Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: followed
The present and well-entrenched state of Full Federal Court authority is that a claim to refugee status is not established by those who could reasonably avail themselves of the real protection of the country of nationality elsewhere within their country of nationality: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 (' Randhawa' ) per Black CJ at 440 (cf my remarks in dissent in NALZ v Minister for Immigration &amp; Multicultural &amp; Indigenous Affairs [2004] FCAFC 320 ; (2004) 140 FCR 270 at [8] ). The question is whether the person can relocate to another area of the country, and, it is said, whether he or she could reasonably be expected to do so. However, answering this question is influenced by the principle that: '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' (per Black CJ in Randhawa at 442). 57 The appellant submitted that the Tribunal incorrectly took a general approach that there must be a safe haven somewhere in Indonesia, and did not consider, as a matter of practical reality, the issues raised by the appellant as required ( Randhawa at 443). The appellant submitted that the specific issues which the Tribunal was obliged, but failed to consider were: 1. the psychological difficulties of continuing to live anywhere within a country and culture in which the appellant had experienced rape on two occasions; 2. the appellant's need, as a single mother (her husband having died in January 2001), for the support of her family; 3. the appellant may face discrimination and/or harm living as a single woman with children without any family protection; 4. the appellant has never lived outside Cenkarang (apparently a suburb of Jakarta) in Indonesia as a single woman; and 5. the only family the appellant has who are outside Cenkarang live in Australia. The Tribunal did not advert to the fact that all of the appellant's relatives living in Indonesia live in Cenkarang. 58 The Tribunal also failed to take into account its finding that the incidence of rape of women in Indonesia generally is a problem and the fact of a general social prejudice against ethnic Chinese Indonesians. These are probable issues for the appellant, who would effectively be without family support. In oral submissions counsel added that the Tribunal did not take into account that the appellant may have her children with her if she relocates, unlike her experience in Australia, which had encouraged the Tribunal to regard her as a relatively resilient person. 59 The Minister denied the claim that the Tribunal merely assumed there was a safe haven within Indonesia, and argued that it is for the Tribunal to determine the significant issues in assessing the matter of relocation. It cannot be assumed that, because the Tribunal has failed to refer expressly to an issue, it has failed to consider it. The proper inference is that the issues referred to by counsel for the appellant were not considered by the Tribunal to be as significant as those the Tribunal mentioned. Also, of the issues listed by the appellant's counsel, factors (1) and (3) go to whether the appellant would want to live in Indonesia at all, rather than to whether she could relocate. Issues (2) and (5) concern the appellant's wish to have family support, which was acknowledged by the Tribunal, and issue (4) could properly be considered not to carry great weight, given that the appellant had successfully made her way in the unfamiliar cultural environment in Australia. The brevity, it was submitted, of the Tribunal's reasons on this matter 'does not detract from the breadth of the consideration'.