Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: referred to
findings of the Tribunal recorded and relied upon by Nicholls FM below included the following (to which I have already made partial reference but repeat for completeness): the appellants could safely and reasonably relocate out of their home district (the Dhaka district) in Bangladesh to one of the other 63 districts in Bangladesh; the Tribunal was clearly conscious of the relevant test to be applied in considering the issue of relocation, namely that the Tribunal should not merely address whether an applicant could relocate to another area but whether the applicants could reasonably be expected to do so ( Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 442 per Black CJ); the Tribunal did look specifically at the relevant country information about population size and dispersal in Bangladesh, the dispersal and spread of relevant political parties, issues relating to politics and violence in Bangladesh, and the judiciary and police and the role they played in Bangladeshi affairs, and also the appellant husband/ father's ability to 'support himself and his family in an unfamiliar country (Australia) for almost six years' and found that it had 'no doubt' that the appellant husband had the ability 'to support himself [and his family] in the country in which he was born, and educated, spent most of his life, and still had family'. Upon the footing of each of those 'three good sets of reasons' so-called by the Tribunal, the Tribunal made supplementary observations to be read in conjunction therewith, including reference to Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-443 for the proposition, which I have already foreshadowed, that protection is not available in the case of a well-founded fear in an applicant's home region where that applicant can 'nevertheless avail [himself or herself] of the real protection of [his or her] country of nationality elsewhere within that country' . The Court added the qualification that the applicant must also be able to 'genuinely access domestic protection' , and relocation needs to be a reasonable option in the particular circumstances (see in that regard Beaumont J at 450-1). The Tribunal member concluded his reasons for decision as follows: the above reasons, I conclude that the applicant does not face Convention-related persecution in Bangladesh because there is nothing credible in his claims to indicate that he has a profile which would lead to him being wanted by the Awami League or the authorities or anyone else outside of Dhaka let alone in Dhaka. inadequacies and inconsistencies of the applicant's claims and of his behaviour in pursuit of his claims lead me to conclude that the applicant did not and does not have a genuine fear of persecution. The reasons set out above lead me to conclude that he has no well-founded fear of persecution within the meaning of the Convention. Accordingly, I am satisfied that he is not a refugee.' It was partly in the context of the formulation of those 'three sets of reasons' of the Tribunal of a fundamentally factual or circumstantial character, and of his Honour's consideration of the implications thereof, that Nicholls FM concluded his reasons for judgment below by reference to what he described as the critical issue arising on the appeal to the Federal Magistrates Court, explained as follows: critical issue therefore, even if the Tribunal breached the requirements of s 424A (as understood in the context of SAAP in relation to one ground ("sets of reasons") upon which the decision was made, is whether there is one or more other grounds on which the decision was based, which cannot, or are not, impeached. That is, was there another separate basis, or bases, upon which the decisions may be supported. The Tribunal itself by the very language that it used clearly differentiated between at least three sets of reasons that it gave for affirming the decision under review. Bearing in mind the relevant authorities even if there is some difficulty in the Tribunal's first set of stated reasons (the first part of the first set), the second and third reasons, independently and separately from each other, and then the Tribunal's separate and independent finding in relation to relocation are each not in my view affected by jurisdictional error and can independently support the Tribunal's ultimate conclusion that the applicant did not satisfy the relevant criteria for a protection visa. Had I not dismissed on the basis of unwarrantable delay, I would have dismissed on this basis in any event.' I have earlier of course made reference to that delay attributed by the Federal Magistrate to the appellants. It is of assistance, in the context of the complexity and detail of the reasoning and findings of the Tribunal and of Nicholls FM below, to read the conclusions of his Honour upon the four principal issues identified by his Honour in association with his summary of the Tribunal's findings appearing in [5] of his reasons for judgment below. Those issues may be described (as has been foreshadowed) first as to exaggerations and fabrications of the adult male appellant in respect of his political activism, secondly as to behaviour inconsistent with his having any genuine fear of persecution, thirdly as to recent independent country information, and fourthly as to the implications of the country information concerning safety of relocation in Bangladesh available to the appellants. Such four themes are not to be read in any mutually exclusive way, as is apparent from the text of the so-called three sets of reasons of the Tribunal ( ante ). The material presented in writing by the appellants at the hearing of the appeal from the decision of the Federal Magistrates Court consisted of an amended notice of appeal and written submissions, which were provided by the appellants only several days prior to the hearing of the appeal. It is appropriate that I reproduce the text or substance (as the case may be) of the appellants' written submissions, and address such oral submissions of additional significance, as ultimately pursued by the appellants. The issues raised by the appellants in the amended notice of appeal were framed mainly in relation to their contentions as to the operation of s 424A of the Migration Act in circumstances postulated by the respective parties, and did not explicitly address the critical issue of unwarrantable delay on the part of the appellants, which latter issue was however the subject of oral submissions. The Minister submitted that the appeal could be dismissed on the basis that the issue of unwarrantable delay was not touched upon in the notice of appeal or the amended notice of appeal.