Case: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
Outcome: applied
The Federal Magistrate found that the Tribunal's conclusion as to relocation was open to it, and that in reaching this conclusion the Tribunal correctly applied the test for relocation: Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. 17 Before discussing the submissions made on appeal, I should mention one puzzling aspect of the Tribunal's reasons, namely the inconsistency between dates of various incidents described by the appellant. The Tribunal records that the appellant gave evidence that he was arrested twice in 2001 (in June and July) and that he left Egypt some four months after the second arrest, that is in late October 2001; however the material in the appeal book shows, and the Tribunal's opening paragraph records, that the appellant arrived in Australia on 25 October 2002 and that his application for a protection visa was lodged on 9 January 2003. There is no suggestion that the appellant came other than directly to Australia. Although the Tribunal mentioned that a psychologist who examined the appellant referred to the appellant's account as being one of detention and torture in 2002 the Tribunal did not dwell on this point and, as mentioned above, the Tribunal specifically stated that it was relying only on the account that the appellant gave at the hearing; see [5] above. 18 The appellant's primary submission in this Court is that the Federal Magistrate erred in failing to find that the Tribunal misapplied the test for relocation, and in doing so made a jurisdictional error. I agree with this submission and, in general, with the submissions made by counsel for the appellant, Mr O'Donnell. 21 It must be emphasised here that it is the prospect of return to the applicant's own country not to a particular part or parts of that country that must be considered; Randhawa at 440. Provided that it is reasonably practicable for the person claiming refugee status to relocate with safety to another part of that country then it cannot be said that the person has a well-founded fear of persecution in that country. In such a case a finding that relocation meets these criteria will be a (or the) critical element in the determination of the application. Irrespective of the Tribunal's scepticism about aspects of the appellant's claims, is clear that the Tribunal's view as to the appellant's ability to relocate within Egypt with comparative ease was a critical element in its decision that the appellant did not have a well-founded fear of persecution. 22 The Tribunal's consideration of the relocation issue logically raised three separate questions: (a) If the appellant relocated elsewhere in Egypt, would he face persecution from those who had targeted him previously? (b) Had the appellant's persistent campaigning against religious inequalities given him a national profile, such that others in Egypt would persecute him even if he relocated ? (c) If the appellant relocated elsewhere in Egypt, would he continue to engage in campaigns against religious inequality? If so, would this conduct lead others in Egypt (or even just in the area to which he relocated) to persecute him? 23 The Tribunal clearly addressed questions 1 and 2 above and answered them adversely to the appellant. Counsel for the Minister submitted that the third question was effectively answered by the Tribunal's statement: 'He did not suggest that he would attract new harassment by continuing to engage in the same kinds of activity as he had in the past.' 27 The Minister did not accept that the Tribunal had overlooked an essential issue and submitted that the scope of the Tribunal's obligation to consider future persecution of an applicant if relocated is determined by the appellant's claims and the material before the Tribunal. The Minister relied upon the judgment of Black CJ in Randhawa at 443: 'I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant .' (emphasis added) 28 In the Minister's submissions much was made of the fact that the relevant conduct of the appellant consisted of letter writing and the Tribunal could not be expected to investigate the possibility of the appellant facing persecution for his letter writing, which is not an activity that one would expect to provoke persecution. This is, with respect, a somewhat disingenuous submission. The appellant was not engaged in writing social letters; the Tribunal described him as embarking on 'a campaign of letter writing' which included letters of complaint to government departments. 29 Here, the questions of whether the appellant would continue his campaign of letter-writing in the future, and whether this conduct would lead to persecution elsewhere in Egypt, necessarily arose on the material before the Tribunal. It was the appellant's letter writing that the Tribunal accepted may have led to his unlawful detention by Giza police for three days. The Tribunal accepted that the appellant may have been beaten during this detention. It is no answer to say that letter writing per se is not an activity that tends to provoke violence the Tribunal had accepted that this was a possibility.