Case: Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: considered
The appellant has obliquely raised this issue in his third ground of appeal before me, namely that: "The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa v The Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437". 11 (The Full Court decision in Randhawa 52 FCR 437 clearly raises issues of relocation, as I outline later in this judgment.) 12 To a lesser extent, the issue is also raised by the appellant in his second ground of appeal, namely: "The Federal Magistrate had dismissed the case without considering the legal and factual errors in the Tribunal decision". 16 In Randhawa 52 FCR 437 the facts demonstrated that the appellant in that case, a Sikh from the Punjab region of India, would have had a well-founded fear of persecution were he required to return to his family's home in the Punjab. However the Full Court in Randhawa 52 FCR 437 held that the Convention definition of "refugee" does not support a claim to refugee status in circumstances where the appellant, although having a well-founded fear of persecution in one region of a country, could avail themselves of protection elsewhere within that country. This is only the case, however, if it is reasonable in the circumstances to expect a person with a well-founded fear of persecution in relation to that part of the country from which they have fled to relocate to another part of the country of nationality. If it is not reasonable, their fear of persecution in relation to the country as a whole is well-founded (per Black CJ at 440-441 and 443, Beaumont J at 451, Whitlam J at 453). 17 The principles articulated by the Full Court in Randhawa 52 FCR 437 were recently affirmed by the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634. In that case at pages 638-639 Gummow, Hayne and Crennan JJ agreed with the reasoning of Lord Bingham of Cornhill in Januzi v Secretary of State for the Home Department [2006] UKHL 5 ; [2006] 2 AC 426 where his Lordship said: The [Convention] does not expressly address the situation at issue in these appeals where, within the country of his nationality, a person has a well-founded fear of persecution at place A, where he lived, but not at place B, where (it is said) he could reasonably be expected to relocate. But the situation may fairly be said to be covered by the causative condition to which reference has been made: for if a person is outside the country of his nationality because he has chosen to leave that country and seek asylum in a foreign country, rather than move to a place of relocation within his own country where he would have no well-founded fear of persecution, where the protection of his country would be available to him and where he could reasonably be expected to relocate, it can properly be said that he is not outside the country of his nationality owing to a well-founded fear of being persecuted for a Convention reason (at [7]). 21 The notice of appeal raises ten grounds of appeal. These grounds are as follows: 1. The Federal Magistrate had failed to find error of law, jurisdictional error, procedural fairness and relief under s 39B of the Judiciary Act 1903 (Cth). 2. The Federal Magistrate had dismissed the case without considering the legal and factual errors in the Tribunal decision. 3. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down in Randhawa 52 FCR 437. 4. The Federal Magistrate failed to take into consideration that the Tribunal decision was unjust and made without taking into account the full gravity of the appellant's circumstances and consequences of the claim. 5. The Tribunal had ignored relevant material as to the appellant's Shi'a background which put his life at risk, relied in part on irrelevant material and made a finding which was erroneous or mistaken. 6. There had been a lack of procedural fairness in his case along the same line as Muin v Refugee Review Tribunal [2002] HCA 30 ; (2002) 190 ALR 601. In particular, the appellant claimed that his case was identical to Muin [2002] HCA 30 ; 190 ALR 601, where the Tribunal had misled the applicant before it in that case to believe that the Tribunal had read some material. 7. The Federal Magistrate did not consider the appellant's application dismissed on the date of hearing the application, and the appellant was not legally represented at the hearing before the Federal Magistrate. 8. The Tribunal was affected by jurisdictional error in that the Tribunal did not take into account certain relevant considerations or "integers" central to the appellant's claim. 9. The Tribunal failed to carry out its review function and exercise its jurisdiction in that: &#8226; it did not consider the immense and intimidating pressure on the appellant by Sunnis because of his Shi'a background &#8226; it did not consider the appellant's claim that Sunnis would kill him if he returned to Pakistan. 10. The Tribunal had applied the wrong test, in particular: &#8226; by requiring independent evidence of facts before the Tribunal would accept a claim being made by the appellant the Tribunal was, in fact, placing high onus of proof on the appellant and failing to give the appellant the benefit of the doubt &#8226; the Tribunal left out individual elements of the appellant's claims and tested whether they individually amounted to persecution rather than looking at the claim as a whole to determine whether the claim amounted to persecution.