FEDERAL COURT OF AUSTRALIA

MZZVK v Minister for Immigration and Border Protection [2016] FCA 854

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed 23 December 2015 be dismissed.

2.    The applicant pay the costs of the first respondent, to be assessed if not agreed.

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

REASONS FOR JUDGMENT

MCKERRACHER J:

APPLICATION TO REINSTATE

1    The applicant applies to reinstate a proceeding that I dismissed pursuant to r 30.21 of the Federal Court Rules 2011 (Cth) on 20 November 2015 by reason of the applicant’s non-appearance at the time fixed and notified for the hearing of his appeal.

2    By interlocutory application dated 23 December 2015, supported by an affidavit of 22 December 2015, the applicant explains that he was ill and unable to attend the court on the day, so he sent a medical certificate to the Court detailing his illness. He explains that on 20 November 2015, he attended upon Dr Mian from the Coburg Medical Centre in Sydney Road, Coburg, Victoria. He was diagnosed as suffering from an acute viral illness and was deemed to be unfit for work until 21 November 2015. He annexed a medical certificate of Dr Mian. The applicant explains that he received the notification from this Court that his application had been dismissed. He lodged the interlocutory application for the dismissal order to be set aside and for the case to be reinstated as soon as possible. The applicant complains of a denial of natural justice and procedural fairness in that he was not granted an adjournment so that he could have an opportunity to present his case. He explains that the medical certificate, presumably with a request for an adjournment, was sent to the Court by facsimile as soon as he was seen by the doctor.

3    There is no record of the faxed medical certificate being received by the Court or any other communication by which the applicant sought an adjournment of the proceeding.

4    The applicant further said (by way of his affidavit dated 22 December 2015) that the fact that he produced a medical certificate and the certificate described the condition he was suffering from should have been ample evidence on which to grant an adjournment, particularly given that this was the first application for an adjournment. The applicant further argues that the granting of an adjournment will not cause prejudice to any other party and that he has an ‘arguable case’ to put forward to the Court.

5    The Court has power under r 39.05(a) of the Rules to set aside the orders made on 20 November 2015 in an appropriate case. Although the applicant’s application purports to be made under r 17.01, I will treat it as being under r 39.05(a) of the Rules. (An application under r 17.01 requires a proceeding to be on foot, which is no longer the case.)

MINISTER’S OPPOSITION

6    The Minister opposes the application, making the point that the applicant was on notice of the time and date of the hearing, at least from the letter sent to him on 13 November 2015, which enclosed the Minister’s submissions. The Minister submits that the fundamental principle that a party who has had the opportunity to appear and oppose the proceedings should be bound by a judgment of the Court has been engaged: Deputy Commissioner of Taxation v Hua Wang Bank Berhad (No 2) [2010] FCA 1296.

7    The Minister, in substance, points to:

    the applicant’s assertion that he was ‘ill and unable to attend court’ on 20 November 2015 and that he ‘sent a medical certificate to the court, detailing his illness’, but, insofar as the Minister is aware there was no evidence before the Court at the time fixed for the hearing of the original application of any request for an adjournment or as to the cause for the adjournment. (I can certainly confirm that, as indicated above, if the medical certificate or any other communication was indeed faxed to the Court, it certainly did not come to my attention and there was certainly no indication in the hearing before me that the Minister was aware of any such application or medical certificate.); and

    the fact that, although the applicant now asserts that he was suffering from an ‘acute viral condition’ which rendered him unfit for work, there was no evidence as to:

(1)    how his condition affected his ability to attend court and participate in the proceeding, especially noting that he was at least capable of leaving his home and attending a doctor’s practice; and

(2)    how his condition affected his ability to submit evidence to the Court on or before 20 November 2015 in support of his assumed application for an adjournment of the hearing date.

8    In support of the argument that the applicant must advance evidence to the effect that the medical condition was such as to preclude him from being able to attend Court and meaningfully to participate in the proceeding, rather than simply being unfit for some unspecified work, the Minister relies upon NAKX v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 1559, which was recently applied in Singh v Minister for Immigration and Border Protection [2016] FCA 620.

9    As to the proposition that the Court should not interfere with its previous judgment unless there were circumstances which precluded an applicant from bringing to the attention of the Court the relevant evidence in support of any application for an adjournment, the Minister relies upon MZAAV v Minister for Immigration and Border Protection [2015] FCA 820.

10    On that basis, the Minister contends there is no ‘good reason’ (to adopt the words of White J in Lal v Minister for Immigration and Border Protection (No 2) [2014] FCA 892 warrant the Court exercising the power under r 39.05(a) of the Rules to set aside the orders of 20 November 2015.

11    Regardless of these matters, the Minister argues that there are real difficulties with the substantive application. I will return to these matters and now consider the substantive issues.

SUBSTANTIVE APPLICATION

12    By the initial but dismissed originating application, the applicant sought to quash an order made on 29 August 2014 in the Federal Circuit Court of Australia in MZZVK v Minister For Immigration & Anor [2014] FCCA 1914. In the application filed in that court before the primary judge, the applicant sought an extension of time to lodge an application for judicial review of a decision of the Refugee Review Tribunal. Her Honour refused the application for an extension of time.

13    The delegate had recorded that the applicant’s claims were vague and unsubstantiated and he was not satisfied that the applicant had entered into the relationship which was the foundation of his claim and was also not satisfied that there was a real chance of serious harm or a real risk of significant harm to him.

14    The claims of the applicant were and are as follows:

    He was born in Punjab in 1988 and spoke, read and wrote English and Punjabi. He is of Hindu ethnicity.

    He arrived in Australia in 2008 on an Indian passport. His only address in the last ten years outside Australia was in Nawanshahr. He had two years of education in Melbourne.

    In 2006 he ‘fell in love with a Muslim girl, Razia’. Her father was a Muslim extremist. He met her regularly until her parents caught the couple at a Valentine’s party on 14 February 2007. Her father brought a few friends and he was badly beaten. Her father took her away and threatened that if he tried to call or meet Razia he would be killed. The couple kept on meeting and her father was ‘seeking him’. As the father was very influential, the applicant left India. He had been injured and beaten by the Muslim community. He was ‘trapped to be killed in a road accident’.

    He fears that he will be killed by Razia’s father, who is very influential and has close relations with the ‘WAQK [sic]’ Board of Punjab. The applicant further fears harm from the ‘WAQF’ Board, the police and the Muslim community because of the inter-religious relationship with a Muslim girl.

    He would not receive protection from Razia’s father due to his influence and his close alliance with the Chairman of that Board. He may be falsely implicated in a crime and punished, killed by Razia’s father or trapped or encountered to death by police or the local mafia (Muslim extremists).

Before the Tribunal

15    The original Tribunal decision of 27 September 2013 considered an application for review of the decision made by a delegate of the Minister to refuse to grant the applicant a protection visa. The applicant claims to be a citizen of India and applied to the Department on 8 January 2013. The delegate’s decision to refuse the application was made on 18 March 2013. He appeared before the Tribunal in August 2013 to give evidence and to present arguments.

16    The Tribunal noted that the applicant also did not attend an interview with the Department of Immigration and Citizenship (DIAC) in relation to his application.

17    The Tribunal set out detailed country information, information directed to relocation, general background concerning the applicant specifically and an examination of the applicant’s account of the relationship which consumed several pages of the Tribunal’s reasoning. The Tribunal descended to an analysis of the connections and wealth of Razia’s father, what would happen to the applicant if he returned to India, and the possibilities of relocation. The Tribunal (at [72]) was not satisfied that Razia’s family had any relevant connections as claimed and the Tribunal did not accept any of the claims that he advanced in that regard. It went on to explain the reasoning behind this conclusion and concluded (at [81]) there was no real chance or real risk that he would suffer harm in a place of relocation.

18    As to complementary protection, the Tribunal concluded that it was satisfied that there was a real risk that the applicant would suffer physical, mental or other harm sufficient to constitute ‘significant harm’ as defined in s 5 of the Migration Act 1958 (Cth) if he were to reside in his home region, but for reasons it set out, that would be confined to the applicant’s home region and there would not be a real risk that he will suffer significant harm in areas outside of his home region in the Punjab. The Tribunal was of the view that relocation to an area of India outside his home region was reasonable. It was not satisfied that the applicant was a person to whom Australia had protection obligations under the Convention relating to the Status of Refugees. Opened for signature 28 July 1951 189 UNTS 137 (entered into force 22 April 1954), as amended by the Protocol relating to the Status of Refugees. Opened for signature 31 January 1967 606 UNTS 267 (entered into force 4 October 1967) (Refugees Convention) and he did not satisfy the criterion set out in s 36(2)(a) or s 36(2)(aa) of the Migration Act. There was no suggestion that the applicant satisfied s 36(2), on the basis of being a member of the same family unit as a person who satisfies s 36(2)(a) or (aa) and who holds a protection visa.

Before the Federal Circuit Court

19    The applicant pursued an application for judicial review in the Federal Circuit Court three days out of time. The primary judge set out in at least as much detail as I have, the process of analysis of the Tribunal and then turned to the applicant’s grounds of review and the arguments of the Minister.

20    Her Honour found that the factual findings were reasonable, particularly in light of the fact that the applicant himself raised no other objection to relocation apart from his fear of his girlfriend’s family locating him and his own desire to see his parents. With respect to the latter, the Tribunal referred to the fact that he had only visited his family once since 2008 and that his father had visited him in Melbourne and could reasonably visit him if he lived in another part of India.

21    Her Honour considered that the only further matter which the Court needed to consider was whether the failure of the Tribunal to make an express finding that the serious harm to which the applicant might be subjected in his home area was for a Convention reason, amounted to error on the part of the Tribunal (at [46]). There was, arguably, a conflict of authority on this point which her Honour closely examined (at [47]-[68]). Her Honour noted (at [47]) that in SZATV v Minister for Immigration and Citizenship (2007) 233 CLR 18 the High Court considered that a well-founded fear of persecution need not always extends to the whole territory of an applicant’s country of nationality for the applicant to qualify as a refugee under Article 1A(2) of the Refugees Convention. However, a person will be excluded from refugee status if, under all of the circumstances, it would be reasonable to expect him or her to seek refuge in another part of the same country.

22    Her Honour then considered the approach of Beazley J in Syan v Refugee Review Tribunal (1995) 61 FCR 284 (at [49]-[51]) (footnotes omitted):

49.    In Syan, her Honour Beazley J referred to the fact that Australia had adopted obligations to protect persons who were Refugees within the meaning of Art 1A(2) of the Convention. Her Honour then quotes the relevant provision. In the matter before her the Tribunal had stated:

Exactly at what point the ‘internal flight’ issue needs to be dealt with is an interesting issue in refugee law. This Tribunal’s view is that failure of state protection is part and parcel of the process in determining whether or not a person is a refugee. It is not something tacked on the end or in addition to, the Convention definition. The question of ‘internal flight’ may be legitimately addressed at different points in different decisions . ..

50.    In that case, Counsel for the applicant acknowledged that although the Tribunal’s approach in going directly to the internal flight issue would not necessarily result in an unjust or wrong result, it was an error of principle to deal with the matter by asking the wrong question, or adopting an approach which was not open on the legislation.

51.    Beazley J went on to make the following statement:

However, I am of the opinion that the Tribunal in the present case did not apply a wrong test. Rather, it approached the matter on the basis of an assumption, namely that the applicant would otherwise satisfy the Convention definition of refugee. On that assumption, it considered the question of internal flight. Had it determined that matter in favour of the applicant, it would have been necessary to determine whether the applicant had a well-founded fear of persecution for a Convention reason. However, having found against the applicant on the question of internal flight, it was not necessary to determine whether the applicant had a well-founded fear of persecution based on a Convention reason. In my opinion, it was open to the Tribunal to consider the matter in that way.

23    Judge Whelan then (at [52]-[55]) referred to Aras v Minister for Immigration and Ethnic Affairs (1998) 50 ALD 797, in which Finkelstein J concluded (at 800):

Once the tribunal found, as it did, that it was reasonable for the applicant to relocate to another part of Turkey to “solve his problems” the tribunal was bound to conclude that the applicant was not a refugee and therefore not entitled to a protection visa.

The applicant contends that the tribunal erred in law in considering the issue of relocation without first having determined whether the applicant had a well-founded fear of persecution at least in the area, from whence he came. The submission is that unless the tribunal made such a determination, being a determination that could only be made after the tribunal had considered all of the relevant material in some detail and made findings based on that material, it was not possible for the tribunal to determine whether it was reasonable for the applicant to relocate to some other region.

Once it is accepted that an applicant does not fit the definition of refugee because he is able to obtain protection from persecution in some region of his or her country of nationality, there is no reason why that issue cannot be considered without the tribunal having first determined whether the applicant would in all other respects satisfy the definition.

24    Judge Whelan noted (at [55]) that Finkelstein J found support for that proposition in the decision of Syan, finding that Beazley J’s approach was clearly correct.

25    Her Honour noted (at [56]) that in Egbuono v Minister for Immigration and Multicultural Affairs [2000] FCA 1931, Carr J considered that it was not necessary to resolve the question of whether an applicant had a well-founded fear of persecution because the Tribunal could be seen to have decided that matter by considering whether the applicant might be reasonably expected to relocate, in that case within Nigeria.

26    Her Honour also discussed other similar decisions (at [57]-[60]) (footnotes omitted):

57.    In Ravind Chand v Minister for Immigration and Ethnic Affairs [1997] FCA 138 (“Ravind Chand”), Moore J found support for the approach taken by the Tribunal in the judgment of Beazley J in Syan. In Ravind Chand, the approach taken by the Tribunal was to assume that the applicant had a well-founded fear of persecution, having regard to the applicant’s account of his circumstances. Having made that assumption, the Tribunal went on to consider whether the applicant was unable, or owing to a well-founded fear of persecution, unwilling to avail himself of the protection of his country of nationality. His Honour considered that the approach adopted by the Tribunal in considering the circumstances of the Applicant was open to it.

58.    Similarly, in S14/2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1153, Moore J also considered that it was open to the Tribunal to conclude that the applicant in that case could relocate to Jakarta where he would not be at risk of harm without addressing, at least expressly, whether he would be at risk of harm were he to return to Aceh. His Honour adopted the same approach in SZADJ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 1418, finding that it was open to the Tribunal to determine the matter by considering whether there was some location within an asylum-seeker’s country of nationality or residence (other than the location in the country where he or she came from or lived) where the asylum-seeker could reasonably expected to live and where he was not at risk.

59.    In SZENJ v Minister for Immigration and Citizenship [2007] FCA 734, Downes J considered whether the Tribunal had erred by failing to consider a particular claim and form a firm conclusion:

However, the reason why the Tribunal did not firmly resolve this issue is that it proceeded on another basis. It proceeded on a basis which accepted that the claim was true without actually so finding and looked at the consequences.

60.    His Honour then looked at the relevant passages from the reasons for decision and went on to say that:

It is well-established that an answer to a claim for refugee status can be found in a circumstance in which an applicant can relocate and it is reasonable to expect the applicant to do so.

The crux of the argument put on behalf of the appellant is that before the second step was taken there should have been a positive determination on the first question as to whether there was detention or not. I do not agree that that is a necessary prerequisite to a consideration of relocation. In many cases it may be desirable for decision-makers to address the first question to conclusion, but I do not think that failure to do so gives rise to any relevantly appealable error.

27    Then her Honour (at [61]-[65]) considered two other cases in which a different view had been taken:

61.    I turn now to consider two decisions by her Honour, Collier J, in dealing with appeals from Judge Driver of this Court. The first of these was an appeal from a decision of his Honour in SZQMR v Minister for Immigration and Citizenship [2011] FMCA 992. In two paragraphs of that decision, his Honour made the following comments:

43. . . . It is only when a well-founded fear of serious harm for a Convention reason is established that the issue of relocation arises. Decision-makers need to be careful not to put the cart before the horse.

. . .

46. Nevertheless, it would be a concern if it appeared that the Tribunal was too quick to resort to the relocation principle as an easier option than rigorously testing and resolving protection claims.

62.    Her Honour, in considering the appeal, referred to reservations expressed by Judge Driver at paragraphs [38] to [46] of his decision. She observed that she considered these reservations to be well founded.

63.    In SZSLG, her Honour was again dealing with an appeal from a judgment of Judge Driver. At paragraph [12] of the judgment, her Honour notes the following:

His Honour took issue with the Tribunal’s statement at [74] of its reasons that in light of its finding on relocation it did not have to consider the issue of state protection. His Honour disagreed, stating that there are no shortcuts in the reasoning process and that the issue of state protection is an essential step that cannot be avoided by making a finding on relocation.

64.    Her Honour later stated:

As his Honour below observed at [37]-[39], the Tribunal appears to find that the appellant has a well-founded fear of persecution in his home area without expressly finding that such persecution would be for a Convention reason. The Minister submits that the inference which should properly be drawn from this is that, presumably, the Tribunal considered that there was an unstated Convention nexus for its finding that the appellant had a well-founded fear of persecution in his home area. The Minister submits further, however, that even if the Tribunal did not, any error in the decision could only have been in the appellant’s favour and would not justify the grant of relief as it could not have affected the outcome: Jankovic v Minister for Immigration and Ethnic Affairs (1995) 56 FCR 474 at 477, House v Defence Force Retirement and Death Benefits Authority (2011) 193 FCR 112.

65.    Her Honour went on to say that she was not persuaded by the Minister’s submission on this issue:

In my view the apparent failure of the Tribunal in this case to come to grips with the question whether the appellant actually had a well-founded fear of persecution for a Convention reason goes to the heart of its decision. Although the Tribunal found that the appellant could relocate, it is difficult to see how such a finding could be made without a proper appreciation of the appellant’s circumstances and whether there was a Convention reason for his well-founded fear of persecution.

28    In light of the above analysis of the relevant cases, her Honour concluded (at [66]-[68]):

66.    In this matter, I am satisfied that the Tribunal clearly identified and appreciated the Applicant’s circumstances and dealt with his claim on that basis. Further, the claim had been identified by the delegate as a claim based on religion, for the purposes of the Convention. Both the Applicant and the Tribunal appear to have dealt with the review of the delegate’s decision on that basis. I consider it to be implicit in the Tribunal’s findings, in the absence of a claim based on any other ground, that its conclusion that the Applicant could be exposed to serious harm in the area from which he came was based on the Convention reason of the Applicant’s religion.

67.    On that basis, it is not necessary for me to reconcile the decision of Collier J in particular, in SZSLG, with the line of authority, which follows the decision of Beazley J in Syan. I am, however, of the view that a finding that a person is not a refugee because they are able to relocate to an area of the country where they would not have a well-founded fear of persecution is part and parcel of determining whether the person qualifies for refugee status within the meaning of s.36(2) of the Act and Article 1A(2) of the Convention. In order to reach such a conclusion, it is clearly necessary for the Tribunal to make findings of fact concerning the Applicant’s circumstances. It does not appear to me, however, that is necessary to reach a conclusion that the person has a well-founded fear of persecution for a Convention reason before considering whether they could relocate to an area where there was no basis for a well-founded fear of serious or significant harm.

68.    On that basis I am not persuaded that the application has merit and that it would be in the interests of justice to grant the extension of time. The application for an extension of time is therefore dismissed.

(emphasis in original)

In this Court

29    The substantive argument in this Court was, as might be anticipated as the applicant appeared in person, confined essentially to a request that his position be reviewed with more sympathy. The actual grounds of appeal advanced were that the decision of the Federal Circuit Court was made without jurisdiction or was affected by an error of jurisdiction by affirming the decision of the Tribunal. The particulars of that were that the Tribunal incorrectly applied the relevant principles regarding the internal relocation principle as relevant to the refugee criterion in s 36(2)(a) of the Migration Act and, secondly, that the Tribunal did not apply the country information properly in relation to the applicant facing a real chance of harm.

CONSIDERATION

30    The decision under review in the substantive application is the decision of the Federal Circuit Court, not the decision of the Tribunal. No appeal lies to this Court from the decision of the Federal Circuit Court to refuse an application to extend the time in which to commence a judicial review proceeding to challenge a decision of the Tribunal by virtue of s 476A(3) and s 477(2) of the Migration Act.

31    It is established, however, that the Court has jurisdiction to hear an application under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Federal Circuit Court: SZTSU v Federal Circuit Court of Australia [2015] FCA 224, affirmed on appeal in SZTSU v Federal Circuit Court of Australia [2015] FCAFC 129. However, the power of the Court is confined to examining whether the decision of the Federal Circuit Court is affected by an error of the kind in relation to which relief under s 39B of the Judiciary Act would be available, that is, examining whether or not the decision of the Federal Circuit Court is attended by jurisdictional error: see for example SZTSU v Federal Circuit Court of Australia [2015] FCA 224 (at [11]-[12]) referring to Craig v South Australia (1995) 184 CLR 163. Further, in such a case the correct first respondent would be the Federal Circuit Court itself.

32    In Craig, the High Court specified the circumstances in which an inferior court will exceed its jurisdiction (as opposed to an administrative tribunal), distinguishing between appellate errors on the one hand, and jurisdictional errors on the other. The Federal Circuit Court is established as an inferior court pursuant to the Federal Circuit Court of Australia Act 1999 (Cth). In Craig, the High Court said (at 179-180):

… the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

Accordingly, the status of the Federal Circuit Court as a court is significant in determining the jurisdiction of the Federal Circuit Court and, therefore, what sort of error by that court could amount to a ‘jurisdictional error’. The jurisdiction of a court includes the authority to conclusively and finally determine questions of law as well as questions of fact.

33    In my respectful view, her Honour well appreciated the task she was required to undertake in considering the application for an extension of time. It required by statute, the Federal Circuit Court to determine whether it was in the interests of the administration of justice to exercise the discretion to extend time, having regard to the prospects of success of the application, the delay in commencing the application and any explanation for the delay. The Federal Circuit Court concluded that little weight should be given to the delay in commencing the application, but also that the application did not enjoy reasonable prospects of success. The primary judge concluded that it would not be in the interests of the administration of justice to extend time and, accordingly, dismissed the application. Although this conclusion involved the determination of questions of law as well as questions of fact, there is no basis on which it could be said that the decision of the Federal Circuit Court is affected by jurisdictional error. This would appear to be so even if the Federal Circuit Court had failed to notice any jurisdictional error affecting the decision of the Tribunal that had not been raised by the applicant: SZTSU v Federal Circuit Court of Australia [2015] FCA 224 (at [16]-[21]). But, in any event, in my opinion, the primary judge was correct to conclude that the decision of the Tribunal was not affected by any jurisdictional error.

34    It is true that the Tribunal did not expressly identify the ‘Convention reason’ for which it accepted that the applicant faced a real chance of serious harm in the home region before it then turned to consider relocation. The Tribunal was not satisfied however, as discussed in my summary above, that:

    the girlfriend’s family had the connections with (variously) authorities, the police, law enforcement, the local mafia or Muslim extremists as claimed;

    the girlfriend’s family could seek him out in any part of India, other than in his home region;

    the girlfriend’s family had any interest in the applicant if he was not residing in his home region;

    the girlfriend’s family would be able to find the applicant in a country as vast and populous as India if the applicant relocated to another part of India; or

    the girlfriend might commit suicide or would seek out the applicant or that he would seek her out, leading the family to learn of the applicant’s whereabouts.

Moreover, in relation to reasonableness, the Tribunal found that:

    if the applicant wished to remain in contact with her, they could continue arrangements which they adopted while he was in Australia; and

    if he wished to see his family, they could adopt the practice adopted whilst the applicant was in Australia.

35    There was a detailed explanation as to the basis upon which the Tribunal expressed its conclusion that it was satisfied as to safe relocation. This included the fact that the applicant had raised no specific objections to relocation. Being a person who spoke three of the major languages spoken in India, a member of the majority religious group, a person who had earned two diplomas in Australia, had proven work experience and demonstrated resourcefulness while living in Australia away from his family, the Tribunal was satisfied that he could reasonably relocate to another part of India.

36    The only ground of review before the primary judge was that the application for a protection visa was fully justified as the applicant had serious concerns for fear of his life following his plans to marry a Muslim inter-caste girl with whom he had an affair. Although her Honour did not expressly respond to this ground in these terms, understandably, the terms clearly pressed the primary judge to engage in impermissible merits review. No error could arise from failing to do so.

37    As noted above, the primary judge set out authority which makes it clear that is not necessary for a tribunal to make a finding as to the ‘Convention reason’ for which it accepts an applicant faces a real chance of serious harm if it also makes a finding that internal relocation is available (that is, relocation is safe and reasonable). As long as the Tribunal adequately addresses the elements of the internal relocation principle referred to in the Syan line of authority, it has discharged its duties.

38    There are two decisions of this Court which are to the contrary: SZQMR v Minister for Immigration and Citizenship [2012] FCA 122 and SZSLG v Minister for Immigration and Border Protection [2013] FCA 1185. In those decisions it was held that it was necessary for a tribunal to make findings as to the Convention reason in these circumstances. However, the primary judge concluded that it was unnecessary to resolve any tension between the Syan line of authority and those decisions because in this case, on a fair reading of the Tribunal’s reasons, it was clear that the Tribunal understood that the Convention reason for which the applicant faced a real risk of serious harm in his home region was his religion. Notwithstanding this, her Honour expressed a preference for the Syan line of authority as distinct from the other cases. In my view, her Honour was correct on both counts. It is clear that religious persecution was the Convention based reason. In those circumstances, both the Tribunal and the primary judge were correct. Secondly, I would with respect, favour the Syan line of authority for the same line of reasoning I expressed in SZUDE v Minister for Immigration and Border Protection (2015) 235 FCR 65, apparently accepted in Minister for Immigration and Border Protection v SZUSU (2016) 237 FCR 305 (at [3]).

39    In this case, the Federal Circuit Court directed its attention to the very issue which the applicant agitates in this proceeding, namely, whether the decision of the Tribunal in relation to the internal relocation principle is affected by jurisdictional error. The Federal Circuit Court asked itself the correct questions by reference to the reasons of the Tribunal and identified the competing lines of authority. Regardless of its conclusion, the Federal Circuit Court is entrusted with authority to identify, formulate and determine these questions. No jurisdictional error can arise, even if the applicant could demonstrate a mistake by the Federal Circuit Court in that regard. However, it is clear, in my view, that was not even an error within jurisdiction.

40    In short, the Federal Circuit Court was correct to conclude that:

(a)    it can be inferred that the Tribunal found that the applicant faced a real chance of serious harm in his home region in India by reason of his religion, even though this finding was not expressly stated in the statement of reasons; and

(b)    in any event, even if the inference were not available, the decision of the Tribunal is not affected by jurisdictional error because the Tribunal is not required to make express findings about the ‘Convention reason’ for which an applicant faces a real chance of serious harm in order to make lawful findings as to whether an applicant could, in any event, relocate to an area where there was no basis for a well-founded fear of serious or significant harm.

41    Lest there be any doubt of the basis on which the Tribunal concluded the Convention reason was religion, this can be safely inferred from the following:

(a)    the decision of the delegate included express findings to this effect, which material was before the Tribunal;

(b)    the Tribunal set out the correct test in relation to the need to connect the applicant’s claims with a reason set out in the Refugees Convention; and

(c)    the Tribunal was well aware that the applicant is Hindu, that his girlfriend’s family are Muslim and that the nature of the dispute arose from the fact that the applicant was not a Muslim.

42    Furthermore, an inference that a tribunal has overlooked some matters are not too readily to be drawn where the reasons are otherwise comprehensive (as they certainly are here) and the Tribunal has identified the issue at some point: WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593.

43    In my view, it is not necessary that a tribunal in each case make express findings as to the Convention reason for which it accepts that an applicant faces a real chance of serious harm in order to make lawful findings as to internal relocation. This is because:

(a)    the internal relocation principle is a qualification on the existence of protection obligations under the Refugees Convention. A person is not regarded as having a well-founded fear of persecution in their country of nationality if that person could avoid or eliminate the risk of persecution by moving to another part of that country. In order for this qualification to be engaged, the decision-maker must reach a state of ‘satisfaction’ that there is a place, a ‘safe haven’ within the referral country where an applicant does not face a real chance of being persecuted for a Refugee Convention based reason and that relocation to that safe haven is reasonable, in the sense of practicable;

(b)    there may be various ways in which a tribunal might approach its relocation task. One (only) approach is for the tribunal to accept that an applicant faces persecution in one region of his or her own home country and then to consider whether that applicant faces a real chance of any sort of harm in any other part of that country; and

(c)    if the tribunal finds that an applicant does not face a real chance of any harm for any reason in a specific part of the country, or finds that the applicant does not face a real chance of any harm for any reason in any part of the country other than their home region (that is, the only place in which the applicant faces a real chance of any harm for any reason is in the home region), the ‘Convention reason’ for finding the persecution in the home region is immaterial to the relocation findings and a failure to expressly state that reason is not a jurisdictional error.

44    The Tribunal’s analysis was comprehensive and conscientious. It was not affected by any error.

DISCRETIONARY CONSIDERATIONS

45    If all of that were wrong, it would be noted that the applicant commenced the initial proceeding (for which he did not appear) on 23 September 2015, nearly 13 months after the decision of the Federal Circuit Court on 29 August 2014. I am informed by counsel for the Minister that he was seeking ministerial intervention in the meantime.

46    Assuming for present circumstances that there is no time limit within which to commence proceedings under s 39B of the Judiciary Act, nonetheless it is well recognised that discretionary considerations to refuse relief may be engaged where a person does not diligently pursue achieving that relief. Were the applicant entitled to relief, which I am firmly satisfied he is not, I would refuse that relief in the exercise of discretion because the applicant elected not to pursue judicial review proceedings under s 39B of the Judiciary Act, but instead, elected to seek ministerial intervention under s 417 of the Migration Act. He is most certainly entitled to take the latter course. However, the Court has consistently recognised that pursuit of ministerial intervention is not an adequate explanation for delay in commencing migration litigation where time limits do apply, and pari passu relief should be refused where an applicant elects to pursue that avenue in preference to judicial review under s 39B of the Judiciary Act.

47    Moreover, for the reasons set out above, the applicant’s case did not (and does not) enjoy reasonable prospects of success. The applicant faced insurmountable obstacles in establishing that the decision of the Federal Circuit Court was affected by jurisdictional error in a way which entitled him to relief. Accordingly, even if I were persuaded that the applicant has advanced adequate reasons for exercising the power under r 39.05 of the Rules, such an order would serve no useful purpose, and, consequently, should not be made.

CONCLUSION

48    The interlocutory application to set aside the orders dismissing the proceeding by reason of the applicant’s non-attendance at the time and date fixed for the hearing of the appeal will be refused with costs.

Associate:

Dated:    29 July 2016