Syan v Refugee Review Tribunal

This application raises for consideration that element of the definition which refers to a person who is unable or unwilling to avail himself of the protection of his country of nationality. The circumstances of the applicant can be briefly outlined and what follows is extracted from the reasons for decision of the Tribunal. The applicant was born on 24 June 1962 and is a national of Fiji. After the coup in Fiji in 1987, a friend of the applicant was involved in making a bomb which, it would seem, exploded killing one person and seriously injuring two others. As a result of the friendship between the applicant and the person who fabricated the bomb, the applicant was threatened and intimidated by Fijians in his village. On one occasion in June 1989 he was assaulted while driving a bus and his money was stolen. A bus owned by the applicant was damaged in the process. He was also warned he would be killed and his house burnt. Thereafter the applicant was confined to his house because of the threats to his life and he lived in horror and in extreme distress. These were the matters relied upon by the applicant in support of his application. The Tribunal made no finding that the applicant had a well founded fear of persecution and the findings of fact it made in relation to the material raised by the applicant were in comparatively general terms. The approach the Tribunal took 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 the matter I earlier referred to, namely whether the applicant was unable or, or owing to a well-founded fear of persecution, unwilling to avail himself of the protection of his country of nationality. This approach finds support in the judgment of Beazley J in Syan v Refugee Review Tribunal (1995) 61 FCR 284 which was a case in which the Tribunal had assumed the existence of a well founded fear of persecution and had then considered whether the applicant might reasonably be expected to relocate within the country of nationality. Her Honour concluded that this approach involved no error of law. No contrary submission was made in this matter and I proceed on the basis that the approach adopted by the Tribunal in considering the circumstances of the applicant was open to it. At one point in its reasons for decision the Tribunal recorded: "The applicant also gave evidence that he did not leave his village during the 7 years he was harassed and beaten because he did not know anyone else in another part of Fiji. In any case, he would have no income or a place to live if he re-located."

The Tribunal went on to set out extracts from Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991) concerning internal protection. The Tribunal then said: The Tribunal is satisfied that it would be reasonable for the Applicant to relocate in another part of Fiji and avoid persecution from members of his village. The Tribunal takes note of the fact that the Applicant has completed 10 years of education; he is a professional tiler, with a good employment record. The Tribunal cannot find any reason from the Applicant's evidence or background which makes it unreasonable to expect him to relocate." The challenge to the Tribunal's decision was based on the ground found in s 476(1)(e) of the Migration Act 1958 (Cth), namely that the decision of the Tribunal involved an error of law, being an incorrect application of the law to the facts as found by the Tribunal. The submission made on behalf of the applicant was that the Tribunal, in the first passage just quoted, made a finding that the applicant would, if required to relocate, have no income or a place to live. Thus, it was submitted, the Tribunal failed to apply the relevant law involving, as it would, consideration of whether relocation to a part of the country where protection is available can be reasonably expected of the applicant: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442, per Black CJ and 451, per Beaumont J. However the difficulty confronting the applicant, in my opinion, is that the Tribunal did not make the findings of fact that the applicant contends were made. Rather, in the first passage quoted the Tribunal simply recited an assertion made by the applicant in the course of giving his evidence. Implicit in the second passage quoted from the Tribunal's reasons, is a finding that the applicant, having regard to his professional skills and employment record would not find himself in the position he asserted he would be in. In that respect, that Tribunal was rejecting the suggestion that the applicant, if required to relocate, would have no income or a place to live. In dealing with this question the Tribunal was exercising a "degree of judgment" in the way described by Beaumont J in Randhawa (supra) at 452. It was not submitted by the applicant that the Tribunal failed to identify the relevant law. Rather, as just discussed, it was submitted that it had misapplied the law to the found facts. As I do not accept that the found facts include the facts relied upon by the applicant, the challenge to the Tribunal's decision must fail. I dismiss the application with costs. I certify that this and the preceding four (4) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Moore. Associate: Alexandra George Dated: 7 March 1997 APPEARANCES Solicitor for the Applicant: Mr C Levingston of Corby Levingston Counsel for the Respondent: Ms R M Henderson Solicitor for the Respondent: Australian Government Solicitor Date of Hearing:4 March 1997

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