FEDERAL COURT OF AUSTRALIA

Franco-Buitrago v Minister for Immigration & Multicultural Affairs [2000] FCA 1525

MIGRATION – review of a refusal of a protection visa – whether the applicant could reasonably relocate within Colombia and be safe from persecution – whether evidence that the health of the applicant’s child could be detrimentally affected by relocation was relevant to the question of internal relocation – whether the Refugee Review Tribunal erred in holding that the evidence was irrelevant

Migration Act 1958 s 476

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 followed

Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274 followed

LUIS FERNANDO FRANCO-BUITRAGO v

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

N 692 OF 2000

TAMBERLIN J

SYDNEY

27 OCTOBER 2000

THE COURT ORDERS THAT:

1.         The application for review is granted.

2.         The decision of the RRT is set aside and remitted to the RRT for determination in accordance with law.

3.         The respondent pay the costs of this application and the applicant’s costs in the proceedings of the High Court.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This proceeding comes before the Court pursuant to an order of the High Court (McHugh J) dated 26 April 2000.  The proceeding was remitted by his Honour for this Court to determine the question whether there “was an error of law [by the Refugee Review Tribunal (“the RRT”)] in relation to the application of the law to the facts as it relates to [internal] relocation” and whether that “error of law was so serious that it amounted to a constructive failure to exercise jurisdiction”.  The applicant had sought an order nisi on four grounds and it was only on ground (b) which is quoted above that the proceeding was remitted to this Court for determination.

2                     The applicant, Luis Fernando Franco-Buitrago, is a national of Colombia who seeks, together with his wife and five year old child, a protection visa on the basis that he is a refugee within the meaning of the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (“the Convention”).  The matter comes before this Court by way of an Application for review of a decision by the Refugee Review Tribunal (“the RRT”) pursuant to s 476 of the Migration Act 1958 (‘the Act”).

3                     The central question raised on this review application is whether the RRT erred in concluding that it is reasonable to expect the applicant and his family to relocate and live elsewhere in Colombia and avoid the harm they fear. 

4                     The decision-maker accepted that the applicant had a subjective fear of persecution and a fear of future harm which could amount to persecution.  He said in his reasons:

“In my view it is entirely possible that the agents of harm have no further interest in the applicants.  However, for present purposes I accept that there is more than a remote possibility that the agents of harm could continue to hold an interest in the applicants.  I am also willing to accept, for present purposes, that the threats they have experienced and fear in the future is harm which might be capable of amounting to persecution.  However on the applicants’ own evidence they have successfully relocated elsewhere in Colombia and had no further difficulties.”

5                     From this extract it is apparent that the decision-maker proceeded on the basis that the issue for determination was the ability of the applicant to relocate elsewhere in Colombia so as to be free from any reasonable fear of persecution.

6                     There was evidence before the RRT as to state of health of the applicant’s son (“Juan”), who was born on 6 December 1995, to the effect that Juan suffers from a severe blood disease known as Idiopathic Thrombosytopénic Púrpra (“ITP”).  There was medical evidence to the effect that if Juan was to develop mucosal bleeding he would require an urgent platelet count and admission to hospital for treatment with intravenous immunoglobulin.  This condition is confirmed in a report from the Sydney Children’s Hospital of 22 May 1998.  A second report in evidence from the Sydney Children’s Hospital dated 21 January 1999 confirmed that the chronic ITP was continuing and that Juan’s platelet count had been low but that there had been no history of bleeding or bruising in the previous six months.  The report records that the child’s height and weight were adequate for his age.  A further report of Dr R Skvirsky confirmed that, as at 12 April 1999, the son continued to suffer from ITP and pointed out that he was under specialist treatment at Sydney Children’s Hospital and was currently in a good state of health. The application to the RRT was heard on 26 October 1999.

7                     In a letter 13 April 1999, six months before the hearing, Mr Buitrago wrote to the RRT in the following terms:

“…

But when I first stated my case, I left out, without mentioning, an important element: the delicate health condition of our three-year-old son Juan Camilo Franco.  I did not raised the issue because at that time, I erroneously believed that of I talked about my son’s medical condition, it would became a matter that would further complicate our case.

However, I have decided to include my son’s medical condition now, with letters from the doctors, for your consideration.  My son Juan Camilo is suffering a rare illness, and when we were living in Colombia, it was never treated by the Colombian doctors in any effective way.  My son is suffering from chronic “Idiopathic Thrombosytopénic Púrpra” which affects his blood.  It is a desease which originate in his bone marrow.  The answers we receive from Colombian doctors, regarding treatment and survival possibilities, were negative.  He was prescribed a drug that has been cutted by the australian specialists who are treating him.   My son now in under control and treatment by doctors from the ‘Sydney Children Hospital, Randwick’.

I attached letters from Dr. Regina Skvirsky and Dr. Susan Russell, a specialist Haematologist-Oncologist.  I include papers from my son’s medical file. The doctors think that, if my son’s treatment is changed or discontinued, as a consecuence of us leaving Australia, that could put his health at risk.”

8                     This letter specifically raises the question of Juan’s health and asks that it be taken into account by the RRT when a decision is made.

9                     In considering the application of Mr Buitrago the decision-maker said:

“The applicant provided a number of documents in Spanish together with English translations verifying his employment and union membership, as well as documents attesting to his good character and information about his son’s medical condition.  In a covering letter sent with the documents about his son’s medical condition the applicant stated that advice received from Colombian doctors “regarding treatment and survival possibilities [for his son] were negative”.  He added that his son’s current doctors believed that his son’s health could be put at risk if his treatment were changed or discontinued, as a consequence of leaving Australia.  I note that these are not matters which are relevant to the determination of refugee status.”  (Emphasis added)

10                  This quotation makes it apparent that the decision-maker excluded from consideration matters relating to the “treatment and survival possibilities” for Juan and the risks to Juan if his treatment were changed or discontinued as a consequence of leaving Australia, as being irrelevant to the claim for refugee status.

11                  The only other reference in the reasons for decision to the circumstances of the child is in the penultimate paragraph of the RRT reasons which reads:

“Apart from those matters referred to above no specific Convention claims were made by or on behalf of the applicant child. There is no basis on which the Tribunal can be satisfied that he is a refugee.  The fate of his application therefore depends on the outcome of his parents’ applications.  As I have found they do not satisfy the criteria for a protection visa, it follows that their child cannot be granted a protection visa.”

Submission for the applicant

12                  The short submission made on behalf of the applicant was that the RRT erred in excluding from consideration the medical condition of Juan on the basis that his medical condition was not a matter which was relevant to the determination refugee status.  I agree with this submission.  The son’s ill health was relevant to the reasonableness of internal relocation and the reasonableness of internal relocation directly concerns the question of persecution in the country of nationality.

Relocation – randhawa’s case

13                  The importance and operation of what is known as the internal protection principle or the relocation principle was considered by the Full Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (Black CJ, Beaumont and Whitlam JJ) particularly at 440-443.  After referring to the importance of looking to the protection available from the country of nationality and the need to consider whether persons can genuinely have access to domestic protection to secure meaningful protection, Black CJ said (at 443):

“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. …

In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant’s Sikh culture prevented him from relocating in India.  Once the question of relocation had been raised for the delegate’s consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by Counsel for the appellant.  I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker’s task will be largely determined by the case sought to be made out by the applicant … the decision-maker on the issue of relocation …was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.” (Emphasis added)

14                  In reaching this conclusion the Chief Justice emphasised that, in the context of refugee law, the practical realities facing a person who claims to be a refugee must be carefully considered and that the question was not simply whether the appellant could possibly relocate to other areas of the country but whether he could reasonably be expected to do so. 

15                  In the present case the decision-maker made no reference to Randhawa’s case or to the above principles.  The decision-maker accepted the applicant as a credible witness.  In reaching the conclusion that it was reasonable to expect the applicant to relocate elsewhere in Colombia to avoid the harm he feared, the decision-maker drew attention to several matters.  The first was that the applicant and his family had “successfully relocated” within Colombia on three occasions, without apparent difficulty.  One of those occasions was to the outskirts of the large city of Pereira where he had not been harmed.  The decision-maker also referred to the fact that the wife, when asked specifically to comment on relocation, declined to do so.

16                  The relevant evidence referred to by the decision-maker concerning the residence of the applicant and his wife was to the effect that the applicant had worked as a court clerk in Pereira, which is described by the decision-maker as “a large city”.  That is the city where the decision-maker found that the shooting incident involving the applicant occurred in December 1997.  It was that incident which gave rise to the important finding that there was a fear of persecution.  After that shooting incident the applicant and his wife moved to Manizales about two hours away from Pereira where they stayed with his wife’s relatives until 6 January 1997, a period of about three weeks.  They then went to Santa Rosa, a small village between Pereira and Manizales, where they stayed for one week before moving again to El Rocio, a rural area on the outskirts of Pereira.  They remained here until the applicant left the country on 27 May 1997.  It will be noted that these periods of residence are relatively short.

17                  The question of whether safe internal relocation is reasonably available is, of course, one of fact for determination by the RRT. However, in reaching a conclusion on this question the RRT must not fall into an error of law by excluding from consideration matters which are central to a determination of that issue.  The reasoning in Randhawa makes it clear that the circumstances to be taken into account are wide ranging, with strong emphasis on the practical realities of an applicant’s position such that the cultural problems of relocation can be taken into account.  In the present case the issue of Juan’s health was specifically raised by the applicant as a matter for consideration.  The medical condition of the child could reasonably be considered to bear on the question whether relocation is reasonable, or feasible in a practical sense.  For example, it may be considered that it is not reasonable to expect the family to relocate in a “safe area” remote from those medical and hospital services and facilities for Juan which are normally found in a large city.  The need for medical treatment for the child may also require the parents to visit Pereira where they could experience a real danger of persecution.  These practical considerations arising from the child’s predicament could limit the number and type of places suitable for relocation and carry weight in determining the question whether relocation in the country is reasonable in the circumstances of any particular case.

18                  In my view, the express exclusion from consideration by the decision-maker of material relating to the child’s health amounted to an error of law within s 476(1)(e) of the Act because it involved both an incorrect interpretation and application of the law concerning relocation and the ambit of the matters which can be considered when determining whether relocation is reasonable in accordance with the internal protection principle: cf Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274 at par 19-22 per Burchett and Lee JJ, and par 32-35 per Moore J where the members of the Court re-emphasised the need for a careful examination of the practical difficulties an applicant may face in relocating and obtaining protection in the country of nationality.  The considerations as to the child’s health could not properly be said to be irrelevant or insignificant.

19                  Accordingly, for the above reasons, the application for review is granted.  The decision of the RRT is set aside.  The matter is remitted to the RRT for determination in accordance with law.  The respondent should pay the applicant’s costs of this application for review.  As to the costs in the High Court proceedings, I note that on 26 April 2000, McHugh J made an order that those costs should abide the outcome of the Federal Court proceeding.  As this decision is in favour of the applicant it follows that pursuant to the High Court order, the respondent should pay the applicant’s costs of the High Court proceedings.

Associate:

Dated:              27 October 2000