehension of bias in the making of the purported decision such that it vitiated the said purported decision.
2.The tribunal is a neutral body which is in the business of considering any refugee case in light of the authentic information and reliable witnesses and should be unbiased. The tribunal was completely biased on so called independent country information on Nepal and the DFAT report. It is matter of regret that the tribunal was not free from biasness and prejudice while reviewed by claim. As such the applicant was deprived from the natural justice.
3.The tribunal has totally ignored the applicant’s situation back in Nepal and in India, it more relies on the delegate’s decision. Therefore it is cleared that the tribunal has failed to have a fresh look in to his protection visa claim; and to take the relevant legal issues in to consideration during reviewing his appeal application. The tribunal failed to maintain their procedural fairness.
4.The tribunal in their decision has admitted that the Maoist rebels were located in India and were deported back to Nepal (Page 7, 3rd line from the bottom). Which means the Maoist rebel can roam around India like millions other Nepalese there. Then obviously it is a grave concern for the applicants to live anywhere in India without harm or unnoticed by the Maoist agents’ there. Under the 1950 treaty between the Kingdom of Nepal and India, the Nepalese has free access to India but the treaty did not explain much of the Nepalese employment and other natural rights which an Indian can enjoy. The tribunal should have full grasp of the treaty before it raise the issue in the hearing. The tribunal failed to send a copy of the treaty to the applicant to comment on prior to the hearing.
5.The tribunal has ignored the reality of the statistics and did not check how many of the ‘so called’ eight million Nepalese in India are employed in army, prostitutes and engaged in various low-graded professions. The number mentioned is totally wrong as there is no proper record of movements of two countries citizen to each other’s land.
6.The applicant claims that the tribunal has wrongly weigh and judged his claim and did not have full grasp of the definition of the refugee declared and later amended by the UN convention. The applicant wishes to draw the Hon F.M. attention to the “Findings and Reasons” of the RRT decision. (Errors included)
On 22 March 2005 the applicants filed an amended application which took the form of an application and written submissions combined in the same documents. This was also supplemented by substantial extracts from various decisions in support of the applicants’ arguments. A number of the grounds were repeated and the numbering system adopted by the author makes it difficult to follow. However, the amended application alleged a denial of natural justice, bias and apprehended bias, failure to disclose the particular construction the Tribunal gave to information from different independent sources (s.424A), denial of procedural fairness and a contention that internal relocation was not an option for the applicants.

The law

The present application is affected by the privative clause contained in s.474 of the Act. The High Court in Plaintiff S157/2002 v Commonwealth of Australia (“Plaintiff S157/2002”) and Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte Applicants S134/2002 (“Applicant S134/2002”), held in broad terms that the privative clause does not protect Tribunal decisions that are affected by jurisdictional error or bad faith: Plaintiff S157/2002 at [76] and Applicant S134/2002 at [15].
An administrative tribunal exceeds its powers and thus commits a jurisdictional error if it identifies a wrong issue, asks a wrong question, ignores relevant material, relies on irrelevant material or, in some circumstances, makes an erroneous finding or reaches a mistake and conclusion in the way that affects the exercise or purported exercise of the Tribunal’s power: Craig v State of South Australia per McHugh, Gummow and Hayne JJ at [179] and Dranichnikov v Minister for Immigration & Multicultural Affairs.

Reasons

The applicants sought leave to file a further amended application during the hearing. The applicants had been denied the opportunity to file this document in the Registry on 2 December 2005 and were now seeking leave to file the document in Court. On examination, the document the applicants were attempting to file was in fact a copy of the amended application filed on 22 March 2005. The applicants indicated that they had forwarded a copy of the documentation to the solicitors for the respondents as they were the written submissions they had been ordered to file fourteen days prior to the hearing. When the applicants were invited to make oral submissions in support of their application, the applicant husband indicated he would rely upon the written submissions and had nothing further to say to the Court.
Ms Alex for the respondents filed written submissions prior to the hearing which were supported by a list of authorities and supplemented by oral submissions during the hearing. The most serious of the grounds pleaded by the applicants were those of bias and apprehended bias which appeared several times in the applicants’ submissions. Actual bias can be said to exist where the Tribunal member has a pre-existing state of mind which disabled him from understanding or rendering himself unwilling to understand any proper evaluation of the relevant material before him which was relevant to the decision to be made: Minister for Immigration & Multicultural Affairs v Jia (“Jia”) per Gleeson CJ and Gummow J at [35] and [72]. Actual bias may be said to exist where the Tribunal member is so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or argument may be presented: Jia at [71] and [72]. A party alleging actual bias on a decision maker’s part carries a heavy onus and must be clearly proved: Jia per Gleeson CJ and Gummow J at [69]. The existence of actual bias may be inferred from facts and circumstances but caution should be exercised, in the absence of evidence of partisanship or hostility, before inferring bias from factual errors or faulty reasons on the part of the Tribunal member: Tin Shwe v Minister for Immigration & Multicultural Affairs per Sackville J at [27]; Yit v Minister for Immigration & Multicultural Affairs per Sackville J at [36]. Further, a case of actual bias is seldom made out by reference solely to the reasons for the decision and no inference of bias or prejudgment can be drawn from the mere fact that the adverse findings in the Tribunal’s reasons: VFAB v Minister for Immigration & Multicultural & Indigenous Affairs per Kenny J at [21]; SCAA v Minister for Immigration & Multicultural & Indigenous Affairs per von Doussa J at [38]; WABC of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs (“WABC of 2002”) per Hill, Tamberlin and Hely JJ at [3].
In the present case, there is no transcript of the Tribunal hearing before the Court. On that basis it is not open to this Court to make findings or draw inferences as to the conduct of the Tribunal hearing: NAOA v Minister for Immigration & Multicultural & Indigenous Affairs per Beaumont, Merkel and Hely JJ at [21]; Minister for Immigration & Multicultural & Indigenous Affairsv NAMW per Beaumont, Merkel and Hely JJ at [121]-[122]. The applicants’ claim in respect of the Tribunal hearing cannot succeed without a transcript being in evidence: WABC of 2002 at [3]. It is acknowledged the difficulty that a self represented litigant faces in this respect. However, at the first Court date hearing the applicants were provided with a Registrar’s information sheet which contained information regarding the Tribunal’s hearing tapes. This information was explained to the applicants by a Nepalese interpreter who signed the information sheet with the applicants to indicate the contents of the information sheet had been interpreted and explained to the applicants. The applicants also indicated a desire to participate in the Pilot RRT Legal Advice Scheme (NSW) and the Court file indicates a panel adviser was allocated to the applicants and a conference had taken place to advise the applicants in the preparation of the matter for hearing. The applicants have not discharged the onus of showing the Tribunal’s reasons demonstrate actual bias.
Apprehended bias will exist where a fair-minded observer, who is properly informed as to the nature of the proceedings, the matters in issue and the conduct of the Tribunal, might reasonably apprehend that the Tribunal member might not bring an impartial mind to the resolution of the question to be decided: Refugee Review Tribunal, Re; Ex parte H (“Ex parte H”) at [27]; Livesey v New South Wales Bar Association at 293-294. Examples of such apprehended bias are where:
a)The applicant has been overborne or intimidated by the Tribunal: Ex parte H at [31].
b)Fact finding of the Tribunal was conducted in a manner which was:
i)substantially unreasoned;
ii)in the nature of mere assertion that lacked rational or reasoned foundation;
iii)at times plainly and ex facie wrong; and
iv)selective of material going one way: NADH of 2001 v Minister for Immigration & Multicultural & Indigenous Affairs (“NADH”) at [115].
A determination as to whether an administrative decision is affected by apprehended bias should be informed by the following considerations:
a)Natural justice does not require the Tribunal member’s mind to be absent of any predisposition or inclination for, or against, an argument or conclusion. All that is required is for the Tribunal member to be open to persuasion: Jia at [72] and [186].
b)Apprehended bias, in the context of an administrative decision maker, is not attended with the strictures that apply in the case of judicial prejudgment: Jia at [179]-[187]; [244]-[245]; NADH at [19]. In NADH Allsop J (Moore and Tamberlin JJ agreeing) described this difference as follows:
“The tribunal does not administer public justice. The elements which affect the public confidence in the adjudication of disputes by an independent and impartial arm of government (in the broad sense) and which may be seen to inform what might be said to be freestanding norms of conduct and behaviour by judges conducting public hearings are not necessarily as easily transposable as strict obligations of administrative decision-makers acting in private. The tribunal here must investigate the facts for itself unaided by counsel presenting the parties’ cases, to the degree and extent it thinks appropriate. The tribunal which has to reach a state of satisfaction may want to test and probe a recounted history. It may have particular matters troubling it for resolution, which require questioning and expressions of doubt which are entirely appropriate, but which if undertaken or said by a judge in open court in adversary litigation might give rise to an apprehension of a lack of impartiality.”
c)Where credibility is in issue, the Tribunal member will necessarily have to test the evidence presented – often vigorously: Ex parte H at [30]. The requirements of procedural fairness will often require that the applicant be plainly confronted with matters which bear adversely on their credit or which bring their account into question. Further, the decision maker’s assessment of the applicant’s credit will often depend upon the demeanour of the witness and the manner in which they give evidence: Ex parte H at [34].
d)Bias does not necessarily arise from illogical, irrational decision-making or inferences: Minister for Immigration and Multicultural Affairs, Re; Ex parte Applicant S20/2002 (“Applicant S20/2002”) at [52], [75], [99]-[101]. Further, a manifestly defective or illogical approach to the consideration of evidence, and even irrationality in the reasons for a conclusion, may create an impression of confusion, lack of care or incompetence. But such an approach, without more, does not necessarily demonstrate apprehended bias: Applicant S20/2002 at [101] and [136].]

A fair minded lay observer, properly informed as to the nature of the proceedings and matters in issue and the conduct of the Tribunal would not apprehend that the Tribunal member may not have brought an impartial mind to the assessment of the applicants’ claim.
It was legitimate for the Tribunal to question the applicant husband as to his claims, including testing and probing the applicant husband about his 18 months in Nepal after being contacted by telephone by someone speaking on behalf of Ram Bahadur Thapa, the Maoist leader demanding his assistance in training Maoist rebels, an issue which arose from evidentiary material which had been provided in support of the applicants’ claim. This questioning appears to be a means by which the Tribunal tested the credibility of the applicant husband and the plausibility of his claims. In any case, even if the purpose of the questioning may appear to lack relevance to the applicants’ claim or to have the appearance of strange logic, the questioning does not, without more, give rise to an inference that the Tribunal’s decision was affected by apprehended bias. An illogical or defective approach to this consideration of evidence does not in itself demonstrate apprehended bias. The applicants have not discharged the onus of showing that the Tribunal’s reasons demonstrate apprehended bias. In the circumstances, the claim of actual bias and apprehended bias cannot be sustained.
The second ground contained in the applicants’ pleadings and submissions claimed a failure to disclose the particular construction that the Tribunal gave to information from different independent sources. The Tribunal, in its decision, sets out the details of a number of articles that it referred to from various sources covering the area of experience of former soldiers who had served with the Indian Army returning to Nepal and their interaction with Maoist rebels in that country. None of the articles contained in the Tribunal’s decision make specific reference to the applicant husband but are general in nature and recount different experiences of former soldiers that are typical of the circumstances that exist. In the absence of precise pleading particularisation, the claim of the applicants in this ground is not clear. However, there is no general proposition that the failure of the Tribunal to put adverse country information to the applicants, on its own, amounts to a breach of natural justice: VHAP of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs at [17], [27]-[28]:
We agree with Allsop J that the contention on behalf of the Minister that the trial Judge was in error in finding that there was any operative breach of the rules of natural justice as the country information related to issues which were clearly on the table to be addressed should be upheld for the reasons given by his Honour. It is not necessary to explore separately how a failure by the Tribunal to provide general country information can be regarded as a breach of the implied duty of natural justice in the face of the express provisions of s 424A of the Act. (cf NAAX v Minister for Immigration and Multicultural Affairs (2002) 119 FCR 312 at [47]–[82]. The disagreement on appeal was as to the conclusion at [83] – see NAAV v Minister for Immigration and Multicultural and Indigenous Affairs (2002) 123 FCR 298 per Wilcox J at [320], per French J at [555] and von Doussa J at [648]. The decision of the High Court in Muin would now need to be taken into account.)
Natural justice and the analysis of whether, in any case, it was afforded is not a process of syllogistic reasoning. One does not approach it thus: the person is entitled to adverse material, this material was relied on in reaching an adverse result, that makes it adverse material, it was not provided in terms, therefore there has been a failure to afford natural justice.
Natural justice is ultimately a question of fairness. The appellant here came to the Tribunal armed with her material about her country of origin in order to persuade the Tribunal to reach a state of satisfaction about her, China, and her future: that she had a well-founded fear of persecution for a Convention reason should she be required to return to China. In order to perform the task required of it by ss 36 and 65 of the Migration Act 1958, the Tribunal was required to inform and educate itself about China generally, and about aspects of Chinese life and affairs pertinent to the appellant’s claims. In so analysing that material the Tribunal might form a view about the appellant or her version of events, which fairness dictated, must be raised. That was done here. The Tribunal will often have a store of experience and knowledge about the country in question without the need for specific reference to material. Sometimes, as here, it will reach for specific material for assistance. In doing so it was only informing itself of matters against which to assess the claims of the appellant. If, as here, subjects of concern are raised, I do not see how fairness requires provision of the specific text of country information seen to be of relevance.
On 25 May 2004 the Tribunal forwarded the applicants a letter and information concerning the Treaty of Peace and Friendship signed by India and Nepal in 1950 and the operation of that agreement permitting Nepalese citizens to enter and reside in India (CB pp.75-78). The Tribunal requested the applicants comment on the information that was enclosed with their letter. The Tribunal’s letter also indicated that, subject to any comments made by the applicants, the content of the country information may be the reason or part of the reason for deciding whether the applicants were entitled to protection visas. Further, the Tribunal pointed out that the information was relevant to its assessment of the applicants’ credibility. The letter invited the applicants to comment on the material at a Tribunal hearing and the time and date of the hearing was specified within the body of the letter. The information sought in respect of this independent country information focussed on the issue of relocation of the applicants to India as a possible avenue to avoid conflict with the Maoist rebels operating in Nepal. The Tribunal, by providing the applicants with this independent country information, complied with the requirement to advise the applicants of any adverse conclusion which could be arrived at and which would not be obviously open on the known material. Subject to these qualifications however, a decision maker is not obliged to expose his or her mental process or provisional views to comment before making a decision on the question: Commissioner of Australian Capital Territory Revenue v Alphaone Pty Ltd per Northrup, Miles and French JJ at 592.
In the fourth item of the applicants’ pleadings, the applicants complained that the Tribunal failed to supply a copy of the treaty, being the Treaty of Peace and Friendship signed by India and Nepal in 1950. There does not appear to be any dispute in respect of this issue. However, the Tribunal, in its letter to the applicants dated 25 May 2004, provided an extract from a DFAT document, CIR No. 329/02 dated 24 October 2002, which raised four specific questions and attached appropriate answers specific to the content of the Treaty and its operation (CB pp.77-78). The Tribunal indicated to the applicants that it sought the applicants’ comments on the questions and answers as the issues raised in the document were a basis for the Tribunal’s assessment of the applicants’ credibility and these were the issues the Tribunal was taking into account in its decision making process. Clearly these were the issues contained in the 1950 Treaty that were directly relevant to the applicants and their circumstances however the contents of the DFAT document satisfies the requirement of s.424A of the Act.
The applicants’ claim that the Tribunal failed to disclose the particular construction it gave information from different independent sources does not extend to subjective views in the mind of the Tribunal member of the evidence when undertaking the assessment of the applicants’ credibility: SZBDF v Minister for Immigration & Multicultural & Indigenous Affairs per Branson at [10]:
“… it is necessary to draw a careful distinction between subjective thought processes of the Tribunal and the information that has given rise to those thought processes. Section 424A says nothing at all about the giving of particulars of thought processes. The requirement to give particulars of information imposed by subs 424A(1) does not reach to information of the kind identified in subs 424A(3). For this reason the Tribunal’s thought processes concerning information of a kind identified in subs 424A(3) cannot transform that information into information to which subs 424A(1) applies.”
In respect of the applicants’ claim that they were denied natural justice, the Tribunal’s decision under review was made after 4 July 2002. Consequently, s.422B, which appears in Division 4 of the Act, applies. Subsection 422B(1) provides:
“This Division is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.”
In the absence of any specific pleading and particulars, it is not immediately apparent what provisions of Division 4 of Part 7 of the Act were not complied with by the Tribunal in the conduct of the hearing or associated activities required under the Division. The structure of the amended application suggests the applicants are claiming the existence of bias or apprehension of bias or the disclosure of the reasoning process adopted by the Tribunal member amounted to a denial of natural justice or procedural fairness. The nature of the applicants’ complaint is apparent although the use of the terminology does not accord with the normal usage applied to judicial review of an administrative decision. In the absence of any evidence to the contrary, the Tribunal appears to have complied with the requirements of Division 4 of Part 7 of the Act. Consequently, this ground cannot be sustained.
The remaining category of jurisdictional error alleged by the applicants relates to internal relocation of the applicants. The relocation being proposed was not one of internal relocation but relocation to India. This is permitted under the 1950 agreement between India and Nepal which allows citizens of Nepal the opportunity to settle in the country of India subject to only minor border transfer regulations in respect of identification documentation. The applicants have mounted an argument which in effect ignores the boundaries between the two countries and treats Nepal as a part of the subcontinent of India, citing the relevant ease of the 8 million refugees in India as being a cover for illegal activities of the Maoist rebels to pursue their activities freely within India.
In reaching its decision that it was a viable option for the applicants to relocate to India, the Tribunal considered various reports prepared by independent agencies as to the relative safety of Nepalese residing in or obtaining citizenship in India. The Tribunal also considered the steps taken by the Indian Government to remove Maoist rebels to Nepal in circumstances where they had been found to be operating within India. The further consideration of the Tribunal member was that the applicant husband had been a member of the Indian Army and during the time of his service had been resident in the Indian cities of New Delhi, Calcutta and Mumbai, all of which were located a considerable distance from Nepal. In the Tribunal’s “Findings and Reasons”, the following comment was made in respect of the applicants’ relocation within India:
“The Tribunal finds as far-fetched, and does not accept, his claim that Maoists would pursue him across the length and breadth of India to punish him for refusing to help them. Indeed, the Tribunal has found no independent evidence that Nepalese Maoists harm Nepalese in India.
The Tribunal notes that the right to live in India is currently being exercised by some eight million Nepalese. The Tribunal finds that, given the applicants have previously lived in India, any hardship they might find in living in India would not be an unreasonable sacrifice in order to avoid any harm they fear of living in Nepal.” (CB p.107)
A fair reading of the Tribunal’s reasons shows that it weighed up the applicants’ evidence but chose to accept the independent information about relocation in India. The Tribunal can be seen to have worked on the assumption that the applicant husband had a well founded fear of persecution if he remained in that part of Nepal and that the applicant husband was known or could be identified as being a past member of the Indian Army. It then turned to be a question of the reasonableness of expecting the applicants to relocate to India. A fair reading of the Tribunal’s reasons makes it clear that it chose to accept the independent country information available to it over the assertion and information put forward by and on behalf of the applicants: Applicant W404/01A of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs per French, Lee and Carr JJ.
In Randhawa v Minister for Local Government & Ethnic Affairs (“Randhawa”) at page 442 the Court laid down the “reasonableness” test with Black CJ noting that the reasonableness principle has been implicitly recognised in the UNHCR Handbook on Procedures and Criteria for Determining Refugee States (“the Handbook”). Paragraph 91 of the Handbook states:
"The fear of being persecuted need not always extend to the whole territory of the refugee’s country of nationality. Thus in ethnic clashes or in cases of grave disturbances involving civil war conditions, persecution of a specific ethnic or national group may occur in only one part of the country. In such situations, a person will not be excluded from refugee status merely because he could have sought refuge in another part of the same country, if under all the circumstances it would not have been reasonable to expect him to do so.”
In Randhawa Black CJ held that given the humanitarian aims of the Convention, the question to be asked is not merely whether an applicant could relocate to another area, but whether or not he or she could “reasonably be expected to do so”. His Honour stated at p.442:
“… a person’s fear of persecution in relation to that country [of nationality] will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.”
His Honour, Beaumont J agreed that relocation must be a reasonable option at p.445:
“That is to say, if relocation is, in the particular circumstances, an unreasonable option, it should not be taken into account as an answer to a claim of persecution.”
If it is not reasonable for a person who has a well founded fear in a part of the country to relocate to another part, then a person’s fear of persecution in relation to the country as a whole is well founded. Alternatively, if it is reasonable for the applicant to relocate to another part of the country, then the applicant’s fear is not well founded. The 1950 agreement between India and Nepal allowing citizens of Nepal the opportunity to settle in the country of India enabled this principle to be applied.
India is a vast and populus country (of over 1 billion people) whose citizens have the right to move freely throughout its entirety, to reside and settle in any part of its territory and to practise any profession, or to carry on any occupation, trade or business. Furthermore, the independent evidence suggests that the constitution provides for freedom of religion and that this right is respected in practice.

Conclusion

The applicants in these proceedings have filed a lengthy and detailed amended application incorporating supporting submissions challenging the decision of the Tribunal. The grounds of review are not clearly differentiated and in part the issues overlap. However, the claims of jurisdictional error of the administrative decision made by the Tribunal cannot be sustained. The applicants’ claim should be dismissed.
I am satisfied that an order for costs should be made in this matter.

I order the applicant to pay the first respondent’s costs and disbursements of and incidental to the application.

I certify that the preceding thirty-four (34) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 27 January 2006