Case: Randhawa v Minister for Immigration, Local Government &amp; Ethnic Affairs (1994) 52 FCR 437
Outcome: followed
One ground, however, asserts that the Federal Magistrate failed to apply " the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Affairs (1994) 52 FCR 437 ". 8 Randhawa v Minister for Immigration, Local Government &amp; Ethnic Affairs (1994) 52 FCR 437 was a decision of the Full Court which concerned whether a person was a refugee who could reasonably relocate within his own country. Black CJ, at 440 1, concluded in part as follows: The appellant's primary argument must be rejected. Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders. Whitlam J agreed. The conclusions of the Chief Justice were further considered by the High Court in SZATV v Minister for Immigration &amp; Citizenship [2007] HCA 40 at [10] , [2007] HCA 40 ; 237 ALR 634 at 636 per Gummow, Hayne and Crennan JJ. Their Honours there accepted that the basic test is whether it is reasonable, in the sense of being practicable, for a claimant to relocate to a region where objectively there is no appreciable risk of the occurrence of the feared persecution. 13 Leave to raise reliance upon Randhawa is refused. It is a ground which has no substance. 14 A number of grounds assert that the Tribunal failed to consider the claims being advanced. One ground thus asserts that the Tribunal's decision failed to take " into account the full gravity of my circumstances and consequences of the claim ." Another ground separately asserts that the " Tribunal did not take in to account certain relevant consideration or 'integers' central to the applicant's claim ". Other grounds refer to the " immense and intimidating pressure " to which the now Appellant was exposed and assert a failure on the part of the Tribunal to consider those matters. 15 A number of answers may be given for rejecting these grounds. 34 In the present proceedings, a number of the Grounds of Appeal are in substantially the same terms as were before Justice Collier in SZINP v Minister for Immigration &amp; Citizenship [2007] FCA 1747. Those grounds in the present appeal provided (without alteration): 3. The learned Federal Magistrate has dismissed the case without considering the legal and factual errors contained in the decision of the Refugee Review Tribunal. 4. The Federal Magistrate made a legal, factual and jurisdictional error in not applying the principles laid down by the full court of Federal Court in Randhawa v The Minister for Immigration Local Government and Ethnic Afairs (1994) 52 FCR 437. 5. The Federal Magistrate failed to take consideration that the Tribunal decision was unjust and was made without taking into account the full gravity of my circumstances and consequences of the claim. ... 11. The Tribunal applied the wrong test: Particulars: a) The Tribunal applied the wrong test, by requiring independent evidence of the fact before the Tribunal would accept a claim being made by the applicant the Tribunal was , in fact , placing high an onus of proof an the applicant and failing to give the applicant the benefit of the doubt. b) The Tribunal left out individual elements of the applicant's claims and tested whether they individually amounted to persecution rather than look at the claim as a whole to determine whether the claim so considered amount to persecution. The grounds as they were expressed in the proceedings before Collier J differed to the extent that those grounds did not refer to the Magistrate as being " learned " and did not refer to the decision in Randhawa as being a decision of the Full Court or the citation to that decision. There is not much other difference between these grounds in the present proceedings and those before Collier J. 37 Reliance upon Randhawa may provide a further instance. The ground now relied upon in this Court did not find its counterpart in any of the grounds relied upon before the Federal Magistrate and was not mentioned in the applicant's written submissions as filed with that Court. 38 Other parallels may also be discerned from a comparison between the grounds raised in the present proceedings and those before Collier J. 39 The orders of the Court are: 1. The appeal be dismissed. 2. The Appellant to pay the costs of the First Respondent of and incidental to the appeal. I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Flick. Associate: Dated: 20 May 2008 Counsel for the Appellant: The Appellant appeared in person Counsel for the First Respondent: M P Cleary Solicitor for the First Respondent: K Hooper (DLA Phillips Fox) Date of Hearing: 19 May 2008 Date of Judgment: 20 May 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/707.html