Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: applied
In relation to the fifth ground, his Honour found that the Tribunal had taken into account the relevant factors and correctly applied the test in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (" Randhawa "). 20 In addressing the final ground, the Federal Magistrate found that the Tribunal had considered the materials presented to it by the appellant. His Honour regarded the appellant's claim that his feeling about the farm had been ignored as an attempt to challenge the factual findings, and found that the Tribunal had considered this aspect of the evidence. His Honour dismissed the application. 21 The notice of appeal filed 30 October 2006 identified the following three grounds of appeal: 1. His Honour erred as the Tribunal failed to take into all relevant material including United Nations High Commissioner for Refugees ("UNHCR") reports on internal relocation in Colombia; 2. His Honour erred at [40] because the principles of the Convention of the Rights of the Child have been incorporated into Australia law through case law; 3. His Honour erred in finding that the Tribunal did consider the situation in Colombia as only one extract of country information it relied on related to internal relocation. 22 Before the first hearing date of 5 March 2007, the appellant filed written submissions attaching a proposed amended notice of appeal identifying one ground. That ground was: "The Federal Magistrate erred in his finding at [46] that the Tribunal correctly applied the test in Randhawa that it was reasonable for the applicants to relocate within Colombia PARTICULARS a. The Tribunal failed, or failed adequately to determine whether an appropriate level of protection existed in any other part of Colombia. b. Lead Tribunal failed to have regard, or failed to have appropriate regard to the applicants' personal circumstances and the practical realities in the event of such relocation" 23 I will refer to this as the Randhawa ground. The Minister's had also filed written submissions in relation to the proposed amended notice of appeal. However the hearing was adjourned to allow the appellant to file and serve a proposed further amended notice of appeal raising a further ground and any evidence in support, and for both parties to provide submissions. Counsel for the appellant indicated that the further ground concerned the Tribunal's failure to access a document published by the United Nations High Commission on Refugees dated September 2002. Counsel for the Minister indicated that an amendment to raise the new ground would be opposed. Counsel for the appellant also made oral submissions on the Randhawa ground. 24 After the first hearing, the appellant served on the Tribunal a notice to admit facts. The notice required the Tribunal to admit, for the purpose of these proceedings, that on 4 December 2005, being the day before the Tribunal decision was made, the Tribunal held a document entitled "'International protection considerations regarding Columbian asylum seekers and refugees" from the UNHCR, Geneva, September 2002 and later revised in September 2005. The appellant also served on the Tribunal a notice to produce dated 6 March 2007, requiring the Tribunal to produce a catalogue of all the material held by the Tribunal relating to Colombia. 25 The Tribunal responded in a letter dated 20 March 2007 from its solicitors. It stated that the notice to produce was defective because it required production before the day of the final hearing, contrary to O 33 Rule 12 of the Federal Court Rules . It stated also that, in any event, the catalogue sought was not relevant to any issue in dispute, and that the Tribunal did not hold any such document. It enclosed a notice to dispute facts, by which the Tribunal disputed that it held the held the document identified in the notice to admit facts. It admitted that it held the following two documents: 1. A document entitled "International protection considerations regarding Colombian asylum-seekers and refugees", UNHCR, Geneva, September 2002 ("the 2002 document"); 2. A document entitled "International protection considerations regarding Colombian asylum-seekers and refugees", UNHCR, Geneva, March 2005 ("the 2005 document"). 29 The proposed further amended notice of appeal contained two grounds. The first was the Randhawa ground. The second ground was that the decision of the Tribunal was void for jurisdictional error by reason of unreasonableness and constructive failure to exercise jurisdiction. This ground was not raised before the Federal Magistrates Court. The claim in substance is that the Tribunal fell into jurisdictional error by failing to have regard to particular country information relevant to the question of the reasonableness of relocation in Colombia. That information was the 2002 document and the 2005 document. The appellants contended that those documents were "readily available" to the presiding member of the Tribunal and were "centrally relevant" to the decision to be made. The Tribunal's failure to obtain and have regard to the documents was said to have had the result that the Tribunal exercised its power in an unreasonable manner and constructively failed to exercise its jurisdiction according to law. 30 In opposing the grant of leave to file the further amended notice of appeal, the Minister relied on the lack of a reasonable prospect of success of the ground, the lack of an acceptable explanation as to why it had not been raised below, and prejudice if the amendment was allowed. 31 The 2002 document and the 2005 document were annexed to an affidavit of the appellant's solicitor, Michaela Byers, sworn 16 April 2007. The Minister did not oppose the affidavit and annexures being admitted into evidence for the purpose of determining the application for leave to amend. However, if leave was granted, the Minister opposed the admission of the affidavit into evidence on the ground that the appellant has failed to satisfy the requirements for adducing further evidence on appeal. In particular, it was submitted that no explanation had been provided as to why the fresh evidence could not, with reasonable diligence, have been adduced at first instance. 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] HCA 18 ; (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. 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. Associate: Dated: 30 August 2007 Counsel for the Appellant: Mr I Archibald Solicitor for the Appellant: Michaela Byers, Solicitor Counsel for the Respondent: Ms T Wong Solicitor for the Respondent: Clayton Utz Date of Hearing: 5 March 2007; 17 May 2007 Date of Judgment: 30 August 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1347.html