Umerlebee, Mohamad Fajil v The Minister for Immigration and Multicultural Affairs
[1997] FCA 866
•28 August 1997
FEDERAL COURT OF AUSTRALIA
IMMIGRATION - refugees - application for a protection visa - “internal flight” principle - whether evidence before Refugee Review Tribunal to justify a finding that relocation within the country of nationality was reasonable - “substantial justice and the merits of the case”
Migration Act 1958, ss 420, 476
1951 United Nations Convention Relating to the Status of Refugees
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, applied
Eshetu v Minister for Immigration and Multicultural Affairs (1997) 145 ALR 621, considered
MOHAMAD FAJIL UMERLEBEE v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
VG 671 of 1996
MARSHALL J
MELBOURNE
28 AUGUST 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 671 of 1996 ) GENERAL DIVISION )
BETWEEN: MOHAMAD FAJIL UMERLEBEE
ApplicantAND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE DATED: 28 AUGUST 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The application be dismissed.
The applicant pay the respondent’s costs of the proceeding, including reserved costs, if any.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 671 of 1996 ) GENERAL DIVISION )
BETWEEN: MOHAMAD FAJIL UMERLEBEE
ApplicantAND: THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
JUDGE: MARSHALL J PLACE: MELBOURNE DATED: 28 AUGUST 1997
REASONS FOR JUDGMENT
This is an application under Part 8 of the Migration Act 1958 (“the Act”) to review a decision of the Refugee Review Tribunal (“RRT”) that the applicant is not a refugee within the meaning of the 1951 United Nations Convention Relating to the Status of Refugees (“the Convention”) as amended by the 1967 Protocol Relating to the Status of Refugees.
The applicant is a Tamil Muslim from the Eastern Province of Sri Lanka. He left Sri Lanka for Australia on 4 February 1995 holding a student visa. On 18 September 1995 he lodged an application for refugee status claiming a well-founded fear of persecution in the country of his nationality. The RRT accepted that the applicant had a well-founded fear of persecution and did not wish to avail himself of the protection of the country of his nationality. It found that there was a real chance that the applicant would be persecuted for his political opinions if he were to return to his home town in the Eastern Province. In its reasons for decision, the RRT had regard to generally known information about the relationship between the Liberation Tigers of Tamil Eelam (“the LTTE”) and Tamil Muslims. It also had regard to the applicant’s claims about his particular experiences of the LTTE, including the claims that his father had been held by the LTTE and that the LTTE may have harboured suspicions about the applicant himself as he had collaborated with authorities in identifying their members, in finding that there was a real chance that the applicant would be persecuted by the LTTE if he returned to his home town where, it found, the LTTE is still active.
However, the RRT also found that the applicant could safely relocate to Colombo, and that in the circumstances it was reasonable for him to do so. That is, the RRT found that the “internal flight alternative” was available to the applicant. Accordingly, the RRT found that the applicant did not face a real chance of persecution in the country of his nationality and therefore was not a refugee within the meaning of the Convention.
The applicant alleges a judicially reviewable error in that, having found that the test for a well-founded fear of persecution was satisfied, the RRT failed to properly consider whether the applicant was able to safely relocate within the country of his nationality, and failed to properly apply the test set out by the Full Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437.
THE “INTERNAL FLIGHT” PRINCIPLE
The principle of internal flight is usefully set out by his Honour the Chief Justice in Randhawa at 442-443 as follows:
“In the present case the delegate correctly asked whether the appellant’s fear was well-founded in relation to his country of nationality, not simply the region where he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so.
This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person’s fear of persecution in relation to that country 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. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.
Moreover, the range of the realities that may need to be considered on the issue of reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] Imm AR 7. Professor Hathaway...expresses the position thus:
‘The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. 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.’ [Original emphasis.]
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.”
Also apposite are the observations of Beaumont J at 452:
“...the real question for the decision-maker was one of fact, albeit secondary fact, involving a degree of judgment. In this regard, it may be thought, as the Chief Justice pointed out in argument, that the material submitted to the delegate on behalf of the appellant really lacked detail and thus cogency in seeking to explain why it was unreasonable for the appellant to relocate. For instance, no specific facts were sought to be established in terms of his health or otherwise to warrant the conclusion that relocation was an unreasonable option.” [Original emphasis.]
APPLICATION OF RANDHAWA BY THE RRT
The RRT posed the question to be determined by it as whether the applicant could “safely relocate to another part of (Sri Lanka) and if it is reasonable in the circumstances for him to do so”. Mr Rose, counsel for the applicant, raised no issue with the identification of the correct question to be addressed by the RRT. In order to determine whether the applicant was able to safely relocate to Colombo the RRT first considered whether there was a real chance he would suffer persecution in Colombo. Mr Rose submitted that this consideration by the RRT amounted to a reconsideration of the issue as to whether the applicant had a well-founded fear of persecution. I reject that submission. All the RRT was doing in addressing the topic of “persecution in Colombo” was considering the prospect of a safe relocation to Colombo. The RRT held that there was a more than remote possibility that the applicant would be detained for a short period and questioned by the authorities as a person suspected of being an LTTE sympathiser. However, it went on to find that:
“... being questioned or detained for a short period does not amount to a serious penalty or significant detriment or disadvantage in the context of the current Sri Lankan security situation and hence it is not persecution within the meaning of the Convention...The Tribunal does not accept that if he was questioned, he would be suspected by the security forces of being a Tamil Tiger sympathiser. He is a Muslim and this factor and his personal history sets him apart from other young Tamil speaking males from the North or East.”
The RRT also held that the applicant would be able to secure the protection of the authorities against the Tamil Tigers. It stated that it was:
“... satisfied that there is no more than a remote possibility that the police would refuse a request for protection as distinct from accommodation, if the applicant sought this in Colombo.”
NO EVIDENCE
Mr Rose submitted that there was no evidence to support a finding that the police would help the applicant. Section 476(1)(g) of the Act provides for a review of a decision of the RRT on the ground that there was no evidence or other material to justify the making of the decision. However, s 476(4) of the Act provides:
“(4) The ground specified in paragraph (1)(g) is not to be taken to have been made out unless:
(a)the person who made the decision was required by law to reach that decision only if a particular matter was established, and there was no evidence or other material (including facts of which the person was entitled to take notice) from which the person could reasonably be satisfied that the matter was established; or
(b)the person who made the decision based the decision on the existence of a particular fact, and that fact did not exist.”
Mr Gunst, counsel for the respondent Minister (“the Minister”), submitted that there is no particular matter that is required to be established before one can conclude that it is reasonable for a person to relocate within her or his country of origin. I accept that submission.
In any event, I am of the view that it was reasonably open for the RRT to infer that the applicant would be able to avail himself of police protection. In this context it is instructive to note the following observations of the RRT on this issue:
“The applicant claims that when he sought protection from the police in his home town he was refused because he had supported the UNP in the 1994 elections and with the PA government in power, the police were not assisting UNP supporters. The Tribunal notes that the applicant then sought help from a failed PA candidate who was unable to help him but that he did not seek help from the successful candidates who were Muslims. The Tribunal notes that these attempts to secure Government help in enforcing the obligation of the police to protect all citizens, were at best, low keyed. It also notes that they occurred shortly after the General Election and before the Presidential Election in 1994. It further notes that the ‘protection’ sought by the applicant was the opportunity to live at the police station as he had previously done.”
The RRT then addressed the issue as to whether it would be reasonable for the applicant to relocate. In my view, it carefully considered the practical realities in so doing. It observed that the applicant had previously resided in Colombo and “obtained rental accommodation in lodges”. It also observed that he spoke English and was “well-educated”. Having regard to those factors and his ability to support himself in Australia as a student, the RRT was satisfied that the applicant would be able to obtain employment in Colombo. Mr Rose submitted that such a finding was not open to the RRT and that the applicant’s ability to obtain employment was mere speculation. I disagree. In my view it was open to the RRT to find, given his attributes, that the applicant would secure a job.
Mr Rose sought to rely upon the absence of family ties for the applicant in Colombo. However, the RRT properly relied upon evidence before it which suggested that the absence of family ties was no real impediment against the applicant’s reasonable relocation to Colombo.
In my view, the RRT properly applied Randhawa to the facts before it in being satisfied that:
“... as the applicant is a skilled, experienced and well educated Muslim, relocation to Colombo is reasonable and hence the internal flight alternative is available to the applicant.”
Consequently, I am not satisfied that the applicant has made out his case for a review of the decision of the RRT on the basis of its alleged misapplication of the test in Randhawa. I turn now to consider the alternative ground of review relied upon by the applicant; that is, that the RRT failed to act according to substantial justice and the merits of the case.
SECTION 420(2)(b)
Section 420(2)(b) of the Act provides that:
“The Tribunal, in reviewing a decision:
(a)....
(b)must act according to substantial justice and the merits of the case.”
In Eshetu v Minister of Immigration and Multicultural Affairs (1997) 145 ALR 621, the provisions of s 420 of the Act were examined. Davies J held at 624 that “s 420 describes procedures with which the Refugee Review Tribunal is bound to comply.” He went on to say also at 624 that:
“Of course, the words ‘act according to substantial justice and the merits of the case’ refer to more than matters of procedure.”
Davies J held at 626 that if the procedures adopted by the RRT do not accord with s 420 of the Act, its decision may be set aside. Burchett J at 636 agreed that breaches of s 420 of the Act would be “fundamental procedural breaches” and “errors of law”.
Whitlam J held at 681 that the observations of Davies and Burchett JJ regarding s 420 of the Act and its relationship with s 476 of the Act were obiter.
Whether or not the observations of the majority in Eshetu were obiter, I am prepared to assume for the purposes of this matter that a breach of s 420 of the Act would permit the decision of the RRT to be set aside. However, Mr Rose did not point to any aspect of the RRT’s handling of the applicant’s case which disclosed any failure to act according to substantial justice and the merits of the case which was not also part of his criticism of the RRT on the internal flight issue. As is apparent from these reasons for judgment, I have rejected that criticism. It follows therefore that the applicant has not demonstrated a judicially reviewable error which should be corrected by this Court.
ORDER
The order of the Court is that the application is dismissed with costs, including reserved costs, if any.
I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Marshall.
Associate:
Dated:
Counsel for the Applicant: P. Rose Solicitor for the Applicant: Wimal & Associates Counsel for the Respondent: C. Gunst Solicitor for the Respondent: Australian Government Solicitor Date of Hearing: 7 August 1997 Date of Judgment: 28 August 1997
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