SZFDV v MIAC

Case [2007] HCA 41


HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, CALLINAN AND CRENNAN JJ

SZFDV   APPELLANT

AND

MINISTER FOR IMMIGRATION

AND CITIZENSHIP & ANOR  RESPONDENTS

SZFDV v Minister for Immigration and Citizenship
[2007] HCA 41
30 August 2007
S61/2007

ORDER

Appeal dismissed with costs.

On appeal from the Federal Court of Australia

Representation

J T Gleeson SC with N J Owens for the appellant (instructed by Corrs Chambers Westgarth)

S J Gageler SC with P S Braham and T Reilly for the first respondent (instructed by DLA Phillips Fox)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SZFDV v Minister for Immigration and Citizenship

Immigration – Refugees – The appellant was an Indian national who faced persecution in his home region on account of his political beliefs – Whether the principle of internal relocation is consistent with the Convention Relating to the Status of Refugees – Whether the Refugee Review Tribunal erred in holding that it was reasonable for the appellant to relocate elsewhere in India.

Immigration – Refugees – Well-founded fear of persecution – Whether a well-founded fear of persecution may be confined to a particular region of a country – Whether persecution may reasonably be avoided by relocation – Relevance of practicability – Relevance of territorial distinctions.

Immigration – Refugees – See SZATV v Minister for Immigration and Citizenship.

Words and Phrases –"practicable", "refugee", "relocation", "well-founded fear of persecution".

Migration Act 1958 (Cth), s 36(2).

Convention Relating to the Status of Refugees, Art 1A(2).

  1. GUMMOW, HAYNE AND CRENNAN JJ.  This appeal from the Federal Court of Australia (whose appellate jurisdiction was exercised by Madgwick J) was heard together with SZATV v Minister for Immigration and Citizenship[1] and the same counsel appeared on each appeal.  These reasons should be read with those in SZATV. 

  2. Madgwick J dismissed an appeal from the dismissal by the Federal Magistrates Court of an application for certiorari to quash a decision of the Refugee Review Tribunal ("the Tribunal") (the second respondent in this Court and a submitting party), for prohibition directed to the Minister (the first respondent in this Court), and for mandamus directing the Tribunal to redetermine according to law the appellant's application for a protection visa. 

  3. The appellant is an Indian national, born at Theni in the State of Tamil Nadu in 1977.  He arrived in Australia on 16 May 2004 and applied for a protection visa.  In his application the appellant gave his religion as "Hindu".  The application was refused by a delegate of the Minister on 11 June 2004 and the Tribunal subsequently affirmed the decision of the delegate.

  4. On 13 October 2004, the appellant attended a hearing conducted by the Tribunal and gave evidence with the assistance of an interpreter.  He had no legal or other representation at the hearing.

  5. The appellant claimed that his father and his family sympathised with the Communist…

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Details
AGLC
SZFDV v MIAC [2007] HCA 41
Case
[2007] HCA 41
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by an Indian national, identified as SZFDV, against a decision of the Federal Court of Australia. The dispute concerned whether the appellant could reasonably relocate within India to avoid persecution based on his political beliefs, a principle known as the internal relocation test, in the context of the Convention Relating to the Status of Refugees.

The central legal issues before the Court were whether the principle of internal relocation is consistent with the Refugees Convention and whether the Refugee Review Tribunal erred in concluding that it was reasonable for the appellant to relocate elsewhere in India. This involved determining whether a well-founded fear of persecution can be confined to a particular region of a country and if persecution may be reasonably avoided by relocation, with a focus on the practicability of such relocation and the relevance of territorial distinctions.

The majority of the High Court, in a joint judgment by Gummow, Hayne, and Crennan JJ, with Callinan J concurring, dismissed the appeal. Their reasoning affirmed the established approach to the internal relocation test, which requires an assessment of whether it is "practicable" for a refugee claimant to relocate to a place of safety within their country of origin. The Court considered that the existing jurisprudence, including the decision in *Appellant S395/2002 v Minister for Immigration and Multicultural Affairs*, did not necessitate a departure from the conventional assessment of relocation. The Court found that the factual findings of the Tribunal supported the conclusion that relocation was a reasonable and practicable option for the appellant. Kirby J dissented.

Orders

Orders of the court

Appeal dismissed with costs (Gummow, Hayne and Crennan in joint judgment;Callinan J joining in orders; Kirby J dissenting)

Background

Background to the litigation

This appeal was heard at the same time as the appeal in SZATV v Minister for Immigration and Citizenship[2]. Like that appeal, this appeal, also from the Federal Court of Australia[3], is designed to permit this Court to elucidate the internal relocation alternative (or principle) ("the relocation test") in the context of the Convention relating to the Status of Refugees, 1951[4] as amended by the Protocol relating to the Status of Refugees, 1967[5] (together "the Refugees Convention"). [2][2007] HCA 40.[3][2005] FCA 1312.[4]Done at Geneva on 28 July 1951: 189 UNTS 150; [1954] ATS 5.[5]Done at New York on 31 January 1967: 606 UNTS 267; [1973] ATS 37.The decisional background Many of the facts relevant to the decision in the appeal are set out in the reasons of Gummow, Hayne and Crennan JJ ("the joint reasons")[6]. Also stated there are passages from the reasons for decision of the Refugee Review Tribunal ("the Tribunal"). In respect of the Tribunal's reasons, the appellant, SZFDV[7], sought judicial review on the basis of alleged jurisdictional error. Such review was refused in the Federal Magistrates Court by Scarlett FM[8]. That refusal was, in turn, confirmed by Madgwick J, exercising the appellate jurisdiction of the Federal Court. [6]Joint reasons at [3]-[10]. [7]The name of the applicant is anonymised in accordance with the Migration Act 1958 (Cth), s 91X.[8][2005] FMCA 908. In dismissing the appeal to the Federal Court and affirming the approach of the Tribunal, Madgwick J referred to his earlier dissenting reasons in the Full Court of the Federal Court in NALZ v Minister for Immigration and Multicultural and Indigenous Affairs[9]. In those reasons, Madgwick J had raised a question as to whether the previous elaboration of the Australian test for decisions in cases where "refugee" status has been refused, on the footing that the applicant could reasonably relocate to a different part of the applicant's country of nationality or habitual residence ("country of nationality")[10], needed to be reconsidered in light of the decision of this Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs[11]. However, conforming in this case to the majority approach in NALZ, Madgwick J proceeded on the basis that he was bound to accept the conclusion that the conventional assessment of relocation was unaffected by the reasoning in S395. [9](2004) 140 FCR 270. See consideration in SZATV [2007] HCA 40 at [91]-[94].[10]As expressed in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.[11](2003) 216 CLR 473. Deciding the appeal on that basis, Madgwick J held that the appeal should be dismissed. He added[12]:"Having regard to the 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."[12][2005] FCA 1312 at [8].Common issues about internal relocation

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GUMMOW, HAYNE AND CRENNAN JJ KIRBY J (dissent) CALLINAN J

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Ratio Decidendi

Legal Principle Established

Established by: GUMMOW, HAYNE AND CRENNAN JJ, CALLINAN J

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