BIM16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2022-04-29|Before: Anastassiou J

The appeal is dismissed.
The Appellants pay the First Respondent's costs of and incidental to the appeal, to be assessed failing agreement. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANASTASSIOU J: 1 This is an appeal from a decision of the Federal Circuit Court of Australia (FCCA) (now the Federal Circuit and Family Court of Australia): BIM16 v Minster for Immigration and Border Protection [2020] FCCA 3066. The primary judge dismissed an application for judicial review of a decision of the Second Respondent, the Administrative Appeals Tribunal. The Tribunal had earlier affirmed a decision of a delegate of the First Respondent, then the Minister for Immigration and Border Protection (now the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs), to refuse to grant the Appellants a Protection visa under s 65 of the Migration Act 1958 (Cth). 2 For the reasons that follow, the appeal is dismissed.

Tribunal's Decision 7 In its Reasons, the Tribunal accepted at [25] that the First and Second Appellants married against the wishes of their community, and on that basis, accepted that the Appellants had "a real chance of suffering serious harm" in their home region as members of a particular social group, which the Tribunal defined as "breaching customary norms". 8 The Tribunal then went on to consider whether the Appellants could safely relocate within India, away from their home villages in the Punjab. At [30], the Tribunal found that "based on the country information considered, and given both sets of parents approved the marriage, I am not satisfied there is more than a remote chance that any attempt would be made to even trace the [Appellants], if they relocated within India". Further, the Tribunal noted that it was not satisfied that they would be harmed if they were relocated within India and it was satisfied that the Appellants could safely relocate within India, outside of the Punjab. 9 In assessing the reasonableness of relocation, the Tribunal had regard to the fact that the First Appellant "expressly agreed" at the hearing that nothing other than his fear of harm would prevent the Appellants from relocating within India. 10 It is convenient at this point to extract the relevant pages of the Tribunal transcript where the Tribunal member raised the issue of reasonableness of relocation as they are relevant to this appeal: [TRIBUNAL MEMBER]: You've provided information that persons are killed by their family or the community because of having a love marriage, and you've provided media articles to that effect. But I may think that you could safely and reasonably relocate outside of the Punjab in India, and you would not have a real chance of persecution or a real risk of significant harm. Why don't you relocate away from your home village? INTERPRETER ([FIRST APPELLANT]): But in India, people, they can reach you via political connections. So they can contact you by any means, and they can harm you anyway. [TRIBUNAL MEMBER]: The country information that I have seen indicates that it may be difficult for people to trace family members in India. Possibly more importantly I may not think there would be any motivation to trace you or your wife should you relocate within India. So why would you think anyone would be motivated to trace you should you return to India? INTERPRETER ([FIRST APPELLANT]): The community, they still want to harm us because they think that if we do harm them, then no-one else will try to do love marriage again. [TRIBUNAL MEMBER]: That's not quite true, is it though, because even based on information you have provided me, love marriages occur from time to time in the Punjab, and even if I accept that you may be harmed should you return to your home villages, I still have to consider whether I think there would be any motivation to trace you should you safely relocate to a place in India where it is reasonable for you to reside. The only thing you said in reply is your community people will wish to make an - words to the effect, wish to make an example of you and to stop other persons from entering a love marriage. Why would they do that if you relocated? INTERPRETER ([FIRST APPELLANT]): Member, I have provided some cuttings as evidence of that. Even though the people, they have got police protection, still the community still is able to harm them. [TRIBUNAL MEMBER]: Tell me about what you think these media articles say? INTERPRETER ([FIRST APPELLANT]): I have sent numerous cuttings and media reports, and one of them explains like even though the couple had police protection, still they were shot by the community. [TRIBUNAL MEMBER]: Okay. But where would those people live? Where do you believe those people were living? INTERPRETER ([FIRST APPELLANT]): Who? [TRIBUNAL MEMBER]: You just told me - I'm sorry, I did not understand your question. Let's go back and we'll say that you think that somebody in the Punjab was killed - a couple in the Punjab were killed, notwithstanding they had police protection. Is that correct? Please answer yes or no. INTERPRETER ([FIRST APPELLANT]): Yes. [TRIBUNAL MEMBER]: So if you moved away from the Punjab, what would happen then? INTERPRETER ([FIRST APPELLANT]): Because with the help of police, they can reach anyone anywhere. [TRIBUNAL MEMBER]: I understand what you have said. INTERPRETER ([SECOND APPELLANT]): I would like to say something. [TRIBUNAL MEMBER]: Please. Please. INTERPRETER ([SECOND APPELLANT]): As you are suggesting that we can relocate, we can go somewhere out of the Punjab and stay there, but we have already provided media reports and some videos, and those videos and media reports clearly show the names of the people, the cities, and those incidents are two incidents. [TRIBUNAL MEMBER]: I'm not sure I understand why you've mentioned that, [Second Appellant]. I accept that honour killing does occur in India, but I think the dangers - I may think that the dangers of being subject to harm would more likely arise if the person was living in and around their home areas. I may think that persons who engage in a love marriage against the wishes of the community may not be harmed if they moved away from their home area, which in your case would be your villages in the Punjab. INTERPRETER ([SECOND APPELLANT]): Member, I just said that because you raised that question that we can go somewhere far from our village and can live there. So that's why I was trying to explain you that even other things, that they can happen anywhere out of Punjab, like not only in Punjab, they can happen anywhere in India, and in our community we have many people who are employee of police. [TRIBUNAL MEMBER]: I'm sorry, I didn't actually understand that last bit, "In our community we have many people who are" what? INTERPRETER ([SECOND APPELLANT]): I was saying that when I was in India, I knew any family members, like many members of my family, they were employed in police, like some of them are SSP. [TRIBUNAL MEMBER]: I don't know what that means? SSP, what does that stand for? INTERPRETER: Senior superintendent of police. [TRIBUNAL MEMBER]: Are you saying that they held senior ranks in the police force, [Second Appellant]? INTERPRETER ([SECOND APPELLANT]): Yes. They are in senior posts, and other thing I'm concerned about is about our children's safety. Before it was for me and my understand now, but we have our children with us now. So I can't risk my children's lives. [TRIBUNAL MEMBER]: I understand what you have said, [Second Appellant]. I do note that your parents approved your marriage. I also note that notwithstanding you married against the approval of the community, you returned to your home villages in late 2009. INTERPRETER ([SECOND APPELLANT]): Yes. At that time we went to see our parents. We went to visit then, but the circumstances changed drastically at that time, and we went out for shopping and someone saw us together, and after that, the circumstances became so bad that we had to come back immediately just in one day. [TRIBUNAL MEMBER]: I understand what you have said, [Second Appellant]. Do you contact your parents in India? Just yes or no, [Second Appellant]. Just yes or no, please. INTERPRETER ([SECOND APPELLANT]): Yes. [TRIBUNAL MEMBER]: Tell me just approximately how many times per month would you contact them. [Second Appellant], please if l could ask you to keep your responses short. My question to you was just approximately how often do you contact your parents per month? Is it once or twice, [Second Appellant]? INTERPRETER ([SECOND APPELLANT]): Once every two months. [TRIBUNAL MEMBER]: Okay. That's fine. What do you talk about? What are the significant things that you have spoken about since you have been in Australia in the last couple of years? INTERPRETER ([SECOND APPELLANT]): Nothing significant, just ask about their health and wellbeing. [TRIBUNAL MEMBER]: Health and wellbeing. Okay. I understand. [Second Appellant], my apologies for having interrupted you earlier. Was there something you wished to explain. INTERPRETER ([SECOND APPELLANT]): All I wanted to say that I haven't seen my parents for last eight years. [TRIBUNAL MEMBER]: I understand what you have said. INTERPRETER ([SECOND APPELLANT]): And I don't want this thing to happen to my children. I don't want me and my children in the same position. [TRIBUNAL MEMBER]: I understand what you have said. Why can't you reasonably - if it wasn't for this danger, is there any other reason you could not reasonably relocate within India? INTERPRETER ([SECOND APPELLANT]): If my parents had accepted our marriage at that time, then we wouldn't have to come to Australia, and my son is four years old now, but my parents, they haven't seen my son. [TRIBUNAL MEMBER]: Okay. I'm not quite sure I understand what you have said, [Second Appellant], so I will ask the question again. [First Appellant], is there any reason other than the danger that you claim to fear that would make it unreasonable for you to relocate within India? INTERPRETER ([FIRST APPELLANT]): No, there is no other reason. [TRIBUNAL MEMBER]: Okay. I understand what you have said. Did you get a degree in India, [First Appellant], or did you get a diploma? INTERPRETER ([FIRST APPELLANT]): After finishing my year 12, I have done four or five different diplomas. [TRIBUNAL MEMBER]: Okay. Is that in baking and cake and pastry? INTERPRETER ([FIRST APPELLANT]): No, the baking diploma is which I have done in Australia. In India I have got qualifications in computing things. [TRIBUNAL MEMBER]: I understand that you can speak, read and write English and Punjabi, and you can speak Hindi. Is that correct? INTERPRETER ([FIRST APPELLANT]): Yes. I can't understand it properly, but I can speak it. [TRIBUNAL MEMBER]: Okay. I understand what you have said. Do any of your family have ongoing health problems? INTERPRETER ([FIRST APPELLANT]): You mean my Australian family? [TRIBUNAL MEMBER]: My apologies, yes, your Australian family. INTERPRETER ([FIRST APPELLANT]): Yes. My wife, she is suffering from many physical problems. [TRIBUNAL MEMBER]: No-one is suffering physical problems. Okay. That's what was said? INTERPRETER: "My wife." [TRIBUNAL MEMBER]: Your wife. Can I ask what those physical problems - sorry, firstly only your wife in Australia is suffering any health problems. So the question now is what health problems is your wife suffering? INTERPRETER ([FIRST APPELLANT]): Can she explain? [TRIBUNAL MEMBER]: Yes. Thank you very much. Yes, please. INTERPRETER ([SECOND APPELLANT]): Because of stress, once I lost my eyesight. Then I went to see a doctor; doctor prescribed me some medications. So after taking those medication, I'm all right. I also have a memory problem. I can't remember anything sometimes, and I have pain, a lot of pain, from my waist going down to my legs, and they ask me, "Are you in a lot of stress?" I say, "Yes, I am in stress." [TRIBUNAL MEMBER]: So they do not know what causes the pain in your waist and your legs? INTERPRETER ([SECOND APPELLANT]): I ask them, but they said it's because of stress. They have done some tests, but from the test results, they say that it's because of pure stress, and they gave me some painkillers, and I'm taking those painkillers. [TRIBUNAL MEMBER]: I understand what you have said. I may not think that - given your parents approved your wedding, I may not think that you would be traced in India. Would you both like to comment on that? INTERPRETER ([FIRST APPELLANT]): Of course my parents approved our marriage eventually, but because we forced them to do that, and the reason why I call my parents very less is because they were not happy with us, and I just give them a call sometimes just to see how they are feeling, how they are doing. They said to us that, "Because you brought shame to our family because of your marriage, we are (indistinct) in the community." If that wouldn't be the case, like if I was not in this consensus because of our marriage, then I'd have no issues in India, because my family is very rich in India, but in here, in Australia from last two and a half years I am not working, and because of no work, I have no money, and sometimes the situation is like that, we don't have enough money to buy food because we are getting very limited payment. [TRIBUNAL MEMBER]: I understand what you have said. INTERPRETER ([SECOND APPELLANT]): And other thing is my parents said to us when we came to Australia, is that, "We can't keep you if you will come back. So don't return." [TRIBUNAL MEMBER]: I understand what you have said, [Second Appellant]. Is there anything else you wish to say about that or can I ask you other questions? … [Emphasis added] 11 Further, the Tribunal stated that it believed that the First Appellant would be able to find work in India, noting that: (1) the First Appellant had obtained computer qualifications/training in India and had pastry chef qualifications in Australia; and (2) the First Appellant could speak, read and write both Punjabi and English as well as speak "a bit" of Hindi. 12 At [37], the Tribunal concluded that it was satisfied that the Appellants could "safely and reasonably relocate within India" outside of the Punjab stating: 36. There was no claim that education, health or housing would make it unreasonable for the applicants to relocate within India, and based on the country information considered, I am not satisfied this would make it unreasonable for the applicants to relocate. 13 The Tribunal therefore found that the Appellants did not satisfy the Refugee Convention criterion or the Complementary Protection criterion. The Tribunal did not accept that the Appellants had a well-founded fear of persecution or that there was a "real chance" or "real risk" they would be subject to serious or significant harm in India.

Before the Federal Circuit Court 14 On 5 May 2020, the Appellants filed a further amended judicial review application in the FCCA. The application comprised of four grounds of judicial review: 1. The Tribunal's failure to adjourn the hearing to enable the hearing to proceed in person or by video link was unreasonable. 2. The decision of the Tribunal was affected by jurisdictional error in that the Tribunal failed to invite the applicants to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review within the meaning of s 425 of the Migration Act, or alternatively, failed to provide the opportunity to the applicants to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review consistent with the invitation that was given under s 425. 3. The Tribunal failed to give proper and adequate consideration to whether it was reasonable in the circumstances of the applicants to relocate to another place within India. 4. The Tribunal failed to give proper and adequate consideration to whether it was reasonable in the circumstances of the applicants to relocate in that the Tribunal failed to consider reasons that were given by the applicants and/or reasons arising from the material before the Tribunal that affected the reasonableness of relocation. Particulars a. The Tribunal failed to consider the issue of [the Second Appellant's] health, which was raised in the context of relocation. b. The Tribunal failed to consider whether it would be reasonable for the family to relocate in light of their actual circumstances, including that the applicants were a family with very young children and that the children were likely to be stateless at the time of their return to India. c. The Tribunal failed to consider the applicants' claim that their inability to obtain passports because they had claimed asylum in Australia made it unreasonable for the applicants to relocate within India. 15 The application was dismissed by the primary Judge on 13 November 2020, who found that it had not been demonstrated that the Tribunal had made a jurisdictional error as it "had regard to and considered each of the matters raised by the [Appellants]" in coming to the view that they could reasonably relocate within India outside of the Punjab.

Appeal to this court 16 On 10 December 2020, the Appellants filed a Notice of Appeal in this Court and an affidavit of Catherine Jane Farrell annexing the Tribunal's Reasons dated 4 May 2016 and the FCCA decision delivered on 13 November 2020. The Notice of Appeal included the following three grounds of appeal: 1. The Federal Circuit Court erred in failing to find that the Tribunal's failure to adjourn the hearing to enable the hearing to proceed in person or by video link was unreasonable. 2. The Federal Circuit Court erred in failing to find that the decision of the Tribunal was affected by jurisdictional error, in that the Tribunal failed to invite the appellants to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review within the meaning of s 425 of the Migration Act, or alternatively, failed to provide the provide the opportunity to the appellants to appear to give evidence and present arguments relating to the issues arising in relation to the decision under review consistent with the invitation that was given under s 425. 3. The Federal Circuit Court erred in failing to find that the Tribunal failed to give proper and adequate consideration to whether it was reasonable in the circumstances of the appellants to relocate to another place within India. Particulars a. The Tribunal failed to consider the conditions in the putative place of relocation to determine whether it would be reasonable for the appellants to relocate there. b. The Tribunal failed to consider whether it would be reasonable for the family to relocate in light of their actual circumstances, including that the appellants were a family with very young children. c. The Tribunal failed to consider the issue of the second appellant's health, which was raised in the context of relocation. d. The Tribunal failed to consider the appellants' claim that their inability to obtain passports because they had claimed asylum in Australia made it unreasonable for the applicants to relocate within India. 17 In their written submissions, and at the hearing, the Appellants stated that they were no longer pressing grounds 1 and 2. Accordingly, ground 3 was the sole ground of appeal before the Court. The Appellants and the Minister did press ground 3(d) or make any submissions in relation to it.

Appellants' Submissions 18 The Appellants submitted that the Tribunal failed to give proper and adequate consideration as to whether it was reasonable for them to relocate within India as it did not undertake the two stage analysis it was required to conduct. In summary, that process required that first, it must be determined whether there is a part of the country where the visa applicant would not face a real chance or real risk of harm; and second, if there is such a place, it must be determined whether it would be reasonable for the applicant to relocate to that place, having regard to the "particular circumstances of the applicant" and "the impact upon that person of relocation": SZATV v Minister for Immigration and Citizenship [2007] HCA 40; 233 CLR 18 at [24] (Gummow, Hayne and Crennan JJ). 19 The Appellants submitted that the Tribunal fell into jurisdictional error as it conflated the two stages by failing to give proper consideration to the reasonableness of relocation, separate from the enquiry as to whether the putative safe place was one where the Appellants would not face a real risk of harm. In support of this contention, the Appellants relied on MZANX v Minister for Immigration and Border Protection [2017] FCA 307, in which Mortimer J stated the following in relation to the reasonable relocation test at [50]-[51]: [50] It is also to be assessed by reference to the individual circumstances of the person concerned, and what is practicable and reasonable for that person, taking into account what it is really like to live in the place said to be safe. … [51] In any context, whether refugee law or otherwise, what is "practicable" and "reasonable" for a person to do, or not to do, involves a fact intensive assessment. Generalities will not suffice. There must be a sufficiently detailed array of information about the individual concerned (and any family members) and a sufficiently detailed array of information about the putative safe location. An assessment must then be conducted of what this particular individual is likely to face in that particular location. [Emphasis added] 20 The Appellants also relied on CSO15 v Minister for Immigration and Border Protection [2018] FCAFC 14; 260 FCR 134 at [40] where the Full Court of this Court held that: … under both Art 1A and the complementary protection regime, what is to be examined is the place to which a person will be returned, and what risks a person faces on return to that place. At least one location within a country of nationality must be identified for this task to be undertaken. … As SZSCA illustrates, once a decision-maker has identified a region or place to which it is likely a person will return, an assessment of the risks a person might face on return to that place or region may, in some factual circumstances, require consideration of what is reasonable and practicable in terms of how that person will live and work in that place. … [T]his assessment will invariably be required if the region or place is "new" for the person, and internal relocation (or "internal protection") principles apply. [Emphasis added] 21 The Appellants did not contend that failure to nominate a place of relocation would constitute jurisdictional error in itself. Rather, they argued that the failure to nominate a place with at least some specificity made the necessarily fact intensive assessment about reasonableness of relocation extremely difficult, if not impossible The Appellant contended that the Tribunal did not, and could not, conduct a detailed analysis of the "putative safe location" and the reasonableness of the Appellants moving to that place in circumstances where it did not nominate any supposed "safe haven" beyond ascribing it as a place "within India (away from their home village in Punjab state)". 22 The Appellants submitted that in assessing the reasonableness of relocation, the Tribunal should have considered different types of issues the Appellants may face in relocating, such as those raised by Mortimer J in MZANX at [62], by way of example: … the factual context which arose for the reviewer's consideration was the reasonableness and practicability of the appellant, his wife and, at the time, almost two year old child relocating to Kabul. Issues concerning the availability of health care, the general situation of security, what kinds of housing might be available all fell to be considered by the reviewer in the context of the appellant and his wife having a young child. What might be "reasonable" or "practicable" for a resourceful young man with no family is not the same, at a factual level, as what might be reasonable and practicable for a young man, his wife and young child. To take two obvious examples: the kind of housing or accommodation required would be quite different; the need to have access to health care would be quite different. [Emphasis in original] 23 Even if it was accepted that the Tribunal had engaged with the first stage of the process in identifying that the risk of harm was localised to the area "in and around the area where the alleged 'breach' [love marriage] took place", the Appellants submitted that there is no doubt that the Tribunal did not give proper and adequate consideration to the second stage of the process, which requires the place to be identified more specifically than "within India". The Appellants drew emphasis to the fact that the Tribunal, in assessing the reasonableness of relocation, limited its reasoning to four short paragraphs of its Reasons ([33]-[36]), approaching the task in the negative, and stating that there were no specific objections raised in relation to "education, health or housing" that would make it unreasonable for the Appellants to relocate. 24 The Appellants submitted that in assessing the reasonableness of relocation, the Tribunal was required to take into account all of the material before it, regardless of whether that material was presented in the form of a specific objection to relocation, in order to discharge its statutory duty. The Appellants contended that the Tribunal's task was to "form a state of satisfaction" that the Appellants could reasonably relocate to a particular place. Any objections made to the prospect of relocation were important considerations, but were not an exhaustive set of parameters for assessing reasonableness of relocation: MZANX at [58]. 25 At [36] of the Tribunal's Reasons, the Tribunal stated that there were no specific objections made in relation to education, housing or health but it did not give any active consideration to any of those matters as it was required to. The Appellants submitted that the Tribunal did not complete the "inquisitorial task" it was required to as it merely "tick[ed] off a checklist of matters raised": AHK16 v Minister for Immigration and Border Protection [2018] FCAFC 106; 161 ALD 457 at [29] (Mortimer, Moshinsky and Thawley JJ); MZANX at [58]. 26 As to the Appellants response to the Tribunal's question, "[i]s there any reason other than danger that you claim to fear that would make it unreasonable for you relocate within India?", the Appellants submitted that because the question was put in such broad and vague terms, one could not expect the Appellants, who were unrepresented at the time, to understand that this question was an opportunity to object to relocating within India for reasons other than their fear of harm, which was the focus of the hearing and their primary claim. The Appellants submitted that Tribunal did not ask any specific questions about a potential nominated place or about the Appellants particular circumstances that would have prompted the Appellants to object to relocating for any other reason and therefore the answer that there was "no other reason" did not relieve the Tribunal of its obligation to satisfy itself that they could reasonably relocate within India in an area outside of the Punjab. 27 The Appellants further contended that the Tribunal failed to take into consideration relevant material before it and issues raised by the Appellants that would affect the reasonableness of relocation, namely: (1) the family would be relocating with two very young children; (2) the Third and Fourth Appellants were born in Australia and had never been to India; (3) the Appellants would not have any family support in parts of India away from their home area; and (4) the Second Appellant had health issues that she considered impeded her ability to relocate within India. 28 The Tribunal instead focused on the fact that the First and Second Appellant had lived most of their lives in India and did not make attempt to differentiate between their previous lives in their home area in Punjab and what life would be like in the (unspecified) place of putative relocation with children. 29 These matters were significant to the reasonableness of relocating and were matters that were said, in the Appellants' submission, to be obvious by reference to the material before the Tribunal. For example, the Appellants submitted that the Tribunal accepted that both children had been born in Australia but did not consider how this may impact the reasonableness of relocating: MZANX at [62] and CLI16 v Minister for Immigration and Border Protection [2020] FCA 1769 at [47] (Anastassiou J). Nor did it consider the significance of family support or how the "lack of familial or community networks" would impact relocation, despite the fact that this was squarely raised in the country information before the Tribunal, and recited in its Reasons at [26], particularly in circumstances where any place of relocation would necessarily, by reason of their love marriage which caused them to flee, be one where the Appellants had no family or local connections. 30 In relation to the Second Appellant's health, the Appellants submitted that they were asked during the hearing, in the context of whether it would be reasonable for the family to relocate, whether anyone in the family had health issues. In response, the Second Appellant gave evidence that she had issues in relation to stress, loss of eyesight and pain from her waist to her legs, and that she had been prescribed medication (see extract from the Tribunal Transcript at [10] above). There was no further discussion about how these issues may impact the family's ability to relocate. Rather, the Appellants submitted that the Tribunal asserted at [36] that there was "no claim" in relation to health that would "make it unreasonable for the [Appellants] to relocate within India", making it clear that the Tribunal did not turn its mind to the issue of the Second Appellant's health in assessing reasonableness of relocation. 31 For the reasons above, the Appellants submitted that the Tribunal failed to engage in the proper assessment of the reasonableness of relocation as required by statute. This was material to the decision and thereby caused the Tribunal to fall into jurisdictional error. Accordingly, the Appellants contended that the FCCA erred as it failed to make that finding.

Minister's Submissions 32 In response to the Appellants' contention that the Tribunal failed to give proper consideration to the reasonableness of relocation, the Minister submitted that the Tribunal did not fall into error because it was open to the Tribunal to find that it would be safe and reasonable for the Appellants to relocate anywhere in the country other than the place where they claim to fear harm, being their home village in the Punjab state: CRI026 v Republic of Nauru [2018] HCA 19; 355 AR 216 at [39]-[40] (Kiefel CJ, Gageler and Nettle JJ). 33 The Minister relied on following statements expressed by the High Court in CRI026 at [40] in support of this submission: … In some cases it may be that the reliable information available to the decision maker demonstrates that the risk of harm … exists only in one place or area, or a couple or few places or areas, within the applicants country of nationality, and that elsewhere the country is relevantly risk free. In such cases, it is accurate to say that the burden would be upon the applicant for complementary protection, once sufficiently alerted to the significance of the information available to the decision maker, to present reasons why it would nonetheless be unreasonable to expect the applicant to relocate to any place beyond the affected places or areas. Each case is fact specific and must be dealt with accordingly. [Emphasis added] 34 For the avoidance of doubt, the Minister noted that CRI026 post-dates the decision of CSO15, and therefore takes precedence to the extent of any inconsistency. 35 The Minister submitted that the Tribunal's task in assessing reasonableness of relocation is shaped by "the framework set by the particular objections raised [by an applicant] to relocation": SZMCD v Minister for Immigration and Citizenship [2009] FCAFC 46; 174 FCR 415 at [124] (Tracey and Foster JJ); see also AHK16 at [27] (Mortimer, Moshinsky and Thawley JJ). The task is "dictated by the evidence and claims advanced to it by the appellant": SZMCD at [123] (Tracey and Foster JJ). 36 The Minister accepted that the Tribunal has an "inquisitorial rather than adversarial" role, but that as applied to the Tribunal, "'inquisitorial' does not carry [its] full ordinary meaning", that is having an "official duty … to inquire, examine or investigate": Minister for Immigration and Citizenship v SZIAI [2009] HCA 39; 259 ALR 429 at [18] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). It follows, in the Ministers submission, that the Tribunal was not required to engage in inquisition in the full sense of the term. That proposition, as submitted by the Minister, is further reinforced by ss 5AAA(2) and (4) of the Migration Act which states that it is the responsibility of the applicant, not the Minister (or the Tribunal standing in the Minister's shoes) to specify the particulars of a claim. 37 I pause to note that during the hearing, I asked that the Minister file a short note on s 5AAA of the Migration Act, and permitted the Appellants to file a note in reply if they wished to do so. The Minister filed his note on 20 August 2021 and the Appellants filed their note in reply on 24 August 2021. 38 The Minister submitted that s 5AAA was inserted into the Migration Act by the Migration Amendment (Protection and Other Measures) Act 2015 (Amendment Act) and applies to visa applications made before the commencement of Part 1 of Schedule 1 to the Amendment Act (14 April 2015), which was not yet "finally determined" as at that date. In this case, the visa application was not "finally determined" as at 14 April 2015, because the delegate's decision was still subject to review by the Tribunal under Part 7 of the Migration Act. Accordingly, s 5AAA applied in this case. 39 The Minister then, at [5.1]-[5.2] of his submissions, identified a number of authorities where s 5AAA has been applied: [5.1] In DVO16 (2019) 271 FCR 342, the Full Court held that a transcript of the interview with the delegate revealed that the applicant had been given opportunities to state "whatever he wished with regard to persecution on the grounds of ethnicity" ([63]). Although the applicant did not understand that he was being specifically asked about persecution on grounds of ethnicity, the Full Court applied section 5AAA in holding that the Authority was not required to do more: ([65]). [5.2] In APX19 [2020] FCA 683 at [60], Collier J cited section 5AAA in connection with the NABE principles, thereby indicating a statutory confirmation or reinforcement of the stringency of those principles. Similarly, in ABT16 [2020] FCA 836 at [26], Perry J held that the observations in NABE about the Tribunal not being required to engage in "constructive or creative activity" in order to identify an applicant's claims were "given added weight" by section 5AAA. [Emphasis added] 40 In response, the Appellants did not dispute the Minister's construction of s 5AAA nor its application to the various cases cited by the Minister. The Appellants submitted that s 5AAA relates to an applicant's claim to have a well-founded fear of persecution for a Convention reason, or to face a real risk of significant harm as a necessary and foreseeable consequence of being removed from Australia. The Appellants submitted that their "claims", which were accepted by the Tribunal, were claims to fear persecution as a consequence of entering into a love marriage, contrary to customary norms. The Appellants submitted that the Tribunal then had a subsequent task, namely to satisfy itself that there was a safe place within India to which the Appellants could relocate and that it would be reasonable in the family's circumstances for them to do so. This task did not involve an assessment of the Appellants' claims. Accordingly, the Appellants contended that s 5AAA of the Migration Act plays no role in relieving the Tribunal of its obligations to satisfy itself that the Appellants could reasonably relocate to a safe place. 41 I now return to the Minister's submissions in relation to reasonableness of relocation. The Minister submitted that it could not be said that the Tribunal fell into error having regard to the facts of this specific case; namely, where the Appellants did not identify any reason, other than the danger they claimed to fear, that it would be unreasonable to relocate within India when expressly asked by the Tribunal. In circumstances where the Appellants were given the opportunity to articulate obstacles to relocation to any particular place in India, the Minister says the question of considering the reasonableness of a particular location did not arise before the Tribunal because the issue itself was, in effect, conceded by the Appellants in stating that there were no additional matters that would render any place outside the place where the harm was feared, unreasonable as a place of relocation. 42 The Minister submitted that it is apt to remember that the Tribunal's decision "must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process": S395 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473 at [1] (Gleeson CJ). The Tribunal is therefore not required to conceive of "all theoretical possibilities" to relocation that have not been raised by an applicant in assessing reasonableness nor is it required to give minute examination of every circumstance of the proposed relocation: SZMCD at [123] (Tracey and Foster JJ); BDA17 v Minister for Immigration, Citizenship and Multicultural Affairs [2020] FCA 131; 170 ALD 58 at [15] (Jackson J). 43 The Tribunal has a "statutory duty by reason of its review obligation to consider a visa applicant's claims and their component integers which are expressly stated or squarely arise on the face of the material before it": ELX17 v Minister for Immigration and Border Protection [2018] FCA 1372 at [21] (Perry J), summarising well known authorities such as NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1. The question is rather whether the Tribunal "actively engaged with the relevant issue and acted on sufficiently probative material to reach the required state of satisfaction on the overall question of reasonableness and practicability": EHV18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 649 at [48] (Beach J). 44 Having regard to the above principles, the Minister submitted that the Tribunal did take into consideration all it was required to and did not therefore fall into jurisdictional error. The Minister first addressed the issue of whether the Tribunal failed to take into consideration the fact that the Appellants were now a family unit that would be relocating with young children when assessing the reasonableness of relocation. The Minister submitted that while the Tribunal was "clearly aware of this obvious fact", it was not obvious that this bore on the reasonableness of the Appellants living in India, outside of the Punjab, particularly in circumstances where the Appellants made no claim to that effect. The Minister submitted that the Appellants did not indicate that having young children would materially impact their ability to relocate, even though they were aware that relocation was a possibility, as the delegate had earlier found that the husband could reasonably relocate. 45 Further, and in relation to the Appellants' lack of familial support or community networks, the Minister submitted that the Department of Foreign Affairs and Trade report (DFAT Report) cited in the Tribunal's Reasons, which stated that "lack of familial or community networks" (at [26] of the Tribunal Reasons) was a factor to consider in assessing reasonableness of relocation, did not state that absence of family support would always bear on the viability of an individual or family group living in India. Rather, that report concluded that "millions of Indians successfully relocate within India either temporarily or permanently every year" and that '[i]n general … there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence". 46 The Minister also contended that it was "scarcely obvious" that there was any issue of concern in relation to support from the Appellants' families. First, the Tribunal found that the husband had various qualifications and skills and that he could find work in India; and second, the First and Second Appellant both stated that they did not often speak to their families in India, specifically the First Appellant only spoke to his family about three or four times a year and the Second Appellant spoke to her family once every two months. 47 As to the Second Appellant's health, the Minister submitted that the primary Judge was correct in finding that neither the First nor Second Appellant had expressly raised concerns about the Second Appellant's health as bearing on their ability to restart their lives in India, but outside of the Punjab. The Minister accepted that the Tribunal was aware of the Second Appellant's heath issues, as it made express reference to it at [9] of its Reasons. However, in circumstances where the Second Appellant had stated that she was now "alright" having been prescribed medications and her medical issues were not presented as bearing on the reasonableness of relocation, it could not be accepted that the Tribunal erred in failing to address this matter in any further issue than it did. 48 The Minister submitted that the Tribunal therefore did not fall into jurisdictional error by failing to consider a matter relevant to the assessment of the reasonableness of relocating.

Consideration 49 The principles relevant to the assessment of reasonableness of relocation were summarised by Perry J in ELX17 at [18]-[21]. I respectfully and gratefully adopt that summary below: [18] … question of whether it is reasonable for a person to relocate for the purposes of s 36(2B) arises only in the context of the IAA's assessment of whether the complementary protection criterion in s 36(2)(aa) is met: contrast subs 5J(1)(c) defining a "well-founded fear of persecution" for the purposes of the Refugees Convention criterion in s 36(2)(a). The relevant principles for determining the reasonableness of relocating were not in issue between the parties and may be summarised as follows. [19] First, in determining whether it is reasonable for a person to relocate to another area for the purposes of s 36(2B) of the Act, the decision maker must not confine itself to whether the person faces a real risk of significant harm. It must also consider the practical realities for, or impact on, the visa applicant of relocation from her or his place of residence to an area of the receiving country where she or he would not face a risk of significant harm: see eg SZSSY Minister for Immigration and Border Protection [2014] FCA 1144 at [26]-[28] (Jagot J); NAIZ v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 37 at [22] (Branson J (North J agreeing at [73])); SZATV v Minister for Immigration & Citizenship [2007] HCA 40; (2007) 233 CLR 18 (SZATV) at [24] (Gummow, Hayne and Crennan JJ). While I note that these authorities considered the principles applicable to relocation in the context of the Refugees Convention criterion under the Act as it then stood, it seems uncontroversial that the same principles apply equally to a consideration of relocation under the complementary protection framework: AHK16 v Minister for Immigration & Border Protection [2018] FCAFC 106 at [53] (the Court); see by analogy CRI026 v Republic of Nauru [2018] HCA 19; (2018) 92 ALR 529 at [49] (the Court). In this regard, the rationale underpinning the relocation principle in the context of the Refugees Convention was explained by Professor Hathaway in The Law of Refugee Status (Toronto: Butterworth, 1991) at 134, (in a passage approved by Black CJ in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 (Randhawa) at 442): The logic of the internal protection principle must, however, be recognised to flow from the absence of a need for asylum abroad. It should be restricted in its application for persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognised. (Emphasis in the original) [20] The same logic is equally applicable to those seeking to engage Australia's complementary protection obligations. [21] Secondly, the scope of the enquiry which the IAA must undertake into the practical realities of relocation is not free-ranging but will be determined by reference to the issues raised by an applicant with respect to the question of relocation and on the material before it: SZMCD v Minister for Immigration & Citizenship [2009] FCAFC 46; (2009) 174 FCR 415 at [124] (Tracey and Foster JJ) (citing with approval Randhawa at 442-443 (Black CJ)); MZACX v Minister for Immigration & Border Protection [2016] FCA 1212 at [34] (Kenny J). In other words, the IAA has a statutory duty by reason of its review obligation to consider a visa applicant's claims and their component integers which are expressly stated or squarely arise on the face of the material before it: NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [58] and [61] (the Court). Such claims will not, as the Court explained in NABE, depend for their exposure on "constructive or creative activity" by the IAA: NABE at [58]. 50 During the course of the hearing, the ground of appeal was effectively bifurcated into two issues, the first issue being the Tribunal's failure to identify a place of relocation, and the second, the extent to which the Tribunal's task was bounded by the reasons the Appellants advanced as to why they could not relocate elsewhere in India.

Place of relocation 51 As to the first of those two issues, while I accept that the Tribunal failed to nominate any "putative safe place" with any specificity, I am not satisfied that the Tribunal was required to nominate a place in any more specificity than it did. While a "broad brush" approach will not satisfy the requirements of the task to be performed by the Tribunal, "whether it is reasonable for a visa applicant to relocate to a particular location(s) depends in part on the framework set by the claims of the applicant as to why it is not practical or reasonable for [them] to relocate to that location(s)": EHV18 at [41] and [43] (Beach J). 52 As Mortimer J said in MZANX at [58], the task is to "form a state of satisfaction on the basis of all the material before her or him, including what might reasonably be known because of the decision-maker's experience and expertise, and the material regularly provided to decision-makers for the purposes of making decisions about Australia's protection obligations". While it is a task "not necessarily confined to those matters", in my view, it would be unreasonable to ask the Tribunal to conduct a "free ranging" investigation into alternative places for the Appellants to reasonably relocate. That inquisitorial process is not one that the Tribunal is required to undertake. I agree with the Minister that there is no manageable standard if the Tribunal were required to nominate a particular geographic area. 53 In CRI026 at [40], the High Court said the level of precision with which a Tribunal will need to nominate a safe place for relocating will depend on the specific facts of the case before it. On the facts of this case, when asked by the Tribunal why they could not relocate away from their home village, the Appellants explained that they could be harmed no matter where they travelled because honour killings for love marriages happened in many places within India and not just the Punjab region. The Appellants also explained that members of the Second Appellant's family held senior positions in the police force around her home area in the Punjab and so the Appellants could easily be found or reached wherever they were located in India. 54 Having regard to country information, and the fact that the both sets of parents approved of the Appellants marriage, the Tribunal at [30] rejected this contention as it was not satisfied that there would be "more than a remote chance that any attempt would be made to even trace the applicants, if they relocated within India". Further, and in relation to the Appellants' contention that the local community would attempt to "make an example" of them and would trace them wherever they went in India, the Tribunal held at [30] that evidence before the Tribunal indicated that "such killings were commonly undertaken in and around the area where the alleged 'breach' took place" and that people who were traced in India "appeared to have substantially greater profiles than I am satisfied either [Appellant] held". 55 When asked again whether there was any reason other than the danger claimed to fear that would make it unreasonable for the Appellants to relocate within India, the response was "no, there is no other reason". There were no other bases upon which it was advanced by the Appellants that they were unable to relocate elsewhere. Rather, the Appellants gave an affirmative response that the only reason they could not relocate within India, outside the Punjab, was due to their fear of harm, a contention that was rejected by the Tribunal. 56 It may, on the circumstances of a particular case where there is information, or a credible claim as to why it may not be possible to relocate to certain parts of a country, be necessary for the Tribunal to explore those claims further and assess the reasonableness of each of those places by reference to those claims or that information: CSO15 at [40]. However, given the framing of the Appellants' application before the Tribunal, this was not one such circumstance. Accordingly, in my view, it was unnecessary for the Tribunal to identify a specific location because there was nothing put to the Tribunal, apart from the generalised fear of harm across the country which the Tribunal rejected, that would militate against the reasonableness of relocation for anywhere outside the geographic area of their home village. 57 I note the Appellants' submission that in the circumstances of the present case; namely, that as the Appellants were unrepresented and appeared before the Tribunal by telephone with an interpreter, the question the Tribunal asked might not have sufficiently identified for the Appellants the information the Tribunal was seeking to obtain from them. Put another way, in the circumstances, the Appellants might not have understood that the Tribunal was asking whether there were any objective factors or "objections", other than their fear of harm, which would prevent them from relocating to any other place outside of the Punjab. However, I am not satisfied by that submission for two reasons: first, the Appellants were on notice that relocation was a potential outcome, having being raised and considered in the delegate's decision; and second, the Tribunal member, having received the response that there was no other reason why the Appellants could not relocate, made further inquiries as to work experience, education levels and the family's health in an attempt to ascertain any objective factors that would prevent the Appellants from reasonably relocating anywhere in India outside the Punjab. 58 In those circumstances, and having regard to the authorities referred to above, I am not satisfied that the Tribunal fell into jurisdictional error by not nominating a place with any more precision than it did, namely that the Appellants could relocate anywhere within India outside of the Punjab. It was not the Tribunal's task to inquire as to every alternate location in India to determine whether or not it would be reasonable for the Appellants to relocate to that place.

Objections to relocation 59 As to the second issue, I am also not satisfied that the Tribunal failed to discharge its statutory duty by failing to take into consideration material and issues that were relevant to the application before it. As Perry J noted in ELX17 at [21], "the scope of the enquiry which the IAA must undertake into the practical realities of relocation is not free-ranging but will be determined by reference to the issues raised by an applicant with respect to the question of relocation and on the material before it". This is also clear from s 5AAA(2) and (4) of the Migration Act which relevantly states: Non-citizen's responsibility in relation to protection claims (1) This section applies in relation to a non-citizen who claims to be a person in respect of whom Australia has protection obligations (however arising). (2) For the purposes of the Act, it is the responsibility of the non-citizen to specify all particulars of his or her claim to be such a person and to provide sufficient evidence to establish the claim. … (4) To remove doubt, the Minister does not have any responsibility or obligation to: (a) specify, or assist in specifying, any particulars of the non-citizen's claim; or (b) establish, or assist in establishing, the claim. 60 I accept the Minister's contention that this provision applies in the circumstances of this case. While the Appellants submitted that their "claims" were founded upon a fear of persecution as a consequence of entering into a love marriage and therefore s 5AAA could not relieve the Tribunal of its statutory duty to consider the reasonableness of relocating, in my view, "claims" includes all the particulars provided in support of that claim, including barriers to relocating that would assist the Tribunal in forming its assessment as to reasonableness of relocation. 61 I am not satisfied that the Appellants adequately expressed their concerns about relocating with their children, both of whom were born in Australia and had never been to India, lack of familial support on return to India, or their concerns about the Second Appellant's health. In any event, the Tribunal member gave the Appellants a number of opportunities to articulate any obstacles to relocating to any particular place in India or raise any additional concerns. The Appellants specifically raised a number of concerns about their fear of harm if found by their community but they did not expressly raise issues in relation to lack of familial support, relocating with two young children or the Second Appellant's health. 62 The primary Judge summarised the Appellants' responses to these queries at [103] as follows: In response to a series of questions about why the applicants could not relocate within India, the applicants raised the following concerns: a) 'in India, people… can reach you via political connections'; b) the community wants to harm the applicants to discourage others from entering into a 'love marriage'; c) there is a risk of honour killings, and as indicated in the 'numerous cuttings and media reports' provided by the applicants, the police are not able to protect couples at risk; d) the applicants could be traced with the help of police; e) the applicants have many family members who are employed by or connected to the police; f) the risk now is not just to the first and second applicants but also to their children. 63 Despite the fact the Appellants claimed that there was nothing other than their fear of harm that would impact their prospects of relocation, the Tribunal went on to make more specific inquiries regarding education levels, works skills and work experience, familial support and health issues to attempt to ascertain any additional barriers to relocating anywhere else within India.

Relocating as a family unit 64 I agree with the Appellants' submission that it was obvious on the material before the Tribunal that the Appellants were a family unit who would be relocating with very young children. That much is clear from the fact that the Tribunal made express reference to it in its Reasons at [7] and [30]. I also agree that moving with children requires additional considerations that would not otherwise be required for a single person relocating. However, I am not satisfied that the Appellants made any claim that moving with two children would bear on the ability for them to relocate within India. Accordingly, I am not of that view that the Tribunal was required to analyse the issue any further than it did in its Reasons. This is despite the Appellants stating that the Tribunal nonetheless engaged with the claim in its Reasons at [35], being that despite the Appellants living in Australia for almost eight years and the Third and Fourth Appellant having been born in Australia, it was not satisfied that the Appellants "lengthy residence in Australia would make it unreasonable for them to relocate within India". In my view, the Tribunal made this finding having regard to the First Appellant's ability to gain employment in India due to his qualifications and his ability to speak, read and write English, Punjabi and speak "a bit" of Hindi.

Lack of familial support or community networks 65 The Tribunal also made note of a DFAT Report, which stated that relocation within India "can" be limited by lack of familial or community networks. It is important first to note that this report stated that language barriers can be among the "most significant obstacles" and that despite the barriers to relocation "there are a range of viable internal relocation options for individuals seeking protection from discrimination or violence": Tribunal Reasons at [26]. Second, during the Tribunal hearing, the Tribunal made inquiries as to whether the First and Second Appellants were still in contact with their parents. The First Appellant said that he speaks to his parents "three or four times a year". The Second Appellant stated that she speaks to her parents once every two months. In my view, it was open to the Tribunal to conclude that the First and Second Appellant were not relying on familial support, either material or immaterial, such that it would be an obstacle to relocate anywhere in India outside of the Punjab. That much is obvious from their lack of communication since arriving in Australia, and to some extent expected, as the reason for the Appellants fleeing their home town was, in part, due to the shame they brought their families because of their love marriage.

Second Appellant's health 66 I am also not satisfied that the Tribunal failed to consider the reasonableness of relocating in the light of information about the Second Appellant's health. I agree with the primary Judge who stated at [106] of her Reasons that neither the First nor Second Appellant expressly raised a concern about the Second Appellant's health condition being a barrier to relocation, such as, for example, there being issues with access to health facilities, medical attention or medication if they were to relocate within India. Rather, the information surrounding the Second Appellant's health was raised in response to a question asked by the Tribunal member during the hearing. 67 The Tribunal was clearly aware of the Second Appellant's health issues: see [9] of the Tribunal's Reasons: During the hearing (18 April 2016), the applicant wife explained that she suffered stress in Australia. She said this was thought to be the cause of pain she experienced in her waste (sic) and legs. She also said that stress had caused her to temporarily lose her eyesight in Australia; though this had been remedied with medication. No further ongoing health issues were claimed. 68 I agree with the Minister that in circumstances where the Second Appellant has stated that she is now "alright" having been prescribed medication and the Appellants have made no claim as to how or why the Second Appellant's health would be an "objection" or obstacle to relocation, the Tribunal did not need to address this issue in any further detail than which it did. Further, I do not agree that the Tribunal's assertion at [36] that there was "no claim that … health … would make it unreasonable for the [Appellants] to relocate within India" was incorrect. The Tribunal had considered the Second Appellant's health condition and, following no objection raised by the Appellants as to why her health condition would be problematic in terms of relocating within India, the Tribunal aptly found that no such claim was made. 69 Accordingly, I am not satisfied that the Tribunal failed to take into consideration these factors as potential "objections" to relocation and therefore, it did not fall into jurisdictional error. Rather, I consider that the Tribunal 'went out of its way' to seek additional information from the Appellants, despite being told that there was no other reason, other than their fear of harm, to ascertain whether there were barriers to relocating anywhere outside of the Punjab, before concluding that it was it was not unreasonable for the Appellants to relocate.

Disposition 70 For the above reasons, the appeal is dismissed. I certify that the preceding seventy (70) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anastassiou.

Associate: Dated: 29 April 2022 SCHEDULE OF PARTIES VID 797 of 2020 Appellants Fourth Appellant: BIP16

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