FEDERAL COURT OF AUSTRALIA

Minister for Immigration and Border Protection v CZBB [2013] FCA 1172

THE COURT ORDERS THAT:

1.    The appeal be allowed.

2.    Orders 2, 3 and 4 of the orders made by Judge Neville, a judge of the Federal Circuit Court of Australia, on 24 May 2013 in proceeding (P)CAG72 of 2011, be set aside.

3.    In lieu of the said orders, the following orders be made, namely:

(a)    The applicants’ application for judicial review be dismissed.

(b)    The applicants pay the first respondent’s costs of and incidental to that application.

4.    The first and second respondents to the appeal pay the appellant’s costs of and incidental to the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The appellant (the Minister) has appealed against a decision of the Federal Circuit Court of Australia delivered on 24 May 2013 (CZBB v Minister for Immigration and Citizenship [2013] FCCA 310). By that decision, the learned Circuit Court judge issued a writ of certiorari removing into the Circuit Court the record of the Refugee Review Tribunal (the Tribunal) for the purpose of quashing the Tribunal’s decision dated 16 November 2011 in respect of the first and second respondents to the appeal (the respondents) and also issued a writ of mandamus requiring the Tribunal to determine the respondents’ application for review according to law.

Background

2    The respondents are citizens of India who arrived in Australia on 18 March 2008, both travelling on student visas. The first respondent is the husband of the second respondent.

3    On 25 October 2010, the respondents applied for protection visas. A delegate of the Minister refused their applications in a decision dated 7 July 2011.

4    The first respondent met the second respondent in November 2006 while both were studying at Punjabi University in India. They fell in love. The first respondent told his father that he wished to marry the second respondent. The first respondent’s parents refused to accept the second respondent because she belongs to the Gujjar family (Other Backward Class) and forbade him from marrying her. The first respondent belongs to the Jatt Sikh ethnic group.

5    In defiance of the first respondent’s parents’ wishes, the respondents married in secret on 25 August 2007. At that time, they did not disclose to their respective families that they had married and did not do so until much later. They kept their marriage secret because they believed that, if their families learned of their marriage, they would both be murdered for dishonouring their families by marrying outside their castes. At the time, they lived separately in order to conceal the fact that they had married. They then fled to Australia.

6    The respondents claimed that the second respondent’s uncles are very influential in the Punjab and have ties to politicians and police officers in that area. Both respondents feared that the second respondent’s uncles would use their influence to gain information as to their whereabouts and have them murdered. That fear subsists.

7    The respondents claimed that the tolerance for inter-caste marriages in the Punjab is very low. They said that honour killings are on the rise in India, especially in the Punjab.

8    Both respondents speak fluent Punjabi, Hindi and English. Both respondents are well educated, the first respondent holding the degrees of Masters of Philosophy, Masters of Arts and Bachelor of Arts, and the second respondent holding the degrees of Masters of Arts and Bachelor of Arts.

9    In their applications for protection visas, the respondents claimed that, after they arrived in Australia, for financial reasons, they were compelled to disclose to the first respondent’s father that they had secretly married in India. The first respondent claimed that his father then told him that he disowned him and demanded that he never show his face in India again. The first respondent’s father said that he would have the respondents killed if they returned to India.

10    The delegate found that the respondents genuinely feared harm for the reasons which they had claimed. The delegate also concluded that, if the respondents were required to return to the Punjab, their fears would be well-founded. He said that there was a real chance that they would be harmed or killed by family members in the Punjab. The delegate went on to conclude that the respondents would not be at risk if they returned to India provided that they relocated to an area away from their families. For these reasons, the delegate refused their application for protection visas.

The Review Application in the Tribunal

11    On 8 August 2011, the respondents filed an Application for Review of the delegate’s decision in the Tribunal.

12    On 7 November 2011, the Tribunal conducted a hearing in relation to the respondents’ Application for Review.

13    On 16 November 2011, the Tribunal affirmed the decision made by the delegate not to grant protection visas to the respondents.

14    Before the Tribunal, the respondents made the same claims as they had made in their applications for protection visas. At [26]–[38] of the Tribunal’s Decision Record, the Tribunal summarised those claims. In the last dot point in [36], the Tribunal said:

Accordingly, the [respondents] claimed that they would be killed for entering into a mixed marriage against the wishes of their respective families. In addition, not only had the [respondents] personally dishonoured their families, but as the second-named [respondent’s] uncles had daughters, if society learned of her dishonourable marriage, it would become impossible for her uncles to find husbands for the second-named [respondent’s] female cousins. Therefore, the [respondents] claimed that they faced a real risk of being the victims of honour killings in India.

15    At [46]–[55], the Tribunal addressed the substance of relevant independent country information in its possession. In the course of dealing with relevant country information, the Tribunal adopted a practice of underlining certain passages in extracts from materials to which it referred for the purpose (apparently) of emphasising those passages.

16    At [52]–[55], the Tribunal addressed the topic of internal relocation within India. In those paragraphs, the Tribunal said:

52.     Indian law provides for freedom of movement within the country, and the government generally respects this in practice. In late 2010, the government repealed the requirement for nationals and foreigners, apart from Pakistani and Chinese nationals, to apply for special permits to travel to Manipur, Mizoram and Nagaland. Such permits, however, are still required to travel to Jammu and Kashmir (United States Department of State 2011, Country Reports on Human Rights Practices for 2010 – India, April 2011 – Accessed 2 November 2011). According to the United Kingdom Home Office, there are no checks on a newcomer to any part of India arriving from another part of India; local police have neither the resources nor the language abilities to undertake background checks on individuals relocating within India (United Kingdom Home Office 2010, Country of Origin Information Report – India, 21 September, Section 20).

53.     In addition, according to the United Kingdom Home Office Operational Guidance Note of 2008, “as a general rule, an internal relocation option exists from one Indian State to another.” Concluding the section on claimants who fear persecution from non-state agents as a consequence of their Christian, Muslim or Hindu religious faith, the Operational Guidance Note: India states:

The Indian constitution guarantees the rights of religious minorities and there are avenues open for individuals to seek protection from the authorities where they experience ill-treatment. Furthermore, there exists the option for those who encounter such difficulties to relocate internally. Therefore, it is unlikely that claimants in this category would qualify for asylum or Humanitarian Protection and such claims are likely to be clearly unfounded. An exception to this may be high-profile religious leaders in very specific and individual circumstances for whom there may not be a sufficiency of protection as detailed above, though these cases are likely to be extremely rare (United Kingdom Home Office 2008, Operational Guidance Note: India, April 2008, p. 12).

54.     This guidance notes also states that internal relocation is not feasible where the applicant’s fear of ill treatment lies with the central authorities. Relocation to a different area, however, is considered feasible where the applicant’s fear is of local police and if the individual is not of interest to the central authorities (United Kingdom Home Office 2008, Operational Guidance Note – India, April, Section 3.6.10).

55.    Notably, the 2011 United Kingdom Home Office country report also deals with the issue of internal relocation for Sikhs from Punjab, and the information provided is relevant to the issue of relocation generally. In particular, it states:

20.63     Sikhs would have unlimited access to housing in localities outside Punjab state to whatever extent they could afford it, as the main factor limiting access to housing is financial rather than religion, according to two sources consulted by the Canadian IRB in their response dated 18 January 2006. The report continues to state that Muslims experience the greatest discrimination in housing, not Sikhs, and although there may be isolated instances of discrimination against Sikhs in terms of housing, it is by no means a common occurrence. Citizens may buy agricultural land only in their state of residence except for Punjab state, where agricultural land may be purchased by Indian citizens living in any Indian state. It was thought by one source that the application of this law was mainly used against Sikhs and other religious minorities. (Immigration and Refugee Board of Canada, 18 January 2006) [97c]

20.64     Upon relocation Sikhs would have indiscriminate access to employment dependent on their skill level. There may be isolated instances where an individual feels discriminated against because of a tendency by some firms to employ locally born and educated people. Sikhs would also have indiscriminate access to health care in states outside of Punjab although access depends largely on their financial situation and their proximity to an urban location. It was also agreed by two sources that Sikhs would have access to education outside of Punjab and again poverty is the main obstacle to education and proximity to an urban area affects the availability of education. (Immigration and Refugee Board of Canada, 18 January 2006) [97c]

[Tribunal emphasis]

17    The underlining in [55] of the Tribunal’s Decision Record is an example of the underlining which the Tribunal carried out at [48]–[55] of that Record.

18    At [57]–[124], the Tribunal summarised the oral evidence given by the respondents at the review hearing, including evidence given in response to an oral invitation to comment made by the Tribunal. In this section of its Decision Record, under the subheading The Issue of Relocation, at [82]–[84], the Tribunal said:

82.     The first-named [respondent] confirmed that India has a population of more than a billion people. Notwithstanding, he stated that it was not possible for him and the second-named [respondent] to relocate within India if they were to return there. He stated that this was because he and the second-named [respondent] had established a new life in Australia independent of their respective families, something that was not possible within the social fabric of India. The first-named [respondent] stated that he would not be able to obtain employment outside the state of Punjab as his studies had related to the Punjab and were not relevant elsewhere.

83.     In addition, the first-named [respondent] stated that he could not relocate to New Delhi because it has high crime rates, including a high incidence of rape. The first-named [respondent] conceded that he and the second-named [respondent] would not be found by their respective families in Mumbai, but be said that they would probably die from starvation and poverty there because they did not own any property, or have any income. As a result, the first-named [respondent] stated that regardless of whether he and the second-named [respondent] returned to the Punjab or Mumbai, they faced death.

84.     The Tribunal asked the first-named [respondent] if, apart from his marriage to the second-named [respondent], he feared returning to India on any other basis. He responded that, other than his marriage, there were no other issues that gave rise to his fear.

19    At [111]–[112], under the subheading Country Information, the Tribunal said:

111.    The Tribunal invited the [respondents] to comment upon the country information set out at paragraphs regarding relocation within India at paragraphs 50-53 above. In addition, the Tribunal noted there was little in the country information to indicate the Punjabi families perpetrated honour crimes outside the Punjab.

112.    The Tribunal advised the [respondents] that this information was relevant to the review because, it might lead to a finding that they could relocate within India. As a result the Tribunal might find that the [respondents] were not persons to whom Australia owes protection obligations.

20    At [117]–[121], the Tribunal recorded the respondents’ responses to the issue of relocation which had been put to them during the oral hearing before the Tribunal. At those paragraphs, the Tribunal said:

117.     On the question of his oral evidence that their families would not find that [respondents] if they moved to Mumbai, the first-named [respondent] stated that had told the Tribunal that it was possible that they would not find them. The Tribunal observed that the first-named [respondent] had not qualified his oral evidence in this manner. The first-named [respondent] conceded that he had not done so, but that he had meant to convey that it was possible that the parties’ respective families would not find them at first, but they would in time and then he and the second-named [respondent] faced a real chance of death.

118.     As regards the occurrence of honour killings in India, the first-named [respondent] confirmed that the news articles he had submitted to the Tribunal all related to incidents that had taken place in the Punjab, rather than elsewhere in India.

119.     In relation to the country information before the Tribunal regarding the option of relocation, the first-named [respondent] stated that he did not agree with it. He submitted that whilst there might be a freedom of movement within India, and that Sikhs could obtain employment, health care and housing outside the Punjab, the reality in India was very different. The first-named [respondent] reiterated that, unlike Australia, children could not readily live independently of their parents. He stated that he and the second-named [respondent] that could not live outside their social group because they did not have any property or money and, without the support of their local social network, it would be impossible for them to obtain the required references, or pay any bribes that might be required, to obtain employment elsewhere in India, including in New Delhi or Mumbai.

120.    The Tribunal observed that both [respondents] were tertiary educated in India, spoke three languages, including the two official languages in India, and the first-named [respondent] had undertaken a hospitality course in Australia that provided him with additional practical skills. In addition, the Tribunal noted that there was a reasonably sized Sikh population in Mumbai. The first-named [respondent] that without assets, family support and an income, the [respondents] could not easily relocate within India, to New Delhi or Mumbai. He stated that all Sikhs had the same mindset that his father had and therefore he would not be welcomed into the Sikh community in Mumbai. In addition, there might be Sikhs there who knew his father and reported his whereabouts to his father in Barnala, increasing the risk of an honour killing.

121.     The first-named [respondent] also noted that the pro-Hindu Shiv Sena group in Mumbai was actively opposed to anyone from outside Mumbai settling there, which added to the difficulties of relocation. The first-named [respondent] stated that if it were as easy to relocate as the country information indicated, then it raised the question why the victims of honour killings in the Punjab had not done so themselves. The second-named [respondent] added that it would be difficult for the first-named [respondent] to obtain employment in a patisserie in India because these were not widely eaten products in India.

21    In its Decision Record, immediately after dealing with the course of the oral hearing before the Tribunal, the Tribunal embarked upon its consideration of a separate and additional topic. That topic concerned Additional Country Information and was addressed under a heading expressed in those terms. For reasons which will shortly become apparent, the material under this latter heading ([125]–[132]) is at the heart of the present appeal. At those paragraphs, the Tribunal said:

Additional Country Information:

Shiv Sena:

125.     According to the 2011 United Kingdom Country of Origin Information Report India, Shiv Sena (also known as Shiva’s Army) was:

Founded 1966. A member of the National Democratic Alliance and said to be more hard-line than the BJP, Shiv Sena is based in Mumbai. [32m] The party is headed by one of India’s most controversial Hindu nationalist leaders, Bal Thackeray. Secured 11 seats in the 2009 general election.

126.     Human Rights Without Frontiers International describes Shiv Sena as follows:

The Shiv Sena (Army of Shiva) is a political party in India that was founded on 19 June, 1966 by Bal Thackeray. Thackeray has since resigned and given the post to his youngest son Uddhav Thackeraym, but despite this, he still maintains control of the party while his son handles its day to day affairs. The party emerged from a movement to increase the influence of the Marathis language in the Indian state of Maharashtra, where the party’s primary base resides. The party has moved from its pro-Marathi platform to a broader Hindu nationalist agenda and has aligned itself with the BJP. Several Academics describe the SS as a militant nativist organization.

The SS maintains its Hindutya ideology and is a right-wing political party. It has been accused of instigating many riots in the state, including the Mumbai riots of the late 1960s, the Bhiwandi riots in 1984 and the Mumbai riots of 1992-93.

The SS upholds itself as a nationalistic party and claims to not discriminate against any religion. caste and creed. They profess to be willing to go to any extent to eliminate the traitors or enemies of India and supposedly have a suicide squad known as the Balidani Jatha. The squad has been involved in aggressive protests (Human Rights Without Frontiers International, ‘India – Hindu Extremist Movements’, Human Rights Without Frontiers International website, 31 January 2009)

[Tribunal emphasis]

Population Statistics and Official Languages:

127.     The capital of India is New Delhi, with an estimated population of 12.8 million following the 2001 census. In addition, Mumbai with a population of approximately 16.4 million is considered to be India’s most populated and one of its major cities (At paragraph 1.04 of the 2011 United Kingdom Country of Origin Information Report – India, 26 August 2011 and http://www.bbc.co.uk/news/world-south-asia-12557386 - Accessed 7 November 2011).

128.     As regards India’s official languages, research undertaken by the Tribunal confirms that:

Due to rapid industrialization, and a bustling multinational influence in the economy, English continues to be a popular and influential means of communication in the government and day-to-day business, and moves to replace it have effectively been shelved (See ‘List of National Languages of India’,

http://www.wordig.com/definition/List of national languages of India - Accessed 7 November 2011)

[Tribunal emphasis]

129.     In relation to the major languages spoken in New Delhi, research indicates:

Main Language of Delhi

Hindi is the official language of Delhi. As the city is dominated by the Hindu population, the majority of the people speak in Hindi. However the language is split up into several interesting dialects, which are popular among the people.

Languages of Delhi

The following languages are commonly spoken in the Delhi, the capital of India:

Urdu in Delhi is not only common but has a rich history of its own. Currently it is very popular in the area of Purani Dilli or Old Delhi, where a large number of Muslims reside.

Punjabi is one of the important languages of Delhi, which is widely spoken. The people who are conversant with it are the Punjabis and Sikhs in Delhi.

English in Delhi, is a language with which nearly all the inhabitants of the city are familiar. It is a popular means of communication, particularly among the youngsters. Tourists in the city have absolutely no problem in communicating with the local people as everyone from shopkeepers to travel guides and from taxi drivers to passers-by ·speak English very well.

…

Among the various languages in Delhi, Hindi and English are generally used as the common mediums of instruction

(See httn://www.mapsofindia.com/delhi/language.html

Accessed 7 November 2011).

[Tribunal emphasis]

130.     As regards the languages spoken in Mumbai, research undertaken by the Tribunal indicates that, whilst Marathi is the most widely spoken language of its local inhabitants, Hindi is another popular language that is spoken and the educated elites of Mumbai converse in English

(See http://www.mapsofworld.com/cities/india/mumbai/language.html - Accessed November 2011).

Education:

131.    The 2011 United Kingdom Country of Origin Information Report - India confirms (At paragraph 6.06) the first-named [respondent’s] evidence that each state legislature in India makes its own laws in relation to matters such as education, health, taxation, public order and land. However, this report does not suggest that qualifications from one state of India would not be recognised elsewhere in India.

132.     The 2011 United Kingdom Country of Origin Information Report - India report further confirms that political and bureaucratic corruption remain as significant problems in India:

Referring to corruption and criminality in the political system, Freedom House stated in its report Freedom in the World – India (2011), published on 5 July 2011:

“Political corruption continues to plague government efficiency in India ... Legal limits on electoral spending are invariably exceeded, with campaigns drawing on large amounts of 'black money' obtained through tax evasion and other means. Misdirection of funds meant for public goods and social programs has undermined overall progress on development. Though politicians and civil servants are regularly caught accepting such bribes or engaging in other corrupt behaviour, a great deal of corruption goes unnoticed and unpunished. The federal government has introduced a number of initiatives to address the problem, such as the 2005 Right to Information Act, internet-based government services and information, and accountability and transparency agreements between organizations and individuals, known as citizen charters ... A system of ‘social audits’ was intended to allow individuals and independent monitors to assess the public utility of government programs, but many reports indicate that local government officials distrust the program and attempt to thwart the inquiries (At paragraph 6.07).

[Tribunal emphasis]

22    The Tribunal began its explanation of its Findings and Reasons at [133] of its Decision Record. At [134]–[165], the Tribunal considered the protection claims in detail. At [165], the Tribunal concluded that, on balance, having regard to all the evidence before it, the respondents faced a real chance of serious harm from non-State agents, being members of their respective families, in the Punjab on the basis of their mixed marriage. The Tribunal accepted that this fear was based upon the fact that each of them had come from a different religion and caste and that the harm was sourced in their membership of a particular social group. The Tribunal was satisfied that the basis for the respondents’ fear was Convention-related.

23    At [166]–[190], the Tribunal looked at the question of whether the respondents could safely relocate within India.

24    At [166]–[171], the Tribunal explained the relevant principles concerning relocation.

25    At [172], the Tribunal said that it considered that the respondents’ claims were wholly localised to the Punjab area where there has been a history of honour killings where individuals have entered into inter-caste or inter-religious marriages without family approval.

26    At [173], the Tribunal noted that the respondents had contended at the hearing before the Tribunal that they would not be safe elsewhere in India because their families would track them down and kill them. The Tribunal disagreed with this assertion made by the respondents and did not accept that they would be tracked down by family members if they relocated to another State in India.

27    At [174], the Tribunal said:

Specifically, the Tribunal notes that whilst the country information from authoritative sources indicates that honour killings continue to be a problem in northern states like the Punjab, there was little in this information to indicate that Punjabi families perpetrated such crimes outside the Punjab. It also indicates that there is freedom of movement within India and few formal barriers to relocation.

28    At [176]–[191], the Tribunal set out in detail its reasons for concluding that the respondents could safely relocate within India, notwithstanding their protestations to the contrary. At those paragraphs, the Tribunal said:

176.     Notwithstanding the [respondents’] claims to the contrary, the Tribunal notes that the relevant test is not whether it is “easy” for the [respondents] to relocate within India, but whether it is reasonable for them to do so, having regard to their particular circumstances.

177.     In relation to the country information before it, the Tribunal does not agree with the [respondents’] submissions that it cannot be relied upon. Firstly, this information comes from authoritative sources. As a result, the Tribunal prefers it to the [respondents’] unsubstantiated claims in this regard.

178.     Secondly, the country information set out at paragraph 52 above indicates that the local police do not have the resources, or language abilities to conduct background checks on individuals relocating to a new area from elsewhere in India.

179.     Thirdly, despite the claimed political influence of the second-named [respondent’s] uncle and family in the Punjab, the Tribunal notes that the [respondents] referred to this influence being tied to politicians and police officers in their local area. As a result, the Tribunal does not accept that they would be able to extend their influence beyond their local area this state to cities such as New Delhi or Mumbai, which are highly urbanised centres with multi-million populations.

180.     The Tribunal has also taken into account the [respondents’] oral evidence that they do not face a risk of serious harm for any other reason other than their mixed marriage. It notes that they also both confirmed that, apart from the slow and sometimes corrupt nature of the Indian bureaucracy, they did not encounter any Convention-related difficulties in either having Indian passports issued to them, or when they departed India in March 2008. Whilst the Tribunal accepts that there is country information that political and bureaucratic corruption continue to be problems in India, it does not accept that, based on the [respondents’] own evidence, they are of any interest to the central authorities in India. Further, they did not cast their fears in terms of the central authorities at all.

181.     As a result, the Tribunal prefers the independent country information before it to the [respondents’] unsubstantiated claims in this regard. Accordingly, the Tribunal does not accept· that it should disregard the country information regarding the ability of the [respondents] to relocate within India from the Punjab, to a large population centre such as New Delhi or Mumbai.

182.     On the question of whether the [respondents’] relocation to one of these cities in India would be reasonable, the Tribunal notes that the [respondents] have lived in Australia since March 2008, and a both tertiary educated and speak 3 languages, including the two official languages in India. In addition, the first-named [respondent] has acquired additional skills in the field of patisserie specifically, and hospitality generally, and he has previous work experience as a tutor in India. Furth [sic], both [respondents] stated in their Protection visa applications that they could obtain employment in India as teachers.

183.     At the Tribunal hearing the [respondents] put forward a number of reasons why it was not reasonable to expect them to relocate within India, claiming that they would not be able to survive if they did so.

184.     They contended that they would not be able to obtain employment and housing outside the Punjab because they could not live independently of their families, given the social structure within India. The Tribunal does not accept this particular submission. Whilst the Tribunal recognises that the [respondents] will not be able to access the financial and emotional support of their families in the Punjab, if they return to another area of India, such as New Delhi or Mumbai, or another larger city in India, the Tribunal finds that they have the education background and language skills to relocate successfully.

185.     The [respondents] submitted that their education qualifications were not valid outside the Punjab. The Tribunal accepts that each state legislature in India makes its own laws in relation to education. However, based on the country information set out at paragraphs 55 and 131 above, the Tribunal does not accept the [respondents’] arguments that qualifications obtained in one state of India will not receive any recognition elsewhere in India.

186.     Correspondingly, the Tribunal acknowledged that there are a range of languages spoken in India’s different states. However, the [respondents] in this case can communicate in 3 languages: Punjabi, English and Hindi, the latter two representing the official languages in India. Further, the country information indicates that Punjabi is widely spoken in New Delhi, along with English and Hindi. Similarly, Hindi is spoken in Mumbai and the educated elites in Mumbai converse in English.

187.     The Tribunal has had regard to the [respondents’] claims regarding the right-wing Shiv Sena political party, which is based in Mumbai. However, even if this became a particular issue for the [respondents] in Mumbai, there is little in the country information to suggest that the [respondents] would have to suppress their religious views if they lived in New Delhi.

188.     Accordingly, on balance, weighing each of these matters together, the Tribunal finds that the [respondents’] internal relocation within India would be reasonable in the circumstances.

189.     In making its findings the Tribunal has taken into account the submission that both [respondents] have suffered from depression, given the lack of family approval of their relationship, as well as the concern that the second-named [respondent] would rather commit suicide than forcibly be parted from the first-named [respondent].

190.     However, whilst the Tribunal understands that returning to India may be stressful for the [respondents], the Tribunal finds that the option of relocation to New Delhi, Mumbai or another major city in India is available to them, obviating the possibility that others would force them to separate as spouses against their wishes. The Tribunal also notes that it discussed relevant issues at length with the [respondents] and it is of the view that they had a real opportunity to describe why they fear returning to India.

191.     Accordingly, having considered the [respondents’] claims individually and cumulatively, based on matters set out above, the Tribunal finds that the [respondents] do not have a well-founded fear of persecution within the meaning of the Convention.

29    The Tribunal concluded that the decision of the delegate should be affirmed because the respondents could safely relocate within India.

The Proceedings in the Federal Circuit Court of Australia

30    On 29 December 2011, the respondents applied for judicial review of the Tribunal’s decision in the Federal Circuit Court of Australia.

31    The respondents filed an Amended Application for judicial review on 14 May 2012. In that Amended Application, the grounds of review were specified in the following terms:

1.    Jurisdictional Error. Failure to take a relevant consideration and error of law.

Particulars:

The Tribunal erred by identifying at paragraph [6] of the Decision that “some statutory qualifications enacted since then may be relevant” however failed to consider at all those statutory qualifications – in particular the Migration Amendment (Complimentary Protection) Act 2011.

2.    Jurisdictional Error. Error of law. Failure to take into consideration of the legitimate expectations of the [respondents] that the Tribunal would take into consideration Australia’s complimentary protection obligation under international and domestic common law in accordance with the High Court’s principles in The Minister for State for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273.

3.    Jurisdictional Error. Error of Law.

Particulars:

Failure to take into consideration Australia’s international obligations regarding the non-refoulement principle.

4.     Jurisdictional Error. Inappropriate weight being placed on Country Information [paragraphs 174 to 181 of the Decision].

Particulars:

The Tribunal fell into jurisdictional error by placing too much reliance on the Country Information in distinction to the caution urged by the His Honour Kirby J, in SZATV v MIAC (2007) 233 CLR 18 at [82] against what the Tribunal found to be un-corroborated evidence (see paragraph 177 of the Decision). Other Country Information available to the Tribunal, for example IND35I89, Mixed Marriages Mumbai 31.07.2009 mitigates against the unreasonable conclusion that inter-caste mixed marriages are geographically specific to the Punjab province in India. The conclusion is unreasonable leading to jurisdictional error in the circumstances of this case.

5.     Jurisdictional Error. Error of Fact. illogical and unreasonable conclusion. Relocation is not reasonable in the circumstances of this case.

Particulars:

The Tribunal fell into error by finding at paragraph [174] of the Decision that there is little information that Punjabi families perpetrated such crimes outside the Punjab. There is no evidence to suggest that they do not. The complaint of violence by the [respondents] applied equally to Hindu families. The Country Information available to the Tribunal at the time of the Decision makes no distinction concerning sectarian/family based violence being limited to only Sikhs in the Punjab and to the contrary makes reference to inter-caste violence prevailing within the Hindu communities throughout the Territorial boundaries of India. There was no evidence before the Tribunal that the persons threatening the [respondents] would limit themselves to the territorial boundaries of the Punjab and thus rendering the capacity of the [respondents] to relocate within India as a way of avoiding such violence as nugatory. The nature and extent of non-State based violence is that it does transcends jurisdictional and territorial boundaries. The basis of the threats directed at the Applicants renders the application of the “relocation” conclusion as illogical when the violence itself is only limited to the time to time location of the perpetrators. Relocation is contrary to the extensive statutory and common law provisions applied in the Family law jurisdictions of Australia which renders responsibility upon perpetrators, not victims.

6.     Jurisdictional Error. Error of Law. Failure to apply sections 6 and 10 of the Commonwealth Racial Discrimination Act 1975 when determining the reasonableness of relocation as against persons confronted by similar threats in Australia.

32    The Circuit judge heard the respondents’ Application on 27 August 2012. After the hearing, his Honour’s Associate sent an email to the legal representatives of the parties which included the following observations:

HH expects to deliver judgment shortly. However, HH wished to bring to the attention of the parties that the “additional country information”, referred to by the Tribunal at [125] – [132] in the Tribunal’s decision, does not seem to have been brought to the attention of the parties.

If that is so, it may be contrary to SAAP v MIMIA (2005) 228 CLR 294 and subsequent cases. Should either of the parties wish to comment, they are at liberty to do so in writing within 7 days.

33    The respondents offered no response to that communication. The Minister, however, sent a detailed submission by letter dated 27 February 2013. That letter was in the following terms:

CZBB and CZBC v Minister for Immigration and Citizenship (CAG 72/2011)

1.    We refer to the leave granted by his Honour Neville FM on 21 February 2013 to comment on the “additional country information” referred to by the Tribunal at [125] – [132] of the Tribunal's decision and the issue of whether the Tribunal's failure to bring that information to the applicants’ attention may be the type of error identified in SAAP & Anor v Minister for Immigration and Multicultural and Indigenous Affairs & Anor [2005] HCA 24; (2005) 228 CLR 294 (SAAP). The respondent’s response is set out below.

2.     We understand the issue raised by his Honour’s reference to SAAP to be whether the Tribunal may have breached section 424A(1) of Migration Act 1958 (Cth) (Act) in relation to its reliance on any of the “additional country information” set out in paragraphs [125] to [132] of its decision. Subject to subsections 424A(2A) and (3), section 424A(1) provides that the Tribunal must give to the applicant clear particulars of any information that the Tribunal considers would be the reason or part of the reason for affirming the decision under review: s 424A(1)(a).

3.     Section 424A(1) falls within Part 7 of Division 4 to the Act. That Part is an exhaustive statement of the natural justice hearing rule in relation to the Tribunal: section 422B.

4.     One express exception to the operation of section 424A(1) of the Act is the use by the Tribunal of information that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or another person is a member: section 424A(3)(a).

5.     It is well established that “country information”, such as that set out in [125] to [132] of the Tribunal’s decision, falls within the exception in section 424A(3)(a): Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) 140 FCR 572; VJAF v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 178; SZJJD v Minister for Immigration & Citizenship [2008] FCAFC 93; Minister for Immigration & Citizenship v SZHXF (2008) 166 FCR 298; SZMCD v Minister for Immigration & Citizenship (2009) 174 FCR 415.

6.     Accordingly, the [Minister] submits that SAAP is not apposite as, in SAAP, the information in question was adverse material it had received in evidence given by the first [respondent’s] eldest daughter which was specifically about the [respondent] and members of her family and so did not fall within the exception in paragraph 424A(3)(a): see [2005] 228 CLR 294 at page 348 per Hayne J. That is not this case in relation to the additional country information at [125] – [132] of the Tribunal’s decision.

34    The Circuit judge began his consideration of the respondents’ application by setting out a number of concerns which he had with the way in which the respondents had put their case in the proceeding before him (see esp [4]–[14] of his Honour’s Reasons for Judgment).

35    At [26]–[45], his Honour summarised the substance of the Tribunal’s decision, save for those paragraphs in which the Tribunal addressed the question of whether the respondents could reasonably relocate within India.

36    At [46]–[54] and [58]–[60], the Circuit judge referred to [166]–[191] of the Tribunal’s Decision Record.

37    At [55]–[57] of his Reasons for Judgment, the Circuit judge interrupted his summary of the Tribunal’s findings and reasons in respect of relocation to make some observations in general terms about the value of country information and the way in which the Tribunal used and uses country information from time to time. At [57], his Honour made clear that he had had no regard in the matter before him to the possible inconsistencies in country information used by differently constituted panels of the Tribunal. His Honour appears to have thought, no doubt based upon his Honour’s experience in migration matters, that it would be fairer if the Tribunal was required to specifically alert visa applicants to the country information upon which it was proposing to rely and was also required to alert those applicants to the way in which that information might be used in their case. Authorities which bind his Honour exempt general country information from the notification regime embodied in s 424A and s 424AA of the Migration Act 1958 (Cth) (the Act). As matters presently stand, his Honour was obliged to apply those authorities. His Honour accepted this and said that he would endeavour to do so.

38    At [62]–[72], his Honour discussed the meaning of jurisdictional error in the present context.

39    At [73], his Honour extracted some remarks made by Kirby J in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 at 43 [82]. His Honour did not refer to other authority on the importance and use to be made of country information at this point in his Reasons for Judgment.

40    At [74], his Honour cited some passages from Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at 647–648 [130]–[131] where the High Court explained the concept of illogicality or irrationality in the present context.

41    His Honour then moved on to give his reasons for the decision which he ultimately made. His Honour’s discussion of those reasons commences at [75] of his Reasons for Judgment.

42    At [75], his Honour set out the matters which he proposed to address in the following terms:

In what follows, I confine myself to the following matters: (a) the application of s.424A(3) and the consideration and use of “country information”; (b) was there proper consideration by the Tribunal of the High Court decision in Plaintiff M13/2011 in reaching its conclusion that it was reasonable for the [respondents] to relocate within India?, and (c) was the Tribunal’s decision in relation to relocation within India “illogical” or “irrational/unreasonable”?

43    At [76], his Honour began his consideration of the application of s 424A(3) of the Act to country information in the circumstances of the present case. His Honour noted that the respondents had not raised such an issue in either iteration of their Application for Judicial Review nor had they raised such an issue in any submissions made at the hearing.

44    As his Honour noted, the issue was first raised by his Honour in the email dated 21 February 2013 to which I have referred at [32] above. As his Honour correctly notes at [76] of his Reasons for Judgment, the only response which he received to that email was from the Minister who made submissions in the terms which I have extracted at [33] above.

45    At [77]–[97], his Honour referred to and, in some cases, extracted passages from a number of authorities dealing with the correct interpretation of s 424A(3) of the Act.

46    Under a further heading “The Tribunal’s Decision”, his Honour set out his reasons for concluding that the additional country information to which he referred at [98]–[109] was information about the respondents within the meaning of s 424A(3) and thus was required to be specifically drawn to the attention of the respondents pursuant to s 424A(3)(a) of the Act. While his Honour accepted that the information that was described by the Tribunal in its Decision Record as “Additional Country Information” was apt to be described as country information, he nonetheless concluded that it was transformed from being country information into being information about the respondents by reason of the fact that the Tribunal had underlined certain portions of the extracts set out in the relevant paragraphs of the Tribunal’s Decision Record (viz [125]–[132] of the Tribunal’s Decision Record).

47    At [98]–[109], his Honour said:

98.    At [125] – [132], the Tribunal records “Additional Country Information”, “Population Statistics and Official Languages”, “Education” and “Corruption Issues.” In my view, this information is somewhat “curious” because, at [111], the Tribunal stated:

The Tribunal invited the [respondents] to comment upon the country information set out at paragraphs regarding relocation within India at paragraphs 50-53 above. In addition, the Tribunal noted there was little in the country information to indicate that Punjabi families perpetrated honour crimes outside the Punjab.

99.    Having previously invited the [respondents] to comment on matters of concern to the Tribunal, somewhat surprisingly, this ‘additional country information’, together with the other matters to which I have referred, was never provided to the [respondents], nor were they invited, or provided an opportunity, to comment on it. In relation to this information, the [Minister] said that s.424A(3)(a) applied, so as not to require it to be put to the [respondents].

100.    However, what is striking, and certainly distinct from ‘general country information’ that would otherwise come within the provenance of s.424A(3)(a), is that the Tribunal went to the trouble of underlining particular parts of this extra country information and stated (or confirmed) that the Tribunal itself provided this emphasis. Presumably this was to stress, for the attention of the [respondents] (and anyone else reading its reasons), that this highlighted country information was directly relevant or applicable to [respondents] and the application before it.

101.    Put another way: in this case, the Tribunal clearly went to the trouble of underlining, and thereby highlighting, specific country information, which otherwise would not be required to be provided to the [respondents] for information and comment pursuant to s.424A(3)(a). However, the necessary inference must be that the highlighted sections of that information, according to the Tribunal, was in fact (and was intended to be) of particular relevance to the [respondents] before it and not of more general application. Otherwise, why go to the trouble of highlighting (by underlining and by stating that the Tribunal had provided the emphasis) it if it was (or is) not directly relevant to these [respondents] and their particular circumstances? By emphasising this precise information, the further, necessary inference must be that the Tribunal intended to use and to rely upon it in determining [adversely] the [respondents’] claim. Yet, there is no indication in the reasons of the Tribunal that it provided any of the highlighted information to the [respondents].

102.    Indeed, on the face of the Tribunal’s reasons, it seems clear that the Tribunal did not refer any of the information it set out at [125] – [132] to the [respondents], or give them any opportunity to comment on it. Not to have done so, and then to rely on it to determine the application adversely to the [respondents] is a course that is antithetical to the policy and purpose of s.424A articulated in the joint judgment of Tracey and Foster JJ in SZMCD cited earlier in these reasons.

103.    Having previously sought comment from them in relation to, among other things, country information, and but for s.424A(3), it is somewhat surprising that the Tribunal did not do so in relation to the additional matters set out in [125] – [132] of its reasons. This is especially so since the information there recorded highlights – by the Tribunal – certain important matters, such as assessments of the Shiv Sena by, among others, “Human Rights Without Frontiers International”, language matters in relation to Delhi and Mumbai, country information regarding education, and details of the extent of political corruption in India. In relation to each of these particular matters the [respondents] gave evidence to the Tribunal.

104.    Each of the matters just noted appear in that part of the Tribunal’s decision headed “Findings and Reasons”, which begin at [133]. Thus matters concerning ‘official languages’ are referred to by the Tribunal at [143] and [144], and the same matter is relevant to the Tribunal’s comments concerning relocation, at [166] and following. Inter-caste marriages are discussed by the Tribunal at [172], while corruption and state protection are addressed at [173] and [177], and country information at [173] and [177]. The Tribunal referred to additional information concerning ‘education’ at [131], and specifically to this paragraph (and [55]) at [185]. Likewise, the additional information regarding Shiv Sena is located at [125] – [126], and in its ‘Findings and Reasons’ at [187].

105.    All of this is to identify that, on a plain reading of the Tribunal’s ‘Findings and Reasons’, there is an express, or reasonably inferred, connection between some or all of the additional material set out at [125] – [132] of its decision which has been highlighted (a) by underlining and (b) by notation, but in relation to none of it was it referred to the [respondents] for consideration or comment. As I have already said, the fact that the Tribunal went to the trouble of underlining sections of this additional information confirms that the Tribunal considered it to be of particular significance to its reasons and conclusion in relation to these particular [respondents].

106.    Further, by accepting the highlighted sections of the additional country information (with emphasis being provided by the Tribunal itself), the Tribunal seemingly has given priority to [untested and unchallenged] “information” notwithstanding that it accepted the evidence of the parties. Thus, on its face, “information” (and all of the imprecision suggested by that term as observed by Weinberg J in SZEEU) takes precedence over “evidence” accepted by the Tribunal given by the parties.

107.    In my view, by highlighting specific or particular parts of the additional country information (and not only highlighting the information but also adding after each section underlined the italicised words - “Tribunal emphasis”), the Tribunal has made information specifically (as opposed to generally applicable to members of a certain class) applicable to the [respondents] before it. To paraphrase the words of the Full Court in SZHXF, the Tribunal in this case has highlighted the information so that it can and should properly be characterised as information “about” or specifically referable to the [respondents].

108.    To the [respondents] and to any reader of its reasons, the emphasis given to the additional country information by the Tribunal must be taken to be confirming that the underlined sections played a particular or specific function in the Tribunal coming to its decision in relation to the [respondents] before it. But for the underlining, and the notation of “Tribunal emphasis”, the additional country information would, more likely than not, come within the terms of s.424A(3)(a) of the Act. However, by taking the action that it did, in my view, the Tribunal brought that country information within the mandatory terms of s.424A(1), whereby the Tribunal must give to the [respondent(s)] “clear particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review.” It failed to provide this specific information, or ‘clear particulars of it’, to the [respondents].

109.    Having taken the course that it did in its use of the additional, highlighted country information, the Tribunal failed to conform to the terms of s.424A(1) and denied the [respondents] the opportunity to be apprised of information upon which the Tribunal plainly intended to, and did in fact, rely in affirming the decision under review. Further, failure to provide the information in the circumstances outlined here clearly failed to meet the objects of Part 7 of the Act as recorded by the Full Court in SZMCD at [71] and [73], noted earlier in these reasons. The failure to comply with the terms of s.424A of the Act as detailed here, in my view, constituted jurisdictional error.

48    At [110]–[113], his Honour addressed the second issue which he had specified at [75] of his Reasons for Judgment.

49    After referring to the decision of Hayne J in Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667 (Plaintiff M13/2011), his Honour concluded that the Tribunal had not adequately or properly considered the judgment of Hayne J in Plaintiff M13/2011 and had thereby committed jurisdictional error.

50    At [112]–[113], his Honour said:

112.    Respectfully, there is rather more to the High Court judgment of Hayne J than only or just “paragraph 19” as stated by the Tribunal. In my view, in the light of the authorities to which I have referred, the Tribunal, as a matter of procedure, did not adequately or properly “consider” his Honour’s judgment in Plaintiff M13/2011. Had it done so, the result may have been the same, or it may not. But an inadequate consideration of a High Court case, which is directly relevant to the matter before the Tribunal, in my view, has also led to jurisdictional error.

113.    I should note that, in my view, it is not for this Court to direct the Tribunal how, to what degree, in what way, or which particular [other] parts of a certain judgment should form part of the Tribunal’s consideration. This is particularly so in relation to judgments of the High Court. To give such direction would risk fettering the task and responsibilities of the Tribunal and further risk interfering with the discretion (and fact-finding responsibility) that reposes with the Tribunal alone.

51    At [114]–[116], his Honour considered and rejected the argument based upon illogicality or irrationality which he had earlier posed for consideration.

52    At the very end of his Reasons for Judgment, his Honour set out in summary form the two bases upon which he proposed to grant the relief sought by the respondents in the proceedings before him. In particular, at [117], his Honour said:

117.    The only grounds upon which, in my view, the Tribunal’s decision may properly be challenged are:

(a)     its treatment, consideration and use of the highlighted and emphasised – by the Tribunal – additional country information, which it failed to provide to the [respondents] and give them an opportunity to comment on it, thereby constituting a failure to comply with the requirements of s.424A(1) of the Act, and

(b)     its inapt or cursory consideration of the High Court decision in Plaintiff M13/2011.

The Appeal in this Court

53    On 12 June 2013, the Minister filed a Notice of Appeal in this Court. By his Notice of Appeal, the Minister attacked both of the conclusions reached by the learned Circuit judge which he set out at [117] of his Reasons for Judgment. The grounds of appeal relied upon by the Minister in his Notice of Appeal were specified in the following terms:

1.    The primary judge erred in holding that the Refugee Review Tribunal (Tribunal) failed to comply with section 424A(1) the Migration Act 1958 (Cth) (Act) in relation to the information cited at paragraphs [125] to [132] of the Tribunal’s reasons (Country Information). The primary judge ought to have held that the Country Information satisfied the criterion in section 424A(3)(a) of the Act.

2.    The primary judge erred in holding that the Tribunal erred by failing to adequately and/or properly consider Plaintiff M13/2011 v Minister for Immigration and Citizenship (2011) 277 ALR 667; [2011] HCA 23.

54    Counsel who appeared for the respondents at the hearing before me did not seek to defend the Minister’s attack upon the Circuit Judge’s conclusions concerning the judgment of Hayne J in Plaintiff M13/2011. Nonetheless, it was incumbent upon the Minister to satisfy me that his Honour erred when his Honour concluded that the Tribunal had committed jurisdictional error by not paying adequate or proper regard to that decision. I have no doubt that the Minister was correct when he submitted that his Honour erred in the conclusion which he reached in relation to the judgment of Hayne J in Plaintiff M13/2011. I state my reasons for this conclusion when I come to deal with ground 2 in the Minister’s Notice of Appeal.

Ground 1

55    The Minister submitted that the fact that a tribunal might underline or emphasise certain aspects of general country information cannot change the essential nature of that information and its proper characterisation for the purpose of s 424A of the Act. The Minister went on to submit that, when a tribunal chooses to rely upon adverse country information, it is always because it is considered by the tribunal to be in some way relevant to the claims being made by the visa applicant. It was submitted that such information cannot be made more directly relevant by the process of the tribunal underlining parts of that information. The Minister also submitted that there was no principled basis upon which the Circuit judge should have departed from the clear line of authority that country information was exempt from the operation of s 424A(1) of the Act. In support of this latter proposition, the Minister cited Minister for Immigration and Multicultural and Immigration and Indigenous Affairs v NAMW (2004) 140 FCR 572; VJAF v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 178; SZJJD v Minister for Immigration and Citizenship [2008] FCAFC 93; Minister for Immigration and Citizenship v SZHXF (2008) 166 FCR 298; and SZMCD v Minister for Immigration and Citizenship (2009) 174 FCR 415.

56    In addition to making the submissions which I have briefly described at [55] above, the Minister made a number of specific submissions directed to the portions of the extracts set out at [125]–[132] of the Tribunal’s Decision Record which were underlined by the Tribunal for emphasis and made a number of submissions to the effect that the information which was underlined was neither controversial nor adverse to the respondents. I think that the suggestion underlying these particular submissions was that the respondents would have been well aware of the matters which were underlined in the paragraphs of the Tribunal’s Decision Record to which I have referred.

57    Counsel for the respondents submitted that the underlining to which I have referred and which was relied upon by the Circuit judge as transforming what would otherwise have been run-of-the-mill country information into information specifically about the respondents, must be accorded some significance. He adopted the reasoning of the Circuit judge and endeavoured to justify that reasoning by submitting that the material referred to and emphasised by the Tribunal at [125]–[132] of its Decision Record obviously had great significance in the Tribunal’s ultimate resolution of the respondents’ Application for Review. Counsel referred me to p 256 [182] in the judgment of Weinberg J in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 in support of this submission. Counsel also submitted that the fact that material was “uncontroversial” and “not adverse” to the respondents was irrelevant. The question is: Is it specifically about them?

58    At all relevant times, s 424A provided:

424A     Information and invitation given in writing by Tribunal

(1)    Subject to subsections (2A) and (3), the Tribunal must:

(a)    give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)    ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review, and the consequences of it being relied on in affirming the decision that is under review; and

(c)    invite the applicant to comment on or respond to it.

(2)    The information and invitation must be given to the applicant:

(a)    except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)    if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(2A)    The Tribunal is not obliged under this section to give particulars of information to an applicant, nor invite the applicant to comment on or respond to the information, if the Tribunal gives clear particulars of the information to the applicant, and invites the applicant to comment on or respond to the information, under section 424AA.

(3)    This section does not apply to information:

(a)    that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)    that the applicant gave for the purpose of the application for review; or

(ba)    that the applicant gave during the process that led to the decision that is under review, other than such information that was provided orally by the applicant to the Department; or

(c)    that is non disclosable information.

59    The authorities cited by the Minister to which I have referred at [55] above support the submissions made by the Minister by reference to those authorities. It is now generally accepted in this Court that information of a general character which is frequently described in decisions of the Tribunal and in the Courts as “country information” is not required specifically to be drawn to the attention of visa applicants: see, in particular, VJAF v Minister for Immigration and Multicultural and Indigenous Affairs at [15]. Nonetheless, in the present case, certain country information was drawn to the respondents’ attention. However, it is common ground that the material which appeared under the heading “Additional Country Information” at [125]–[132] of the Tribunal’s Decision Record was not specifically drawn to the attention of the respondents prior to the Tribunal delivering its decision.

60    The precise question raised by ground 1 of the Minister’s appeal is whether the Circuit judge was correct in characterising the country information extracted in those paragraphs (or, perhaps, the underlined portions of those extracts) as material which was required to be given to the respondents by reason of the operation of s 424A(1)(a) of the Act because the information was not exempted from that requirement by reason of the operation of s 424A(3)(a) of the Act.

61    The learned Circuit judge took the view that the fact that the Tribunal had underlined certain portions of those paragraphs transformed what would otherwise have been general country information not requiring disclosure into information “… specifically about the [respondents] …” and was thus required to be disclosed. At [100] of his Honour’s Reasons for Judgment, his Honour said that the underlined country information was directly relevant or applicable to the respondents and to their Application for Review in the Tribunal. Again, at [101], his Honour opined that the highlighted sections were of particular relevance to the respondents.

62    But the critical question is whether the information itself is “specifically about [the respondents] or another person …” or whether it is information which is more aptly described as general information about a class of persons of which the respondents or other persons are members. With great respect to the Circuit judge, the material at [125]–[132] of the Tribunal’s Decision Record is not aptly characterised as material specifically about the respondents or other persons but is rather more aptly characterised as information of the more general kind. The character and nature of that information was not changed in any way by the circumstance that the Tribunal underlined portions of it. The underlining merely operated to emphasise certain parts of the extracts.

63    The respondents are not mentioned by name in the extracts set out at [125]–[132] of the Tribunal’s Decision Record. The language chosen is demonstrably directed at groups of people in general within India, not specifically at the respondents. The information is directed at the class of persons most susceptible to being murdered by way of honour killing which would include the respondents if they return to the Punjab. But that is not enough.

64    It is, of course, obvious that the subject matter of the material set out at [125]–[132] of the Tribunal’s Decision Record is material relevant to the Tribunal’s consideration and determination of the respondents’ claims. The subject matter of the extracts is directly relevant to the question of whether relocation within India would be reasonable for the respondents in the circumstances of the present case. But the mere fact that the material is relevant to particular persons, because its content is pertinent to the matters at hand, does not make the information information that is specifically about those persons. There is an important difference between information that is relevant to a visa applicant’s claims and information that is both relevant to a visa applicant’s claims and specifically about the visa applicant.

65    In my judgment, the learned Circuit judge erred when he concluded, as he did, that the information at [125]–[132] of the Tribunal’s Decision Record should have been specifically drawn to the attention of the respondents in the present case as required by s 424A(1)(a) of the Act.

66    For these reasons, I think that the Minister has made out ground 1 in his Notice of Appeal.

Ground 2

67    As I have already mentioned at [54] above, Counsel for the respondents did not seek to defend that part of the Circuit judge’s reasoning which is challenged by the Minister by ground 2 of his Notice of Appeal. Counsel conceded that the Circuit judge was in error in respect of his conclusion that the Tribunal had committed jurisdictional error in its handling of the judgment of Hayne J in Plaintiff M13/2011. That concession was, in my judgment, properly made.

68    In the circumstances, I need not say very much about ground 2.

69    Plaintiff M13/2011 is a decision of a single judge of the High Court and is entitled to be accorded appropriate respect by courts inferior to the High Court and tribunals called upon to apply the law of the land. This does not mean, however, that a tribunal which misunderstands the principles articulated and applied in Plaintiff M13/2011 or which misapplies those principles has committed jurisdictional error. Judges and decision-makers may err in discerning and applying the law or in making factual determinations. Nonetheless, in many circumstances, such errors will be errors within jurisdiction and will not constitute jurisdictional error for the purposes of judicial review proceedings. It will be a rare case indeed where the mere failure correctly to apply the reasoning of the High Court without more would constitute jurisdictional error. Such a failure may evidence a more fundamental failure to address the task required of the decision-maker which in turn might be properly characterised as jurisdictional error. But that is not this case. At [169]–[170] of its Decision Record, the Tribunal specifically referred to the judgment of Hayne J in Plaintiff M13/2011 and purported to apply the test which his Honour expounded in that judgment. If an error was made, it was an error made within jurisdiction.

70    As is obvious, the question of whether or not the Tribunal came to the right (or, even, a reasonable) decision in respect of the prospects for the respondents to relocate within India is not a matter which is before me in the current appeal. Accordingly, it is not a matter which I need or ought to address.

Conclusions

71    For all of the above reasons, the appeal must be allowed and the orders made by the Circuit judge below set aside. In addition, in lieu of those orders, the Application for Judicial Review in the Federal Circuit Court must be dismissed with costs.

72    There will be orders accordingly.

Associate:

Dated:    8 November 2013