Consideration
33 I deal first with the proposed ground concerning the 2002 and 2005 documents. The 2005 document contained "revised eligibility guidelines", which, as stated in its introduction, were introduced because "[t]he wide range of profiles of Columbian asylum seekers and the rapidity with which armed conflict is involving pose difficulties, for determination of Columbian asylum claims". One of the issues addressed in the document is the capacity for irregular armed groups to track down victims of extortion who relocate within Colombia. It included information that most "agents of persecution" have the capacity to collect detailed information on victims and to track people throughout Colombia, and that once person has became a victim of extortion, the possibility of them obtaining protection was limited.
34 The document also referred to a report by an adjunct Professor at Georgetown University. According to the report, "guerrilla and paramilitary groups" often had sophisticated technology and could track people throughout Colombia, including those who relocated to big cities such as Bogota. There had been cases where people had left Colombia for months or years and had been killed when they returned.
35 Under a heading "Internal flight or relocation alternative", the document discusses the Refugees Convention and states that "if internal flight or relocation is to be considered in the context of refugee status determination, a particular area must be identified and the claimant provided with an adequate opportunity to respond". It further states:
"When considering that a fear of persecution or other threats to life or liberty being experienced in Columbia could reasonably and successfully be avoided by moving to other parts in Columbia decision-makers should take into account all the circumstances of the case against the background of the current situations outlined above. In addition, it is important to bear in mind the risk inherent in travelling from one area to the other as well as the fact that Columbia has large numbers of IDPs living in deplorable conditions in urban and rural areas. Decision-makers are therefore generally advised not to apply the notion of internal relocation alternative". (Emphasis added)
36 Plainly enough, the 2005 document contained material which would have challenged the approach taken by the Tribunal to relocation and may well have resulted in a different decision. It is difficult to understand why, in the ordinary course, the Tribunal would not have recourse to recent UNHCR reports, if available, as an almost essential part of its decision-making. The UNHCR is an international organisation of high repute dealing with issues concerning refugees in a variety of contexts.
37 The appellants relied on the comments of Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 170. Wilcox J determined that in refusing to grant permanent residency to the applicant, the Minister had failed to take into account relevant considerations, which was a sufficient ground for the decision to be set aside. His Honour considered whether the decision was "so unreasonable that no reasonable person could make it". His Honour said (at 170):
"But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to be to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of decision-making power in a manner so unreasonable that no reasonable person would have so exercised it. It would follow that the court, on judicial review, should receive evidence as to the existence and nature of that information". (Emphasis added)
38 However, in Prasad, Wilcox J did not apply the principle to the facts because "little new material emerged at the hearing" (at 176). His Honour also noted that it was not strictly necessary for the point to be decided.
39 Wilcox J revisited his earlier comments in Prasad in Foxtel Management Pty Ltd v Australian Competition and Consumer Commission (2000) 173 ALR 362 and said:
"It will be a relatively rare case in which a statutory decision is vitiated because of a decision-maker's failure to make inquiries. It will need to be apparent that relevant material was readily available to the decision-maker, but ignored".
40 However the alleged jurisdictional error is that the Tribunal should have accessed the 2002 and 2005 documents, but did not. In Prasad, Wilcox J spoke of circumstances where it was obvious that material was readily available which was centrally relevant. But his Honour's observations concerned a challenge to a decision by reference to s 5(1)(e) and s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth), namely on the basis that the decision involved the improper exercise of a power because the decision was so unreasonable that no reasonable person could have so exercised the power. Importing the observations of Wilcox J (quoted at [37] above) into a case such as the present, it would be necessary to determine to whom it was obvious that material was readily available. Is that an assessment made after the event by reference to facts proved in the judicial review proceedings (facts such as the Tribunal had the 2003 and 2005) but without proof that the Tribunal member knew of the documents? Or does it additionally require proof that the Tribunal member was aware that the documents were held by the Tribunal or at least knew that it was likely that such documents were held by the Tribunal? The answer is suggested by Wilcox J who referred, before the quoted passage, to circumstances where the decision maker unreasonably fails to ascertain relevant facts which he or she knew to be readily available to him or her (at 169.9). In the present case one would have thought it would be necessary to demonstrate that the Tribunal member knew of the documents existence or, perhaps, ought to have known that it was likely the documents existed and were readily available. The evidence in this case would not support a finding to that effect even inferentially. In my opinion, the point sought to be raised by the appellant about the 2002 and 2005 documents has insufficient prospects of success to permit it to be raised in this appeal. Consequently I refuse the appellant leave to amend the notice of appeal to add this ground.
41 I turn now to consider the Randhawa ground. While it received only limited attention by counsel for the parties, particular (b) to that ground appears to me to be of some importance. In Randhawa, the Full Court considered the appropriate test to be applied regarding the question of whether an applicant can be reasonably expected to relocate to another area in their country of nationality. The relevant principles established by the Full Court in that case appear in the judgment of Black CJ at 442-443:
"This further question, [whether the appellant could reasonably be expected to relocate to another area] 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.
Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an application for refugee status from reaching safety within the country of nationality and easily extends to circumstances such as those present in R v Immigration Appeal Tribunal Ex parte Jonah [1985] Imm. A.R .7. Professor Hathaway, op. cit. at 34, expresses the position thus:
"[The internal protection principle] 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 original text]
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…
…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… 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…"
42 The observations of Black CJ in Randhawa (with whom Whitlam J agreed), reinforced by those of Gleeson CJ, Hayne and Heydon JJ in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222 CLR 1 at [19], establish that an applicant must establish that he or she cannot reasonably be expected to relocate to another area of their country of nationality. Yet the difficulties faced by an applicant in demonstrating that there is no other area to which they can reasonably be expected to relocate are often formidable. There are at least two main sources of difficulty. Firstly, the issue of relocation is almost always raised by the Tribunal, not the applicant, and raised at the hearing. The significance of this is particularly acute in cases where the applicant is not represented before the Tribunal, although that is not the present case. Secondly, the issue is necessarily speculative. This second issue raises the importance of the Tribunal properly evaluating what the asylum seeker says about relocating. This issue requires consideration of not only whether a safe haven exists in another part of the country. Proper consideration must also be given to the issue of relocation as a practical matter, by considering whether it would be reasonable to expect the person to relocate in view of all the "practical realities" facing that person.
43 In this matter, central to the appellant's case was that he would return to the farm and, in the result, be in the same position he had been in when he suffered persecution. That the appellant would feel compelled to return to the farm is clear from the evidence he gave at the Tribunal hearing. For example (omitting parts not in English and with the appellant's answers given as translated by the interpreter):
Chairperson: Now, what I want to hear from you, if anything, is any reason why you could not live in other part of Colombia.
Interpreter: So, if I go back to Colombia, I would go back to the farm, because that's what I can do. I would have to growing coffee and being involved with the political life, because because that what I like, that's what I learned to do; and I'm not going to… let a few bandits dictate what I can or cannot do.
44 The appellant's answers in the following exchange are to the same effect:
Chairperson: Which really brings me to that… to the significant problem with your case. And that's that… if you said to me that if you returned to Colombia and lived somewhere away from region, that the chance for you to face persecution there would be remote.
Interpreter: No, because I think that if I went back to Colombia, I couldn't be there and… that the farm has been abandoned; I would have to go back and… because it is my family's and it is mine.
Chairperson: You see that really doesn't make any sense because you are in Australia and the farm is abandoned. So if you are in Australia and you can't go back to the farm, you could be in Bogota and not go back to the farm.
Interpreter: I can't… a situation like this; if I go back to Colombia, I cannot leave the farm like that; it's just not…
Chairperson: So you could leave the situation like that in Australia but if you were back in Colombia, you wouldn't be able to?
Interpreter: No, if I went back to Colombia, I would have to go back to the farm.
45 That the appellant felt the farm belonged to his family was also made clear:
Chairperson: Right. Okay. So, your father is actually the owner of the farm?
Interpreter: Yes, it's true that the papers are in his name, but what's his is his wife's and his family's also.
46 When asked whether his family's income had been derived from the farm, the appellant answered "partly".
47 The appellant also gave evidence about the current state of the farm:
Chairperson: Okay… So, does your father still own the farm?
Interpreter: Yes, at this moment.
Chairperson: right. So works the farm?
Interpreter: It's abandoned.
Chairperson: Right. So no workers there, nothing there?
Interpreter: No, just a few days, someone goes and… keep an eye… and goes back, because no one can stay there.
Chairperson: Okay. So when you say someone goes to… who's that someone, a worker, your father, somebody else?
Interpreter: It's a farm worker.
Chairperson: So your father still pay him to do that?
Interpreter: Yes
Chairperson: Okay. So, what kind of farm was it? What was growing there?
Appellant: Coffee… Coffee.
Chairperson: Right. So is coffee still being grown or not?
Interpreter: Yes.
Chairperson: Okay. So no one's living there but… Is the farm still producing income for the coffee?
Interpreter: But it gets lost because… the coffee is lost because there's nobody to… crop it.
Chairperson: Okay. So there is no actual harvesting on the farm, is there?
Interpreter: Sporadically, whoever goes for two or three days harvest a little bit, because it seem like a shame to let it go to waste.
48 The Tribunal member also asked the appellant about his employment. In relation to his employment in Colombia, the following exchange took place:
Chairperson: Okay… So before you left Colombia, you were managing the farm. Is that right?
Interpreter: Yes, that's right.
Chairperson: Had you had any other employment in Colombia?
Interpreter: No, basically… I was at the farm.
49 What emerges from the evidence given by the appellant at the Tribunal hearing is the following. The farm was still owned by the appellant's father and producing coffee and some sporadic harvesting still took place. His father was paying a farm worker to keep an eye on the farm. If the appellant returned to Colombia, he would feel compelled to return to the farm because it belonged to his family and farm work was the only kind of work he had done in Colombia. His family's income was also partly derived from the farm.
50 In its reasons, the Tribunal recounted that the applicant had claimed that if he returned Colombia he would effectively feel compelled to return to the farm and be a coffee grower. That is a clear and unambiguous import of the evidence set out earlier. In response to this, the Tribunal said, in the reasons, "I do not accept the applicant's claim in this regard". In support of this conclusion, the Tribunal pointed out that the applicant had been prepared to live in Australia without contact with his farm and he could likewise live in Colombia without contact. It then pointed to work he had done in Australia (construction and cleaning) and that his wife had worked as a trade beauty therapist.
51 However what the Tribunal has done, in my opinion, is to provide bare logical alternatives to what the appellant indicated he would do without testing whether the logical alternatives, in the face of the appellant's asserted wish to return to the farm, were reasonable. The question of whether an asylum seeker, who claims of having been persecuted have been accepted, will be compelled to act in a particular way because of family obligations, is not answered by pointing to conduct plainly arising from his earlier persecution. That is, it was not open to the Tribunal to reject the appellant's claim that he would feel compelled to return to the family farm if he were to return to Colombia, by pointing to the fact that he abandoned the farm by fleeing to Australia. His fleeing to Australia was to escape persecution. The Tribunal did not give any real consideration to the specific impediment raised by the appellant, namely that he would feel compelled to return to work on the family farm.
52 On one view, the Tribunal's conclusion that it "did not accept the [appellant's] claim in this regard" was no more than a finding of fact. That was the approach of the Federal Magistrate. But in substance, it was significantly more. It was not a finding about past events but a conclusion that it would be reasonable to expect the appellant to relocate within Colombia without given any real consideration to the specific issue he had raised. An assessment of whether it was reasonable in the circumstances to expect the appellant to relocate could not be made by merely pointing to the fact that the appellant had not been on the farm for some years because he is in Australia and had not been doing farm work whilst in Australia. The test propounded by Black CJ in Randhawa requires that the evaluation be proper, realistic and fair and all the circumstances be taken into account. In my opinion, the Tribunal misunderstood the content of the principle propounded in Randhawa, did not apply it and thereby fell into jurisdictional error.
53 The appeal should be allowed with costs, the Tribunal's decision set aside and the matter remitted to the Tribunal.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.