FEDERAL COURT OF AUSTRALIA

SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216

SZBJI v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS & ANOR

NSD 870 OF 2005

ALLSOP J

17 MARCH 2006

SYDNEY

ON APPEAL FROM A DECISION OF A FEDERAL COURT MAGISTRATE

THE COURT ORDERS THAT:

1.          The Refugee Review Tribunal (the “Tribunal”) be joined as a party to the appeal as the second respondent.

2.          The appeal be allowed.

3.          The orders made by the Federal Magistrates Court on 14 April 2005 be set aside, and in lieu thereof, the Court orders that:

1.                  The Tribunal be joined as a party to the application as second respondent.

2.                  The decision of the Tribunal made on 30 June 2003 and handed down on 29 July 2003 be quashed.

3.                  There be an order in the nature of mandamus requiring the Tribunal to review, according to law, the decision of the delegate of the Minister to refuse a protection visa sought by the applicant.

4.                  The first respondent (Minister) pay the costs of the applicant before the Federal Magistrates Court.

4.          The first respondent (Minister) pay the appellant’s costs of the appeal.

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

ON APPEAL FROM A DECISION OF A FEDERAL COURT MAGISTRATE

REASONS FOR JUDGMENT

1                     This is an appeal from orders made by a Federal Magistrate dismissing an application under s 39B(1) of the Judiciary Act 1903 (Cth) in respect of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 30 June 2003 and handed down on 29 July 2003 which affirmed a decision of a delegate of the Minister not to grant a protection visa.  The Chief Justice has made a direction under s 25(1A) of the Federal Court of Australia Act 1976 (Cth) that the appeal be heard by a single Judge.

2                     The Federal Magistrate, in [1] of his reasons, set out the relevant background facts in a manner that was not the subject of criticism before me:

The applicant claimed to fear persecution in Nepal for reason of his political opinion and membership of a particular social group. He claimed to have become vice president of the All Nepal National Student Federation on the Marxist-Leninist Party ticket in 1999, but was expelled in 2001, after which he joined the All Nepal National Independent Student Union in July-August 2001, which was affiliated with the Maoists. The applicant claimed that he attended some Maoist meetings. He claimed that the army was searching for Maoists in Kathmandu in October 2001, and that he feared arrest and so hid in Bonepa and Lamjung before returning to Kathmandu in November 2001, from where he fled to Australia in February 2002, paying a bribe to leave through the airport. He feared arrest and harm from the authorities if he returned to Nepal because of his connection with the Maoists. He also claimed to fear harm because of his low caste. …

3                     Also in [1] of his reasons, the Federal Magistrate summarised the approach of the Tribunal in the following terms:

The RRT accepted the majority of the applicant´s claims, but found that his Maoist political involvement was minor and any profile that he had thereby acquired was confined to Kathmandu. The RRT concluded that the applicant was not of any interest to the Nepalese authorities when he left Nepal, noting that he had voluntarily returned to Kathmandu from November 2001-February 2002 despite the army looking for Maoists in Kathmandu at this time. The RRT rejected the applicant´s claim that he paid a bribe to leave through the airport, and found that he had left legally on his own passport indicating that he was not of interest. To the extent that the applicant had any Maoist profile in Kathmandu the RRT found it was reasonable for him to relocate from Kathmandu to his home town of Lamjung, noting independent country information to this effect (on which the applicant´s comment had been sought: court book, pages 122-123). The RRT also found that any discrimination the applicant had suffered in the past or might suffer in future because of his low caste was insufficiently severe to constitute persecution within s.91R of the Act. …

4                     The amended application before the Federal Magistrate identified two grounds of review, in the following terms:

A.     The Refugee Review tribunal made a jurisdictional error by failing to apply the Refugees Convention as amended by the Refugees Protocol to the application in question.

Particulars

(a)    The Tribunal failed to discharge its obligations to make a finding as to whether or not the Applicant would be persecuted if returned to his country of nationality.  Instead, the Tribunal assessed whether or not it would be possible for the Applicant to avoid problems.

B.      The Refugee Review Tribunal made a jurisdictional error in that the Tribunal made an error of law in its construction of Australia’s protection obligations under the Convention and Sections 36(2) and 65(1) of the Migration Act 1958.

Particulars

(a)    The Tribunal incorrectly examined the issue of the Applicant’s ability or lack thereof to relocate to another part of Nepal.  Relocation does not arise when the persecutor is the government which has as much presence in the proposed area of relocation as in the Applicant’s original location.

5                     The reasoning of the Tribunal was, first, to pose the following question:

The question for the Tribunal however is whether, given the applicant’s political profile, there is a real chance that he would be at risk of persecution should he return to Nepal now or in the reasonably foreseeable future in relation to the whole of Nepal.

6                     The Tribunal accepted from the independent evidence that Maoists and their supporters are persecuted by the Nepalese authorities.  This was qualified, however, by Belgian country information, which was accepted by the Tribunal, that “low profile Maoists namely sympathisers … or minor members who did not fulfil an executive function within the party can avoid possible problems by using an internal flight alternative.”

7                     The Tribunal then examined the circumstances of the appellant and concluded that he was of a low profile, finding the following:

It is the Tribunal’s view that the applicant’s Maoist political involvement can only be described as minor.  He did not hold any official position or perform any executive function and although he claimed to have participated in meetings at which he was allocated tasks, he did not actually participate in any demonstrations or organise any event on behalf of ANNISU or the Maoists.

8                     The Tribunal did, however, differentiate between the appellant’s position in Kathmandu and elsewhere.  The Tribunal accepted that the applicant was expelled from the Marxist Leninist party of which he was a member because of a rumour that he was joining the Maoists.  The Tribunal described the effect of this on the appellant’s “profile”:

… it is this fact which has given him any Maoist profile and it is the Tribunal’s view that this profile was confined to Kathmandu which is where the University campus was located.

9                     It would appear, however, that the Tribunal did not consider that this position in Kathmandu was sufficient to place the appellant at risk.  This is evident from the next paragraph in the Tribunal’s reasoning:

The Tribunal is fortified in its view that the applicant’s profile was low and that he was not of any adverse interest to the authorities by the fact that the applicant remained in Kathmandu despite being expelled from his own party on campus and despite his own evidence that the authorities were looking for Maoist supporters at the University.  In addition the independent evidence is that the State of Emergency was declared in Kathmandu in November 2001 and as a result any person with any connection with the Maoists was under serious threat.  The fact that the applicant returned to Kathmandu about that time and remained there until February 2002 is inconsistent with a fear of persecution and is strong evidence that he was not in any fear that he was of any adverse interest to the authorities.  Furthermore The Tribunal did not find the applicant’s claim that his agent was able to bribe a Nepalese official to leave Nepal plausible.  Although there is abundant evidence of corruption in Nepal, a State of Emergency had been declared and was still in force when the applicant departed Nepal.  It is not plausible that in those circumstances that the applicant if were fearful of the authorities he would travel on a passport in his own name (sic).  The fact that he did is strong evidence that he was not of any adverse interest to the Nepalese authorities at the time of his departure from Nepal.

10                  It is unclear from the Tribunal’s reasoning what relevance the level of “profile” of the appellant had.  When first discussed by the Tribunal, in particular by reference to the Belgian country information, it was a qualification to the existence of persecution:  Maoists of low profile might relocate.  However in the passage quoted at [9] above the Tribunal appears to conclude that the appellant’s profile was so low as lead to the conclusion that he was not at risk even in Kathmandu.

11                  In any event, after concluding as it did in the passage at [9] above, the Tribunal then considered relocation in the following terms:

To the extent however that there were rumours about the applicant joining the Maoists in Kathmandu, the Tribunal has considered whether the applicant could safely relocate to another part Nepal.  The purpose of refugee status is to provide international protection in circumstances where national protection is not available.  A person is not in need of international protection if protection is available in another part of their country of origin.  If it could reasonably be expected that an applicant could relocate to another part of their country then the applicant does not have a well-founded fear of persecution in relation to that country as a whole (Randhawa v MILGEA (1994) 52 FCR 437).

There is independent evidence before the Tribunal that low profile Maoists could relocate to another part of Nepal as the Nepalese authorities are not interested in chasing Maoists across the country.  This is confirmed to some extent by the applicant’s own evidence in that when the authorities began looking for Maoists in the area where he was residing he left to go to Bonepa for about 10 or 15 days and then to his home town of Lamjung for two or so days.  It is the Tribunal’s view that the applicant’s decision to return to his home town of Lamjung strongly indicates that he felt sufficiently safe to return to there.  The applicant did not claim to be of any adverse interest to the authorities in Lamjung and the fact that he chose to return there strongly indicates that he was not.  The Tribunal is of the view therefore that it is reasonable for the applicant to relocate to his home town of Lamjung as he has family there.

12                  The Tribunal then concluded as follows:

The Tribunal finds therefore that the applicant does not face a real chance of persecution for reasons of his imputed or actual political opinion should he return to Nepal now or in the reasonably foreseeable future in relation to Nepal as a whole.

13                  At [8] and [9] the Federal Magistrate noted the tension in the Tribunal’s findings as follows:

The presiding member has clearly stated that in her view, the applicant did not fear harm from the authorities in late November 2001 and early February 2002. At the same time, the presiding member appears to have accepted country information that as a result of a state of emergency declared in Kathmandu in November 2001, any person with any connection to the Maoists was under serious threat.

These statements appear at first reading to be inconsistent. …

14                  At [9] the Federal Magistrate went on to reconcile this tension as follows:

…I have reconciled them on the basis that while the applicant was under serious threat as a Maoist sympathiser and a member of a Maoist-affiliated organisation, as a result of the declaration of a state of emergency, the applicant had not as a matter of fact come to the adverse attention of the authorities and did not fear coming to the attention of those authorities. The presiding member on that basis appears to have found that the applicant could return to Kathmandu without being at serious risk of harm. In the alternative, the presiding member found that the applicant could relocate to another part of Nepal, having regard to country information that Nepalese authorities are not interested in chasing Maoists across the country. The presiding member considered in particular that the applicant could return to his home town.

15                  The first aspect of the complaint by the appellant that was considered by the Federal Magistrate was the assertion that the Convention had not properly been applied.  Though the Federal Magistrate appears to have been troubled by the factual analysis, he saw this as within the legitimate domain of the Tribunal, once it had directed itself correctly by reference to the question set out at [5] above.  The Federal Magistrate disposed of this aspect of the application in [16] – [18] as follows:

… [T]he presiding member went on to consider the level of risk to which the applicant would be exposed should he return to Nepal. There was no evidence before the RRT that the applicant had participated in political activities outside Kathmandu; neither was there any evidence that the applicant wished to pursue higher profile political activities in Nepal in the future should he return there.

In these circumstances, it was reasonable for the presiding member to conclude that the applicant's political profile would be no greater in the future than it had been in the past. It was also reasonable for the presiding member to conclude that the applicant's risk of harm was primarily geographically limited to Kathmandu. The presiding member concluded that the applicant did not face a real chance of persecution for reasons of his imputed or actual political opinion should he return to Nepal now or in the reasonably foreseeable future in relation to Nepal as a whole.

Contrary to Mr Diab's submissions, I find that in reaching that conclusion the presiding member did speculate on possible future circumstances by reference to the information that was available to her.

16                  The ground of appeal which reflected this asserted ground of review (ground 1 of the Notice of Appeal) was abandoned.

17                  The second ground of review argued before the Federal Magistrate concerned the approach to relocation.  This was dealt with by the Federal Magistrate in [19] – [21] of his reasons as follows:

The challenge to the decision on the issue of relocation also fails. First, I accept Mr Reilly's submission that the decision of the RRT primarily rests on the finding that the applicant did not have a well founded fear of persecution in Kathmandu. The relocation finding was secondary on the basis that the presiding member was not so certain in that finding that she could exclude from consideration the possible need for relocation.

Further, the relocation finding was open to the presiding member on the basis of the country information available to her. The presiding member would, in my view, have erred if she had concluded that the applicant could avoid a real risk of harm by going into hiding or going on the run from the Nepalese authorities. This probably would have been the result if the applicant had had a high political profile in Nepal that placed him at significant risk. It would obviously be unreasonable to expect an applicant to avoid a risk of harm from the Nepalese government by going into hiding or by constantly moving.

Mr Diab submits that the finding on relocation contains an inherent and unreasonable assumption that the applicant will have to move from time to time. While that is arguable it is on balance not the interpretation of decision that I draw. The applicant had had no political profile outside Kathmandu prior to coming to Australia. The presiding member considered that the applicant could safely relocate outside Kathmandu, in particular to his home town of Lamjung. It did not necessarily follow from the material before the presiding member that the applicant would come to the adverse attention of the authorities outside Kathmandu and neither did it necessarily follow that the applicant would have to undertake further moves in the future if and when he did come to the adverse attention of the authorities.

18                  The submission of the appellant on relocation was simple.  It was said that the principles discussed in NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 and Randhawa v Minister for Immigration and Multicultural and Indigenous Affairs (1994) 52 FCR 437 had not been applied.  In Randhawa Black CJ (with whom Whitlam J agreed) said at 442-43:

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 in which 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.

In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered.

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.

19                  In my view, the Federal Magistrate fell into error in analysing this aspect of the Tribunal’s reasons.  First, I do not agree that the Tribunal’s findings amount to a view available on the evidence that the appellant did not have a well-founded fear of persecution in Kathmandu.  The findings of fact are sufficiently ambiguous to leave one with the view that the Tribunal accepted that the appellant had Maoist political involvement of a low profile about which there were rumours in Kathmandu.  It is apparent that this would have placed the appellant at some risk in Kathmandu, at least at certain times in the past.  Thus it was necessary for the Tribunal to consider relocation, for the reasons expressed by the Chief Justice in Randhawa.

20                  The question of relocation was raised with the appellant by letter in the following terms:

There is credible evidence before the Tribunal from the Kingdom of Belgium Update Mission Report prepared by CEDOCA that someone with a low Maoist profile could relocate to another part of Nepal and be safe as the Nepalese authorities are not interested in chasing Maoists with low profiles across the country.  Please comment.

21                  What was not raised with the appellant and what was not broached by the Tribunal in its reasons was the practicality and reasonableness in all the circumstances of the appellant relocating outside Kathmandu for the foreseeable future.  He may have gone to Bonepa and Lamjung (the latter being his home town) for a few days.  But what is not addressed is the practicality and reasonableness of relocation for the favourable future in these places.  I do not put this as a failure to accord procedural fairness, but as a failure to address an essential element of the question of avoidance of possible future persecution by relocation.

22                  Mr Reilly, who appeared for the Minister referred me to SZFCB v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 961 especially at [24] and SZBGC v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1168 especially at [26].  I accept that the Tribunal is not required in addressing relocation to elaborate on every aspect of its practical application.  However, if from the reasons and the material before me, it does not appear that the practical application of relocation has been addressed, it would be wrong to assume that it has been.

23                  As part of that analysis of relocation the issue of the appellant’s Maoist adherence would need to be addressed.  It was not.  In this respect, though in another context, see Appellants S395 and S396 v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 216 CLR 473.

24                  For the above reasons in my view the Tribunal failed to complete its jurisdictional task.  The appeal should be allowed.  It is unnecessary to address the second point on appeal.

Associate:

Dated:              17 March 2006