Montes-Granados v Minister for Immigration & Multicultural Affairs

THE COURT ORDERS THAT: (1) The application be dismissed. (2) There be no order as to costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

REASONS FOR JUDGMENT 1 The applicant, whose claim to be a refugee within the meaning of the well known Convention was rejected by the Refugee Review Tribunal, now seeks the very limited form of judicial review available in this Court under the Migration Act 1958. He arrived in Australia on 11 July 1997, having fled from Colombia where he claims that his life is threatened by a guerrilla group, from which the authorities are unable to give him adequate protection, known as the Ezercito Revolucionono Guevarista (ERG). 2 The Tribunal's decision has some puzzling features. It seems substantially to accept the applicant's account of the origin of his predicament in Colombia. That account was quite straightforward. He said that in January 1997, some days after he had refused to assist the ERG in an attempt to kidnap a political figure, he and his wife were involved in a shooting incident (but none of the shots was actually aimed at either of them), which he claimed was a reprisal by the ERG and was associated with death threats. The reasons of the Tribunal state the conclusion that "there was a threatening incident with a gunman, who did not fire at the applicant, in January 1997." Having regard to the material referred to in the reasons, the Tribunal could hardly have failed to make at least this minimal finding. For it had mentioned a certificate from a Colombian public prosecutor relating to the report of the incident to his office, and an original newspaper cutting containing an account of the incident with a photograph of the applicant. However, the Tribunal seems to have been somewhat extraordinarily disturbed by a series of what might have been thought quite unsurprising discrepancies in relation to the newspaper report, emanating as it did from a "local daily" published in a war-torn and extremely poor country of the third world. Details which could easily be either mistaken or misinterpreted seem to have carried more weight with the Tribunal than the broad fact that the applicant's account, being consistent with the well known situation in Colombia, was also supported by an official report and by a newspaper story quite certainly relating to him since it included his photograph. An approach to fact finding so at variance with that which long experience has taught the Courts and other domestic tribunals is bound to be a matter of concern, particularly as, in refugee cases, no appeal can be brought from the actual conclusions of fact, or even in respect of the most extreme unreasonableness. 3 However, as I have said, the Tribunal did, though grudgingly, accept the substance of what the applicant alleged. It also referred to a "United States Country Report" of 1998 confirming the existence of the ERG as a guerrilla army "much smaller" than the two principal guerrilla armies in Colombia, and confirming that "[t]hese groups [including the ERG] undertook armed actions" within Colombia. In the light of that information, the Tribunal did not point to anything about the substance of the applicant's story which appeared at all incredible. It did point to the fact that he had taken four months to obtain a passport and a further two months before he left Colombia for Australia, and commented: "The Tribunal finds it difficult to reconcile this lack of urgency, which the applicant did not adequately explain when it was put to him, with a fear of serious harm or assassination by the guerrilla group. The Tribunal is satisfied that there is a considerable element of exaggeration in the applicant's claims." Just what was seen as inadequate in the applicant's explanation is not made clear. This may be because, ultimately, the decision did not turn on the point; even if fears are exaggerated, the Tribunal, in accepting that the shooting incident occurred, presumably accepted that some fears must have been justified. Although the assailant "did not fire at the applicant", the only reason mentioned for that was the intervention of other people. 4 Having reached the position I have indicated, the Tribunal disposed of the matter in the following way. It said: "The Tribunal has considerable doubt that the applicant's fear of persecution in Colombia is well-founded. In view of the position taken below, however, the Tribunal does not find it necessary to make a finding whether or not it is well-founded." What the Tribunal then went on to find was that the ERG was "a small guerrilla group" which did not, it inferred, operate in all areas of Colombia. Indeed, there was evidence that in some regions no guerrilla group operated, and, of course, it might be thought that other regions, where some groups operated, would nevertheless be free of the influence of a particular small group, such as the ERG. 5 The Tribunal then referred to evidence "that in many cases people threatened in one area can be safely relocated to another area". It pointed out that Colombia is a large country with a population of over 35 million. There was evidence that people fleeing zones of conflict "usually are able to find peaceful residence elsewhere in the country". At the same time, almost 600,000 Colombians have been forced to abandon their homes to flee violence in the past ten years. The information relied upon to support these conclusions came from a 1997 report issued by the United States Department of State. 6 The applicant claimed that the position was worse than the United States Department of State had suggested, and that "if he had found a place where he would not be persecuted he would have gone there". The Tribunal, however, decided: "The Tribunal notes that the applicant is 40 years old, he had 12 years of schooling and has had a wide experience with four employers over some 17 years, including at manager level. He has a wife and daughter who have continued living in his home town since his departure. Having regard to the independent evidence, the localised nature of the incidents and threats affecting the applicant, the limited capacity of the ERG and the education, skills and experience of the applicant, the Tribunal is satisfied that it is reasonable to expect the applicant to relocate elsewhere in Colombia to an area where he will have effective protection from the ERG. Having regard to the whole of the evidence, the Tribunal finds that the applicant's fear of persecution in Colombia is not well-founded." 7 The questions raised by the application to the Court relate to the manner in which the Tribunal came to the conclusion that the applicant could reasonably be expected to relocate in Colombia, and the manner in which it expressed its reasons. 8 The conclusion that "it is reasonable to expect the applicant to relocate elsewhere in Colombia" reflects the language of Black CJ in Randhawa v Minister for Immigration (1994) 52 FCR 437 at 443. In that case, the Chief Justice said (at 442-443): "In the present case the delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the appellant could relocate to another area of India but whether he could reasonably be expected to do so. This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered. … In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant's Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India." See also Abdalla v Minister for Immigration and Multicultural Affairs (1998) 51 ALD 11 at 18; Regina v Secretary of State for the Home Department, Ex parte Robinson [1998] QB 929 at 939-940, per Lord Woolf MR. 9 Black CJ's statements that the issue was "not to be approached in a narrow way", that it should be seen "as a practical matter", and a reference that he made to R v Immigration Appeal Tribunal; Ex parte Jonah (1985) Imm A R 7, were reflected in the joint judgment of Burchett and Lee JJ in Perampalam v Minister for Immigration and Multicultural Affairs (1999) 84 FCR 274 at 283-285. It was there pointed out that, once a well founded fear of persecution for a Convention reason has been shown, "a refugee does not also have to show a Convention reason behind every difficulty or danger which makes some suggestion of relocation unreasonable". 10 In the present case, counsel for the applicant placed reliance on that part of the passage I have quoted from the judgment of Black CJ in Randhawa where his Honour said "it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the matter more specific attention". Counsel said the Tribunal had failed to identify any particular place within Colombia where the applicant might find refuge for himself and his family. However, I note that Black CJ used the word "ordinarily", and I do not think he intended to specify rules defining an exclusive mode by which it must be ascertained whether an applicant could reasonably be expected to relocate within his own country. Here, there was evidence from which it was open to the Tribunal to infer that indeed there were areas in Colombia free of the menace posed to the applicant by the ERG. It noted that the applicant himself had attributes suggesting he was a person for whom relocation was a practical possibility; he had education and experience likely to enable him to find a livelihood in a new region. His age was no barrier. It was not a case, like Abdalla, where any travel within the country in question inevitably posed considerable dangers. Nor was it a case, like Alphonsus v Minister for Immigration and Multicultural Affairs [1999] FCA 289 where, as appears at paras 38 et seq, the personal circumstances of the applicant and the conditions obtaining in the suggested place of internal asylum raised difficulties that the Tribunal was bound to consider. 11 Counsel for the applicant sought to find some support for his argument by contrasting, as inconsistent, the Tribunal's statement that it "does not find it necessary to make a finding whether or not [the applicant's fear of persecution in Colombia] is well-founded" with the ultimate conclusion: "Having regard to the whole of the evidence, the Tribunal finds that the applicant's fear of persecution in Colombia is not well-founded." However, it seems to me the final conclusion merely reflects the statement of Black CJ in Randhawa at 443: "If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded." Here the Tribunal, having concluded that it was reasonable to expect the applicant to relocate, stated its conclusion in terms of the converse of Black CJ's proposition, that is to say, as a conclusion that the applicant's fear of persecution in relation to the country as a whole was not well-founded. 12 The applicant also relied on s 430(1) of the Migration Act 1958, which provides: "(1) Where the Tribunal makes its decision on a review, the Tribunal must prepare a written statement that: (a) sets out the decision of the Tribunal on the review; and (b) sets out the reasons for the decision; and (c) sets out the findings on any material questions of fact; and (d) refers to the evidence or any other material on which the findings of fact were based." It was argued that the same apparent inconsistency in the reasons of the Tribunal which was relied on to support the earlier arguments rendered the reasons for the decision too obscure to comply with the section. What I have already said about this part of the reasons makes it clear that I do not agree. 13 Finally, counsel asserted there was a failure to comply with s 430(1)(c) in relation to the finding that it is reasonable for the applicant to relocate, because this conclusion was not supported by "findings on … material questions of fact". The defect relied upon was said to have arisen as a consequence of the lack of specificity in the reasons. 14 It seems to me that, in the context of this matter, the argument adds nothing to the argument I have already rejected (in para 10 above) which, if correct, would have established an error of law within the meaning of s 476(1)(e) on the basis of a failure to make findings on material questions of fact upon which findings would have been required by a correct interpretation of the applicable law. As Davies J pointed out in a passage in Eshetu v Minister for Immigration and Multicultural Affairs (1997) 71 FCR 300 at 307 the authority of which, counsel for the Minister accepted, was not affected by the decision on the appeal to the High Court in that case, an error of law in the process by which a particular decision was reached may be ascertained by inference. 15 However, counsel for the Minister submitted that I should not consider the applicant's argument based on s 430, because I should follow the views expressed in the joint judgment of Whitlam and Gyles JJ (from which, however, on this point R D Nicholson J expressly dissociated himself) in Xu v Minister for Immigration and Multicultural Affairs [1999] FCA 1741. There is a difficulty about this approach. As R D Nicholson J pointed out (at para 93), the views in question were "not necessary for the resolution of the appeal", and were contrary to a decision "in which the issue arose directly as the principal issue for argument" in Minister for Immigration and Multicultural Affairs v Yusuf [1999] FCA 1681. Whitlam and Gyles JJ concluded their judgment (at para 66): "We have agreed with R D Nicholson J in finding that the omissions put forward here are not material, however that term is defined. For the purposes of this case, we therefore do not need to resolve all of the issues which arise as to the proper construction and application of s 430(1)(c), and refrain from doing so. To do so requires consideration of authority on this and cognate provisions well beyond that which was argued before us or appears in the reasons in Yusuf (supra). There is also a growing body of literature to be considered." 16 Having regard to the last statement, it seems to me the judgment of Whitlam and Gyles JJ should be read as a discussion of some of the relevant principles, in which some conclusions are expressed by way of obiter dicta, and not as the ratio decidendi of the decision. There is a powerful consideration which supports that view, namely, that their Honours expressly refer to Yusuf, in which (at paras 13 and 14) the joint judgment of Heerey, Merkel and Goldberg JJ cites the decision of the High Court in Nguyen v Nguyen (1990) 169 CLR 245, the decision of the full court of this Court in Qantas Airways Ltd v Cornwall (1999) 84 FCR 483 at 489-490 and Byrne v Australian Airlines Limited (1994) 47 FCR 300 at 304, per Black CJ. These authorities, and particularly the comments of the High Court in Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485 at 492 which are cited in Qantas Airways Limited v Cornwall at 489, and the further authorities cited in the same judgment at 490, suggest that if Whitlam and Gyles JJ had intended actually to overrule Yusuf and the array of authorities on which it depended, they would have needed to have found Yusuf, in particular, to be "plainly wrong", a conclusion they do not approach in their brief mention of it at paragraph 30. Accordingly, it seems to me that until the whole matter is reconsidered by a full court, a single judge must be bound by the direct decision of the full court in Yusuf, and indeed, by the many earlier decisions of full courts to the same effect. A recent statement of the binding character, even for a full court, of an earlier full court decision was made by Lindgren J (in a judgment with which Whitlam J agreed and I expressed general agreement) in Minister for Immigration and Multicultural Affairs v Prathapan (1998) 86 FCR 95 at 104, where his Honour said the earlier decision should be followed "unless we thought it plainly wrong". 17 Although I am bound to accept the legal basis of the argument put by counsel for the applicant pursuant to s 430, for reasons which I have already given, I do not think it avails him anything. In the particular circumstances of this case, the Tribunal did not err in law by approaching the question of relocation within Colombia in the way that it did, or in formulating its reasons on that question as it did. Accordingly, the application must be dismissed. 18 Counsel for the Minister sought an order for costs. In opposing the making of such an order, counsel for the applicant relied on the breadth of my discretion and on the inadequacies of the Tribunal's reasons, to some of which I have already drawn attention. 19 The power to make an order for costs is conferred on this Court by s 43(2) of the Federal Court of Australia Act 1976: "Except as provided by any other Act, the award of costs is in the discretion of the Court or Judge." The authorities, a number of which I discussed in Austen v Ansett Transport Industries (Operations) Pty Ltd (unreported, 26 August 1993), make it clear that a discretion so expressed is extremely wide. The Supreme Court of Victoria held in Verna Trading Pty Ltd v New India Assurance Co Ltd [1991]1 VR 129 that a discretion conferred in similar terms was wide enough to enable the Court, not only to deprive a successful defendant of costs, but even to make an order that the successful defendant pay costs to an unsuccessful plaintiff. In Knight v Clifton [1971] Ch 700 at 716, Sachs LJ had taken the same view. Of course, this could only be justified in an extremely rare case. The Court's discretion, as Viscount Cave LC said in an often cited judgment in Donald Campbell & Co v Pollak [1927] AC 732 at 811-812 "must … be exercised judicially, and the judge ought not to exercise it against the successful party except for some reason connected with the case." See also Tekmat Investments Pty Ltd v Ward (1988) 81 ALR 278. 20 In the present case, as I have already stated, the reasons of the Tribunal give cause for some disquiet. I have previously had to consider a case which involved a quite similar problem - Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 76. I concluded that "in the circumstances the applicant was well entitled to seek the only form of review open to him. The Tribunal should understand that any rational examination of the credit of a story is not to be undertaken by picking it to pieces to uncover little discrepancies. Every lawyer with any practical experience knows that almost any account is likely to involve such discrepancies. The special difficulties of people who have fled their country to a strange country where they seek asylum, often having little understanding of the language, cultural and legal problems they face, should be recognized, and recognized by much more than lip service." I made no order as to costs, although I dismissed the applicant's application. There was an appeal, and the Minister challenged by a cross-appeal my refusal to make a costs order - Sundararaj v Minister for Immigration and Multicultural Affairs [1999] FCA 692. Spender J (with whom Emmett and Hely JJ agreed) said (at para 8): "There is in my view a great deal of force in the adverse criticisms made by his Honour of the Tribunal's reasoning process." He concluded (at paras 14 and 15): "The power to order costs is subject to the well known discretion. Ordinarily, a successful party is entitled to its costs. However, there are many circumstances when a different result can be justified in the discretionary judgment of the judge considering the question of costs. Burchett J in this case said that, in the circumstances of the case, '… the applicant was well entitled to seek the only form of review open to him'. The unsatisfactory nature of the reasons [given] by the Tribunal invited an application for review, even though that review ultimately has proved to be unsuccessful. It seems to me that those circumstances provide a sufficient basis for his Honour to exercise the discretion that he undoubtedly had to make no order as to costs of the review before him." 21 Even apart from the way the decision was arrived at, which here invited an application for review, a decision of this kind may attract special considerations when the discretion as to costs comes to be exercised. In Shelton v Repatriation Commission (1999) 85 FCR 587 at 590, the joint judgment of the full court (Burchett, R D Nicholson and Finkelstein JJ) included the statement: "Often, in administrative law, such an application as this was clarifies the law in a wider interest than that of the applicant. Indeed, it is as essential to good administration as it is important in the interests of individual justice that administrative decisions should be open to accessible review. Persons affected by administrative decisions should not be overmuch deterred by the threat of costs orders in such cases, and the very wide discretion given to the Court by the Federal Court of Australia Act 1976 (Cth) should not be automatically exercised adversely to the losing party." That was an appeal from the Administrative Appeals Tribunal in respect of the refusal of a war widow's pension. Other cases, like the present, may involve the applicability or inapplicability, and thus the reach, of solemn obligations undertaken by Australia pursuant to international conventions. The scope of such rights, and the adequacy of Australia's fulfilment of its obligations to accord them in all proper cases, may be compared to rights and their incidents pursuant to Constitutions: see Ahnee v Director of Public Prosecutions [1999] 2 WLR 1305 at 1315. There, Lord Steyn, speaking for the Privy Council, said: "Given that the real substance of the appeal concerned important matters of constitutional law, and that bona fide resort to rights under the Constitution ought not to be discouraged, their Lordships make no order as to costs." It cannot be thought that bona fide resort (and I am satisfied this application was brought bona fide) to rights conferred by Australia, pursuant to the obligations it has undertaken under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951, ought, on the contrary, to be discouraged. See also Q v Minister for Immigration & Multicultural Affairs [1999] FCA 1202; Muli v Minister for Immigration and Multicultural Affairs [1999] FCA 1155. 22 For these reasons, the application is dismissed, but I make no order as to costs.