SZFDV v Minister for Immigration and Citizenship

SZFDV v Minister for Immigration and Citizenship - [2007] HCA 41 - HCA 2007 case summary — Zoe

[9]

GUMMOW, HAYNE AND CRENNAN JJ. This appeal from the Federal Court of Australia (whose appellate jurisdiction was exercised by Madgwick J) was heard together with SZATV v Minister for Immigration and Citizenship[1] and the same counsel appeared on each appeal. These reasons should be read with those in SZATV.
Madgwick J dismissed an appeal from the dismissal by the Federal Magistrates Court of an application for certiorari to quash a decision of the Refugee Review Tribunal ("the Tribunal") (the second respondent in this Court and a submitting party), for prohibition directed to the Minister (the first respondent in this Court), and for mandamus directing the Tribunal to redetermine according to law the appellant's application for a protection visa.
The appellant is an Indian national, born at Theni in the State of Tamil Nadu in 1977. He arrived in Australia on 16 May 2004 and applied for a protection visa. In his application the appellant gave his religion as "Hindu". The application was refused by a delegate of the Minister on 11 June 2004 and the Tribunal subsequently affirmed the decision of the delegate.
On 13 October 2004, the appellant attended a hearing conducted by the Tribunal and gave evidence with the assistance of an interpreter. He had no legal or other representation at the hearing.
The appellant claimed that his father and his family sympathised with the Communist Party and that his brother had worked as a Party member in Tamil Nadu. The appellant left school when he was 16 years of age and after the death of his brother he was employed at the mill in Coimbatore where his father worked. The appellant worked at the mill for approximately three and a half years until the employer company ceased operations there in 2002. The mill was situated some 200 km from the home where his mother still lived and the appellant returned there after the closure of the mill.
The country information showed that according to the 1991 Census the population of Tamil Nadu was more than 62 million, 88.67 percent of the population were Hindus and Tamil was spoken by 86.7 percent of the population and Telugu by 2.2 percent.
The appellant asserted that while his brother had been working as a member of the Communist Party he had opposed the two major Tamil parties, the Dravida Munnetra Kazhagam (the DMK) and the All-India Anna Dravida Munnetra Khazagam (the AIADMK). He maintained that his brother had been killed by "rowdies" from these parties at a Communist Party meeting in 1998. The appellant did not distinguish between the Communist Party of India and the Communist Party of India (Marxist).
The appellant was elected a trade union leader of the employees at the mill and disputed some payments to the workers by their employer. He believed that the mill owners held him responsible for the subsequent closure of the mill by government order in 2002. He claimed, among other things, that the mill owners had used their influence as DMK members to procure the laying by the police of false charges of murder of a DMK leader, and that he had been assaulted by DMK "rowdies" in July 2003. Threats also were made to his family. The appellant claimed that in August 2003 he had moved to the capital of Tamil Nadu, Chennai (formerly Madras), where he had continued to fear persecution by DMK "rowdies". He stayed in Chennai until he left for Australia in May 2004, travelling on an Indian passport issued in June 2003 and with an Australian business visa.
The Tribunal stated:

[25]

In this appeal, I shall follow the same course as has been adopted in the joint reasons[13]. My reasons too should be read together with those in SZATV. I shall not set out again an analysis of the origins of the relocation test. Nor will I repeat the competing theories that have been offered to suggest a textual foundation, in the Refugees Convention definition of "refugee"[14], for importing consideration of whether the refugee applicant should (before resorting to a claim upon Australia for surrogate "protection" from persecution) reasonably relocate in his country of nationality, India, to a part of that country where he could safely secure that country's "protection".
Additionally, I shall omit the explanations that have been offered directed to the other principal way of looking at the problem, on a textual basis, by reference to whether the refugee applicant in Australia lacks the "well-founded fear" of persecution that is necessary to establishing entitlements under the Refugees Convention definition of "refugee", on the footing that, were the appellant now returned to India, he could safely relocate and suffer no persecution. All of these considerations are explained in SZATV[15]. It is unnecessary for me to repeat them here.
The appellant could not succeed in this appeal in a frontal attack on the relocation test as being inconsistent with the text and purposes of the Refugees Convention. Whatever may be the difficulties of reconciling the notion of internal relocation with the language, history and purposes of the Refugees Convention, an internal relocation test is now well established in international State practice (and also accepted by the United Nations High Commissioner for Refugees).
In judging an applicant's claim to refugee status it is therefore permissible to consider the reasonableness of the applicant's relocation to another place within the applicant's country of nationality. If, reviewing all the facts, it is concluded that the applicant, acting reasonably, will relocate if returned to that country, it will be open to the decision-maker in Australia to conclude, where the source of the fear of a Refugees Convention-related persecution is localised in the country of nationality, that the propounded fear of persecution is not "well-founded". On that ground, the claim of "refugee" status, in accordance with the Refugees Convention, could properly be refused.

[26]

Nevertheless, in Australia, where the decisions of the Tribunal are subject to the possibilities of judicial and constitutional review, the courts that perform such review are obliged to conform to the instruction of this Court on the requirements to be observed in discharging their function. Relevant to that instruction, in a case such as the present, is the decision of this Court in S395[16].
The decision in S395 was subsequently distinguished by a later decision of the Court, constituted differently, in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs[17]. Although that decision is, in some respects, difficult to reconcile with S395 (and although McHugh J and I, who sat in both cases, considered that the outcome in NABD of 2002 was governed by the holding in S395) the majority in the later NABD did not overrule or expressly qualify S395[18]. It follows that the binding principles of law established by S395 still operate in those cases to which those principles apply.
It remains, in the present case, to apply to the reasoning of the Tribunal, as it concerned the appellant SZFDV's submissions, not only the conclusions expressed by this Court in SZATV (that an internal relocation test might, as a matter of principle, properly be applied), but also the holdings that this Court had earlier laid down in S395 (that the search is for what the particular applicant will in fact do if returned and it cannot be hypothesised that he will surrender the basic rights which the Refugees Convention is specifically intended to protect).
The essential question in this appeal is not, therefore, whether it was permissible for the Tribunal to consider the hypothesis of internal relocation by the appellant within India at all. So much is not now in doubt. The question is whether, in proceeding to consider that hypothesis, the Tribunal conformed to the approach which this Court's majority established by its holding in S395.
Whereas in SZATV[19], non-compliance by the Tribunal with this Court's decision in S395 might have been understandable, because the Tribunal's decision in that case was given before the publication of this Court's reasons in S395, the circumstances of the proceedings involving SZFDV are different. In his case, the decision of the Tribunal was reached in October 2004 and handed down in the following month. This was therefore well after this Court's reasons in S395 became available. Although those reasons were not referred to by the Tribunal in this case, by the time of its decision, they were undoubtedly available to it. In any case, they represented (and continue to represent) the law, binding on the Tribunal, until this Court, or the Parliament within its powers, alters the principles stated in S395.

[40]

Failure to address well-foundedness: Secondly, because of the way in which the Tribunal approached the matter (contrary to the requirement of individual factual prediction established in S395), it failed to address the issue of reasonable relocation within India in the only way that is permissible under the Refugees Convention. Specifically, it failed to examine the "well-foundedness" of the appellant's current fear of persecution, based on the reality of what in fact he would reasonably do if he were returned to India.
This was not a hypothetical or theoretical problem in the case which the appellant propounded. Relocating from Tamil Nadu to Kerala is not the same thing as relocating from Victoria to Tasmania or relocating within Ukraine. The appellant's family, upbringing, language, culture, cuisine, tradition, friends, political colleagues and other links were all with the Tamil speaking people in the State of Tamil Nadu. The postulate that the appellant would move to a significantly different linguistic, cultural, political and familial environment of Kerala, simply because it is within the country of his nationality, portrays not only a naïve ignorance of the diversity of India but also a failure to address the relocation test in the correct way, as explained in SZATV.
The Tribunal's analysis of the appellant's case, given effectively in three pages of reasoning, is extremely slim[30]. However, if a want of real attention to the foregoing considerations might amount to an error within jurisdiction, the failure to address the postulate of internal relocation in a manner anchored to the Refugees Convention text is an error of jurisdiction requiring correction by this Court.
Failure to uphold Refugees Convention rights: Thirdly, I now reach the most serious error on the part of the Tribunal. It betrays a failure to address the correct question for decision and is thus a clear jurisdictional error. The reasons of the Tribunal indicate no attention at all to whether it would be inconsistent with the purpose of the Refugees Convention to require the appellant to relocate within India, given that his asserted fear of persecution is claimed as being on the basis of his expressions of his political opinion. In the appellant's case, that political opinion was not addressed to changing the government and political culture in the State of Kerala. Rather, it was addressed to changing the power structures (including the government) of the appellant's native state of Tamil Nadu, a distinct society within India.
Although relocation within a country of nationality may sometimes be reasonable, and in a given case may deprive an applicant for refugee status of the "well-founded fear of persecution" for a reason expressed in the Refugees Convention necessary to attract "refugee" status, such relocation cannot be "reasonable" (and thus cannot be imposed by the Tribunal) where to relocate would effectively destroy the very protection which the Refugees Convention-related reason is designed to afford to the individual.
In this important respect, this case is analogous to SZATV. There, the Tribunal contemplated the return of the appellant to Ukraine, but under conditions not only of physically moving his residence but of abandoning his political opinions expressed as a journalist, and getting work in the construction industry that would not involve him in expressing his political opinions. This Court has concluded (correctly in my view) that, to impose such a requirement amounted to jurisdictional error entitling SZATV to relief from the Court.
Here, the Tribunal also contemplated the appellant's abandonment of his political opinions in India in the only place where it was relevant and important to the appellant to hold and express these political opinions, namely in the State of Tamil Nadu[31]. In effect, the Tribunal's approach in this case therefore amounts to the type of demand upon the appellant to "live discreetly" by reference to a ground stated in the Refugees Convention. Yet that is a demand that this Court's decision in S395 rejected. Where the "discreet living" (moving to Kerala and opting out of the relevant political discourse) amounts to a negation or abdication of the relevant basic right expressed in the Refugees Convention, it is an error of jurisdiction effectively to impose that requirement in an applicant's case[32]. Yet that is what the Tribunal did in the case of SZFDV.

[41]

Requirement to decide merits: The claim by SZFDV of fear of persecution for a Refugees Convention reason on return to India appears rather thin on its evidentiary merits. Country information would demonstrate the existence of an active multi-party opposition movement in Tamil Nadu, including in the city of Chennai where the appellant lived. It would also establish the presence there of independent courts, including the High Court of Bombay, able to uphold the rights of individuals expressing minority political and industrial opinions.
Instead of approaching the appellant's claim in an orthodox manner, and determining that claim by reference to the evidence of the basis, or absence, of a "well-founded fear" of the kind specified in the Refugees Convention, the Tribunal took what has increasingly become an all too easy exit from the hard decisions required in evidentiary adjudications of this kind.
If the present appeal is dismissed, that "easy exit" will be invoked in even more cases in the future. This will be especially so where a country is large and diverse and where the refugee claim adjudicator or the Tribunal simply postulates their own view as to the reasonableness of an applicant's internal relocation. That postulate should never be allowed to undermine the important rights expressed in the Refugees Convention. Least of all should this occur by reasoning which fails in the three relevant respects to conform to the instruction of this Court in S395.
Discretionary withholding of relief?: Finally, I must consider whether the appeal should be dismissed in the exercise of the Court's discretion to withhold relief in the form sought by the appellant[33]. The provision of that relief is always discretionary. In his reasons, Madgwick J postulated the possibility that the Tribunal member's factual findings "would, in any event, mandate the conclusion that he would relocate"[34].
I do not read such a conclusion into the Tribunal member's reasons. This is because the Tribunal omitted to ask what the appellant would do in fact, if returned to India. Instead, it concerned itself with what the Tribunal itself should, and could, notionally require of him. This is the type of jurisdictional error on the part of the Tribunal that must be nipped in the bud. Otherwise, the Tribunal will continue to ask whether the refugee applicant should relocate rather than whether, acting reasonably, the applicant on return will relocate. In effect, this is the error of asking the question "what an individual is entitled to do as distinct from what the individual will do". And that was correctly identified by Gummow and Hayne JJ in S395 as jurisdictional error warranting the intervention of this Court[35]. The error does not become more acceptable by becoming more common. Nor is it more tolerable because the error is expressed by reference to a country like India rather than Ukraine.
If the Tribunal had not looked for an easy way out (by considering internal relocation) but had addressed the question of whether, in fact, the appellant's propounded fear of persecution if returned to Tamil Nadu in India was "well-founded", a negative conclusion on the merits would not have been at all surprising. But because the Tribunal avoided that issue and reached instead for the internal relocation option, and then stumbled, its decision cannot stand. Consistent with what this Court has said and done in S395 and in SZATV, the appellant is entitled to relief.

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