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MIGRATION - Application to review decision of Refugee Review Tribunal - whether lack of natural justice - whether failure to consider relevant material or failure to apply the right test.

SZASW v Minister for Immigration [2004] FMCA 780 (12 November 2004)

SZASW v Minister for Immigration [2004] FMCA 780 (12 November 2004)
Last Updated: 26 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASW v MINISTER FOR IMMIGRATION
[2004] FMCA 780




MIGRATION - Application to review decision of Refugee Review Tribunal - whether lack of natural justice - whether failure to consider relevant material or failure to apply the right test.




Migration Act 1958

Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

Randhawa v Minister for Immigration & Local Government & Ethnic Affairs (1994) 52 FCR 437

R v Immigration Appeal Tribunal; Ex parte Jonah [1985] ImmAR 7

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41

Mahon v Air New Zealand Limited (1983) 50 ALR 193

ABT v Bond (1990) 94 ALR 11

R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456

Minister for Immigration & Multicultural Affairs v Rajalingam [1999] FCA 719

Guo Wei Rong v Minister for Immigration & Ethnic Affairs (1996) 64 FCR 151

Minister for Immigration & Ethnic Affairs v Guo Wei Rong (1997) 191 CLR 559

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Abebe v The Commonwealth (1999) 73 ALJR584

Public Service Board of NSW v Osmond (1986) 159 CLR 657

Kioa v West (1985) 159 CLR 550

Kim v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 31

Puerta v Minister for Immigration & Multicultural Affairs [2001] FCA 309

Chan v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379

Minister for Immigration & Ethnic Affairs v Guo (1997) 191 CLR 559

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW [2004] FCAFC 264

Applicant:
SZASW




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1029 of 2003




Delivered on:


12 November 2004




Delivered at:


Sydney




Hearing date:


18 June 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Mr R. Turner




Solicitors for the Applicant:


Tzovaras Legal




Counsel for the Respondent:


Mr S. Lloyd




Solicitors for the Respondent:


Clayton Utz




ORDERS

(1) That the application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1029 of 2003

SZASW



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 19 November 2002 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa. The application was filed in this Court on 10 June 2003.

2. The applicant is a citizen of Peru who arrived in Australia as a visitor in March 2000. She applied for a protection visa on 27 March 2001. The applicant claimed to fear persecution if she returned to Peru. She claimed that she lived in the town of Uchiza in Peru where her parents were farmers. The farmers in the region were intimidated and threatened by the Shining Path (Sendero Luminoso) terrorist group who forced them to grow coca for the production of drugs and who imposed a levy to acquire guns to fight government forces. In 1995, when the applicant was 19, she became an active member of Cambio 90 (the political party associated with former President Fujimori). She was appointed youth co-ordinator in the Uchiza region. Her task was to make the local community aware of the Fujimori government's ideas, projects and objectives to eliminate terrorists and encourage the farmers to grow alternative crops in place of coca.

3. The applicant claimed that in October 1996 she received a death threat in an anonymous letter for supporting the government and making young people aware of its beliefs and objectives. She left Peru for Argentina in October 1996, returning in September 1997 and resuming her duties as youth co-ordinator. She claimed that she experienced continuous threats. On 28 May 1999 a group of terrorists had assassinated some civilians in Uchiza including a close friend of hers who was an active member of the youth party of Uchiza. She claimed that on 15 November 1999 terrorists had broken into her family home in Uchiza in order to kill her. She was not there at the time. Her second oldest brother had been questioned about her whereabouts, bashed and tortured. She had then gone to stay with friends of her family in Lima. They suggested that she leave the country as Lima was not safe either as the Shining Path had a nationwide network in Peru and a very strong presence in Lima as well as in the cities and villages in the highlands and central rainforest region. She had originally intended to stay away from Peru for only a few months but understood from the news and advice from family and friends that the terrorists were still looking for revenge and wanted to assassinate party leaders. The applicant claimed to fear that if she returned to Peru she would be killed by the Shining Path because of her political convictions and beliefs and because she had been actively involved in persuading her community to reject terrorist demands. She said that the Shining Path had party leaders like herself on a blacklist and that Peru did not have the resources to protect everyone threatened by terrorists.

4. The applicant provided supporting documentation in relation to her party membership, police reports on the 1996 death threat and in relation to the assault on her brother in 1999, a medical report relating to her brother's injuries, photographs of graffiti on her family home, a magazine report of the death of her friend on 28 May 1999 and newspaper reports as to the activities of the Shining Path.

5. In her application for review the applicant claimed that the Shining Path had a well-organised network throughout the country, that there was no safe place in Peru for her and that the fact that the security situation in Peru had improved did not mean that terrorists did not exist. She also provided a supporting statement from her brother dated 18 September 2002 stating that the applicant's family were being constantly harassed by terrorists of the Shining Path who reminded them that the applicant was still wanted and that the family had been forced to move from town to town twice in June 2000 and September 2001 to hide from the terrorists but without much success as they had always found them. The applicant's brother said that from time to time they received anonymous letters and late night visits to remind them that the terrorists were still waiting for the applicant.

6. The Tribunal found the applicant to be a credible witness with regard to her personal experiences and that her evidence with regard to the problems she had experienced in her home town was consistent with independent evidence that that region of Peru had been and remained one of the strongholds of the Sendero Luminoso guerilla movement. The Tribunal accepted that the applicant was threatened by the Sendero Luminoso terrorists by reason of her involvement in Cambio 90, that she received a death threat in October 1996 and that in 1999 terrorists broke into her family home and assaulted her brother. The Tribunal also accepted that, as stated in the letter from the applicant's brother, the applicant's family continued to be harassed by the terrorists and the terrorists had intimated that they were still waiting for the applicant on whom they had imposed the death penalty. The Tribunal also accepted that the applicant would continue her political activism if she returned to Peru now or in the reasonably foreseeable future.

7. The Tribunal then stated:

It is relevant in this context that the focus of the definition of a refugee in the Refugees Convention is not upon the protection that an applicant's country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. A person will not be excluded from the definition of a refugee if, notwithstanding the fact that real protection from the persecution which the person fears is available in some other part of the person's country of nationality, it would not be reasonable in all the circumstances to expect the person to relocate to that part of the country: see Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 at 440-443 per Black CJ (with whom Whitlam J agreed). However in the present case the Applicant has not suggested that it would be unreasonable for her to relocate to Lima, for example. She completed her education there in 1995 and she moved there to stay with friends of her family after the attack on her family's home in November 1999. The Applicant says that she would not be safe in Lima because of Sendero Luminoso has a national network in Peru.

8. The Tribunal accepted independent evidence that the Sendero Luminoso had a cell or cells in Lima and the capacity to carry out terrorist acts there but found that the independent evidence indicated that the strength of the Sendero Luminoso had been vastly diminished by arrests and desertions and that it was mainly confined to isolated jungle areas such as the applicant's home area in the upper Huallaga Valley. The Tribunal considered the applicant's claims that the Sendero Luminoso was regrouping and terrorist groups growing stronger in Peru and her friend's claim that Sendero Luminoso still had a national network. However it had regard to 1999 advice from the Department of Foreign Affairs and Trade, which it had put to the applicant in the hearing, that there had been no evidence in recent years to demonstrate that Sendero Luminoso was engaged in carrying out reprisals against individual opponents. It continued that DFAT had said that:

... a human rights organisation based in Lima had told it that a person who had been threatened by Sendero Luminoso would generally be able to find safety by moving to another area of Peru with the stipulation that there could always be an exceptional case. It said that the human rights organisation had advised that, in general, at the present time, it did not consider that persecution by Sendero Luminoso would provide grounds for individuals to have to leave Peru.

9. The Tribunal also noted independent evidence that the strength of the Sendero Luminoso had declined since that advice from an estimate of 1,500 to 2000 armed militants to a present strength of 200 armed militants.

10. The Tribunal accepted that the applicant was well known in the Uchiza area and that she would continue her political activism wherever she moved in Peru. However it did not accept that her case could be regarded as one of the exceptional cases referred to by the human rights organisation quoted by DFAT. It accepted that her political activism had attracted the attention of the Sendero Luminoso in her home area. That area was a stronghold of the Sendero Luminoso and she would face a real threat to her life in her home area. However the Tribunal considered that it would be reasonable to expect the applicant to relocate to some other part of Peru, for example, to Lima. Taking into consideration the DFAT advice, the Tribunal considered that the applicant would be safe from the persecution she feared if she were to relocate to some part of Peru other than her home area. The Tribunal did not accept that if the applicant returned to Peru now or in the reasonably foreseeable, there was a real chance that her life would be threatened or that she would be otherwise persecuted by the Sendera Luminoso terrorist movement by reason of her political opinion provided that she relocated to some part of Peru other than her home area in the Upper Huallaga Valley. The Tribunal was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if she returned to Peru.

11. The applicant filed an amended application in Court claiming that she was denied natural justice, that the Tribunal failed to consider relevant material and failed to carry out its statutory obligation in that it failed to apply the right test. These grounds were elaborated upon in written submissions.

Natural justice

12. The applicant's claim in relation to natural justice is put on several bases. First it is claimed that the Tribunal failed to identify "evidence" it described in the reasons for decision as available to it to which it had had regard. It is claimed that the Tribunal did not make such material available to the applicant and give her a realistic opportunity to comment upon it. It is further contended that there was a lack of natural justice on the basis that the decision was not based on reasonably probative evidence, that proper reasons were not provided and that the Tribunal failed to accord the applicant "the benefit of the doubt".

13. The first aspect of the claim is based on a statement in the Tribunal reasons for decision under the heading "Evidence". The applicant claimed that the Tribunal failed to identify evidence referred to in the following statement:

Besides the Departmental file itself those documents included the UNHCR Handbook, which would not ordinarily be described as "evidence", the US State Department country reports on human rights practices for 1999 and 2000, and a document derived from the Department's CISNET database. All this evidence is available to me and I have had regard to the evidence contained in those documents insofar as it is relevant to the present case.

14. However the claim that the Tribunal failed to identify this evidence is not established. Earlier in the same paragraph the Tribunal stated that in accordance with s418 of the Migration Act 1958 the Tribunal had been given the Department's file relating to the applicant. It continued that, in light of the decision in Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30, it noted "for the avoidance of doubt" that the Departmental file did not contain the documents referred to in the decision under review under the heading "Part B: Evidence Before Me". It stated that besides the Departmental file these documents included the UNHCR Handbook, the two US State Department reports on Human Rights Practices and the database document. In other words the Tribunal identified that the documents it referred to in this part of the reasons were those documents listed in Part B of the decision of the delegate. It is clear from the whole of the paragraph in which these references occur that the Tribunal was making it clear that the information relied upon by the Department was before it. Hence it could not be argued that the applicant was misled into thinking that such material was before the Tribunal if that was not in fact the case in the sense considered in Muin. The applicant was aware of the relevance of this information from the delegate's decision and had an opportunity to address the situation in Peru in submissions to the Tribunal and in the hearing. Indeed in the submission attached to the application for review, the applicant specifically referred to the delegate's view that the security situation in Peru had improved ("based on official reports from America") and went on to provide other information about the situation in Peru. The Tribunal was not obliged to provide the applicant with copies of all the material referred to in Part B of the delegate's decision.

15. One of the items of material from the Part B documents was the DFAT country information report number 385/99 dated 25 October 1999 entitled "Update on Shining Path and MRTA in Peru: DFAT, CIR No. 385/99 25 October 1999". Despite the delegate's description of this document as C1SNET Report "CX38624" it appears that this is in fact a reference to the report of the same date cited by the Tribunal as No. 385/99, "CX38605".

16. Relevantly that report discussed Shining Path, captures of its leaders and its limited activity since 1998 which had been generally confined to isolated jungle areas. It described particular incidents in the Peruvian countryside. It noted the absence of any evidence to demonstrate that Shining Path was "engaged in carrying out reprisals against individual opponents" or that it had "a strategy to target particular individuals" and continued:

The Lima-based human rights organisation with which we consulted told us that they considered that if a person had been threatened by the Shining Path or the MRTA, he or she would be able to find safety by moving to another area of Peru, with the stipulation that there could always be an exceptional case. The human rights organisation also advised us that, in general, at the present time, they did not consider that persecution by the Shining Path or the MRTA would provide grounds for individuals to have to leave Peru.

17. The transcript of the Tribunal hearing tendered by the applicant indicates that in the course of the hearing the Tribunal put to the applicant the following in relation to this report:

The Australian Department of Foreign Affairs and Trade advised in October 1999 that there had been no evidence in recent years to demonstrate that Sendero Luminoso was engaged in carrying out reprisals against individual opponents. It said that a human rights organisation based in Lima had told it that a person who could be threatened by Sendero Luminoso would generally be able to find safety by moving to another area in Peru. It said that the human rights organisation had advised it, that, in general, at that time - that is, in October 1999 - it did not consider that persecution by Sendero Luminoso would provide grounds for an individual to have to leave Peru.

18. The Tribunal then put to the applicant that this, and other independent information in relation to the diminution in the strength of Sendero Luminoso and the fact that it was mainly confined to isolated areas such as the applicant's home area, would suggest that she could perhaps have found her safety by moving somewhere else within Peru. The applicant responded by describing her understanding of the current and future situation in Peru.

19. The rules of natural justice require that an opportunity should ordinarily be given to an applicant to deal with "adverse information that is credible, relevant and significant to the decision to be made" (Kioa v West (1985) 159 CLR 550 at 629 per Brennan J). In this instance the substance of the independent information was put to the applicant. It was not, in the circumstances of this case, necessary for the Tribunal to provide the applicant with a copy of the DFAT report as it brought the gravamen of the report to her attention (including the view of the human rights organisation that a person threatened would "generally" be able to find safety by moving to another area of Peru and that in general persecution by Sendero Luminoso would not provide grounds for an individual to have to leave Peru). It put to her not only the information but also its relevance to the issue of whether she could find safety by relocating elsewhere in Peru outside her home area. The Tribunal brought to her attention the "critical issue" or factor on which the decision was likely to turn so that she had an opportunity to deal with it. (Kioa v West (1985) 159 CLR 550 per Mason J). The applicant had an opportunity to comment on the information and on its application to her particular circumstances. In these circumstances no lack of procedural fairness is established on this basis. Nor is there any breach of s424A as such country information is within 424A(3)(a). (See MIMIA v NAMW [2004] FCAFC 264).

20. The legal representative for the applicant also submitted that there was a lack of a "fair hearing" for several reasons: that the Tribunal failed to accord the applicant the benefit of the doubt, that the decision had to be based on reasonably probative evidence, and that the applicant was entitled to receive proper reasons under s430 of the Act. It was contended that the Tribunal's failure in these respects constituted a denial of natural justice.

21. I have considered the aspects of the submission in relation to natural justice individually and cumulatively. It was contended generally that the rules of natural justice were not met because the applicant was not given "the benefit of the doubt". The applicant relied on what was said by Foster J in the decision of the Full Court of the Federal Court in Guo Wei Rong v MIEA (1996) 64 FCR 151. In the context of addressing the task of assessment of the well-foundedness of a fear and whether there is a real chance of persecution (see Chan Yee Kin v MIEA (1989) 169 CLR 379 per Jason CJ at 389, Dawson J at 398, Toohey J at 407 and McHugh J at 429) his Honour stated first at [20] that "Mere doubts or concerns as to the applicant's credibility would not be sufficient to exclude the possibility" (that he or she was correctly asserting the existence of Fact A). His Honour went on to refer to other cases about the assessment of a real chance of persecution and expressed the opinion (at [24]) that a decision-maker in this area must bear in mind what is said in the United Nations Handbook on Procedure and Criteria for Determining Refugee Status as follows:

Thus, while the burden of proof in principle rests on the applicant, the duty to ascertain and evaluate all the relevant facts is shared between the applicant and the examiner. Indeed, in some cases, it may be for the examiner to use all the means at his disposal to produce the necessary evidence in support of the application. Even such independent research may not, however, always be successful and there may also be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

22. However, Foster J was not considering the ambit of the rules of natural justice. Rather he was describing what should be done by the Tribunal in fact-finding, in particular in determining whether the applicant's account of what had happened to him or her was credible.

23. The decision of the Full Court in Guo Wei Rong v MIEA (1996) 64 FCR 151 was reversed on appeal by the High Court (in MIEA v Guo Wei Rong (1997) 191 CLR 559) which considered the test to be applied in determining whether an applicant had a real chance of being persecuted if he returned to his country of origin. More recently, in MIMA v Rajalingam [1999] FCA 719, the Full Court clarified the manner in which a question of doubt would arise in a Tribunal's fact-finding process, that is in determining whether a Tribunal should have considered the possibility that its findings of fact might not have been correct. As Sackville J stated at [67]:

If a fair reading of the reasons as a whole shows that the Tribunal itself had `no real doubt' (to use the language of Guo) that claimed events had not occurred, there is no warrant for holding that it should have considered the possibility that its findings were wrong ... Only if a fair reading of the reasons allows the conclusion that the RRT had a real doubt that its findings on material questions of fact were correct, might error be revealed by the RRT's failure to take account of the possibility that the alleged events might have occurred (or the possibility that an event said not to have occurred did not in fact occur. If the fair reading allows of such a conclusion, the failure to consider the possibilities might demonstrate that the RRT had not undertaken the required speculation about the chances of future persecution.

24. In this instance the Tribunal accepted what the applicant said had happened to her - finding her a credible witness. No question of doubt arose about whether alleged events had occurred (or, indeed, about the credibility of the applicant). The only thing not accepted was her analysis of the situation in Peru and the future risks she faced in Lima. The Tribunal conclusions in this respect were not based on the applicant's credibility. The Tribunal did not doubt her claimed experiences or that she feared harm in Lima. Rather it had to consider whether she would be safe in Lima or elsewhere in Peru and it based its analysis in this respect on independent country information.

25. Even on the view expressed by Foster J in Guo, this analysis was not an analysis of the factual aspects of what the applicant had experienced and a "benefit of the doubt" notion has no application. No other authority was cited to support the proposition that an aspect of the rules of natural justice is that an applicant must be given the benefit of the doubt. I am not satisfied that there was any lack of procedural fairness in the manner contended.

26. The second aspect of this claim that the applicant was denied a "fair hearing" was the submission that natural justice required that the Tribunal should base its decision upon reasonably probative evidence and that it failed to do so. It was contended that the only evidence submitted by the applicant and her brother indicated that it was unreasonable for her to relocate to Lima. The applicant argued that while the Tribunal stated that it accepted her evidence, it nonetheless concluded that she would be safe if she were to relocate to Lima contrary to her evidence. It was said that in these circumstances there was no reasonably probative evidence upon which to base the Tribunal's finding that the applicant could reasonably relocate to Lima. In support of this proposition the applicant relied on the decision in Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 per Deane J at 67 where his Honour stated:

I respectfully agree with the conclusion of Diplock LJ [in R v Deputy Industrial Injuries Commissioner; Ex parte Moore [1965] 1 QB 456] that it is an ordinary requirement of natural justice that a person bound to act judicially `base his decision' upon material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined.

27. Deane J went on to suggest that implicit in Diplock LJ's conclusion and in the well-established principle that a decision of a statutory tribunal must ordinarily be based on evidence which is reasonably capable of sustaining it were:

...the requirements that findings of material fact of a statutory tribunal must ordinarily be based on logically probative material and the requirement that the actual decision of such a tribunal must, when relevant questions of fact are in issue, ordinarily be based upon such findings of material fact and not on mere suspicion or speculation. (at 67-68) (Also see Mahon v Air New Zealand Ltd (1983) 50 ALR 193)

28. However such an approach has not otherwise been adopted in the Australian courts. (Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 per Mason CJ at 357). Moreover, while the Tribunal did accept the applicant's evidence about what had happened to her in Peru while she was living there, there was other evidence before the Tribunal consisting of the independent country information on which it based its findings that the applicant could reasonably relocate in the future, as well as her own evidence that she had gone to Lima in the past but that she had been advised Lima was not safe for her. She was asked in the hearing if she had any problems while in Lima. Her sole indication of problems was that Lima was not considered to be a safe place for her because of the national activities of the Shining Path. The absence of actual problems when she lived in Lima was in itself part of the evidence before the Tribunal. It was open to the Tribunal to prefer this evidence and independent evidence about the situation in Peru to the views of the applicant. This was not inconsistent with its acceptance of the applicant's account of what had happened to her in the past. It cannot be said that there was an absence of probative evidence in the sense referred to in Pochi or that the reasoning supportive of the Tribunal's findings in relation to relocation was logically contradictory. As Counsel for the respondent pointed out, the applicant did not contend that a ground of "no evidence" (see MIMIA v SGLB [2004] HCA 32 at [39]-[41]) was established.

29. In substance the applicant's concern is with the nature of and weight given to the independent evidence relied upon by the Tribunal in relation to the issue of relocation. It was contended that the evidence from the Human Rights organisation referred to in the DFAT advice was hearsay and should not have been given the weight that it was given. However questions of the weight to be attributed to particular items of evidence are matters for the Tribunal (see Abebe v The Commonwealth (1999) 73 ALJR 584 at [197]) and the applicant's complaint that this evidence was hearsay and that in order to fairly assess whether the applicant could reasonably relocate something more than hearsay was required (such as first hand evidence from a human rights group) does not establish a jurisdictional error. The rules of evidence do not apply to the Tribunal (s420 of the Migration Act 1958).

30. The third aspect of the contention that there was a lack of procedural fairness was a suggestion that the applicant was entitled to receive proper reasons under s430 of the Act and that this had not occurred. There is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions (Public Service Board of NSW v Osmond (1986) 159 CLR 657 per Gibbs CJ), albeit there is an obligation to provide reasons under s430 of the Act. In this instance reasons were given which meet the s430(1)(c) and (d) requirements to refer to the Tribunal findings on any material questions of fact and to the evidence or other material on which such findings were based.

31. The Tribunal did not, as was submitted, ignore the evidence it had accepted of the assault on the applicant's brother in Uchiza. It accepted that this had occurred (and this is consistent with its acceptance that the applicant would face a real threat to her life in her home area). It also accepted that the family had moved from town to town twice as claimed. Indeed it expressly accepted that the family continued to be harassed by the terrorists who had intimated they were waiting for the applicant on whom they had imposed the death penalty. The Tribunal was not required to state evidence upon which its findings were not based, but the independent evidence referred to in the applicant's submission as supportive of her claims (such as that the Shining Path was not a spent force, that it was involved in narcotics activities and was a suspect in a car bomb attack near the US Embassy in Lima) was not, in any event, inconsistent with the Tribunal's express acceptance that the Shining Path continued to exist, particularly in the applicant's home area and had a cell or cells in Lima and the capacity to carry out terrorist acts there. No inference can be drawn that the Tribunal did not have regard to these matters. The Tribunal did give reasons for its findings on relocation, accepting that the applicant would face a real threat to her life in her home area, but having regard to the fact that that area was a stronghold of the Shining Path, the advice of DFAT in relation to persons threatened by Shining Path finding safety by relocating to another area of Peru and also to the subsequent decline in the strength of the movement.

32. In oral submissions Counsel for the applicant also contended that the Tribunal erred in failing to tell the applicant which human rights organisation gave the information to DFAT, in putting the information to the applicant at the hearing, and in not putting positive aspects of the advice to her. It is not disputed that the DFAT advice did not identify the organisation by name and there is nothing to suggest that the Tribunal had any information about the unnamed organisation beyond that contained in the DFAT report. As discussed above the substance of the adverse parts of the DFAT advice was put to the applicant at the hearing. There was no obligation on the Tribunal to provide a copy of the report to the applicant. It met its obligation to inform the applicant of the critical issues; it gave her an opportunity to comment on relevant adverse aspects of the report at the hearing. The Tribunal was not obliged to put "positive" elements of the report to the applicant in the manner contended either under s424A or its procedural fairness obligations. It sufficiently disclosed that the advice was said to apply "generally" and did not have to refer expressly to the report's reference to exceptional cases. The applicant had the opportunity to comment on the application of this "general" view to her and the Tribunal expressly considered whether she was an exceptional case. Nor was it obliged to put the information to her in writing or in some manner other than at the hearing. There is no suggestion, nor could it be suggested, that there was a failure by the Tribunal to comply with s424A of the Act in relation to the independent information which clearly comes within the exception in subsection 424A(3).

33. The applicant also took issue generally with the Tribunal's approach to the issue of relocation as part of the contention that she did not get a fair hearing. The transcript of the hearing is before the Court. From that it is apparent that the Tribunal asked the applicant if she had had any problems when she stayed in Lima and then put to her the evidence it had which it considered supported an inference that there was safety in Peru outside the Upper Huallaga Valley. It specifically put to her that "what that information would suggest is that you could perhaps have found your safety by moving elsewhere in Peru". She was given an opportunity to respond and the friend who accompanied her was also given an opportunity to address the Tribunal.

34. The Tribunal has an obligation under s425 of the Migration Act to invite an applicant to appear before it to give evidence and present arguments relating to the issues arising in relation to the decision under review and, as discussed above, the common law principles of natural justice also oblige the Tribunal to put critical issues to the applicant (see Kioa v West (1985) 159 CLR 550). It has not been established that there was a lack of procedural fairness in the manner in which the hearing was conducted or in the Tribunal's treatment of the independent information. The Tribunal met its obligation to put the gravamen of adverse information to the applicant for comment. There is no natural justice obligation on an administrative decision-maker to put to an applicant the substance or copies of all things that might potentially benefit him or her. It is for the applicant to make out her case. The Tribunal considered the material put forward by the applicant. It accepted that Sendero Luminoso continued to exist and also considered the "positive" part of the DFAT report in addressing the continued existence and activity of the movement and the issue of whether the applicant might be an exception to the general proposition that a person who had been threatened by Sendero Luminoso would generally be able to find safety by moving to another area of Peru.

35. None of these contentions, either alone or in combination, establish a lack of procedural fairness or any other error amounting to jurisdictional error (see MIMIA v SGLB [2004] HCA 32 at [33] per Gummow and Hayne JJ).

Failure to consider relevant material

36. The applicant contended that the Tribunal failed to consider relevant material or to ask the right question. First, it was submitted that the Tribunal, having found that the influence of the Shining Path guerrillas had diminished, failed to inquire as to or to identify the current level of activity of Shining Path and whether that level was sufficient to ground a claim for persecution. It was also claimed that the Tribunal failed to identify the chance that the applicant would be persecuted and assess whether that was a real chance. However the Tribunal considered evidence about the recent activities of the Shining Path as set out in an extract from independent information. This evidence was addressed in the Tribunal findings about the recent activities and strength of the movement. In particular the Tribunal accepted that the organisation had a cell or cells in Lima and that it had the capacity to carry out terrorist attacks there such as the March 2002 car bomb attack near the US Embassy. Further in accepting that the evidence indicated that its strength had been vastly diminished by arrests and desertions and that it was mainly confined to isolated jungle areas such as the applicant's home area in the Upper Huallaga Valley, the Tribunal referred to the sources of information relied on and expressly identified the current and past estimated strength of the group from such information noting that the 1999 DFAT advice referred to estimates of the strength of the movement in 1999 at 1,500 to 2,000 and the most recent (2002) US State Department Report estimated its strength at 200 armed militants. The Tribunal findings were consistent with the evidence before it. It not only addressed the current level of activity of the movement in this way and by reference to evidence of its terrorist capability, it also addressed and accepted independent evidence that the organisation was mainly confined to isolated jungle areas such as the applicant's home area in the Upper Huallaga Valley.

37. The Tribunal also addressed the applicant's claims that the organisation was regrouping and had a national network, but gave weight to the absence of evidence of reprisals against individual opponents in recent years, the decline in its strength and the advice of the human rights organisation. It was in this context that the Tribunal considered, on all the evidence, whether there was a real chance that the applicant would be persecuted by the movement and whether she had a well-founded fear of persecution. The Tribunal did not fail to consider the relevant considerations in the sense of integers of the applicant's claim (see Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244). Nor did it fail to ask the right question. The weight it gave to particular items of evidence was a matter for the Tribunal. Its findings were open to it on the material before it.

38. Nor did it err, as the applicant contended, in failing to consider whether the applicant's involvement as a youth leader within the Cambio 90 group amounted to "exceptional circumstances" as set out in the country information. The Tribunal expressly considered whether the applicant's case could be regarded as one of the exceptional cases on which a person threatened by Sendero Luminoso would not be able to find safety by moving to another area of Peru, referred to by the human rights organisation. The Tribunal's obligation is to have regard to all of the integers of the applicant's claim in considering whether the applicant meets the criteria for the grant of a protection visa, in particular the criterion that the applicant is a person to who Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. In its outline of the applicant's claims the Tribunal referred to her claim to be a youth co-ordinator as well as an active member of Cambio 90 and to her tasks in that role. It referred to the letter from Cambio 90 which she produced relating to her appointment as youth co-ordinator in Uchiza in 1995. The Tribunal found the applicant to be a credible witness with regard to her personal experiences and accepted that she was threatened by Sendero Luminoso terrorists by reason of her involvement in Cambio 90. All of the applicant's claims in relation to her past activities in Peru were accepted by the Tribunal. In this sense the Tribunal had regard to her role as a youth leader as well as to the other aspects of what it described as her past political activism (which had been confined to the Uchiza area) in considering the reasonableness of relocation (and in that context whether her case could be regarded as exceptional). Indeed on the basis of these claims it accepted that she would face a real threat to her life in her home area.

39. The applicant also contended that the Tribunal failed to take into account the evidence it had accepted of the quite serious assault on her brother. However reading the Tribunal reasons for decision fairly and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259) it is clear that the Tribunal accepted and took into account this claim as well as the claim that her family continued to be harassed by the terrorists who had intimated that they were still waiting for the applicant on whom they had imposed the death penalty. Implicit in its acceptance of all the applicant's claims about factual events is an acceptance of the claim about the assault on her brother as well as the claim by her brother, set out in the reasons, that their family had been forced to move from town to town twice (in June 2000 and September 2001) to hide from the terrorists but without much success. It is notable however, that there was no suggestion by the brother, who wrote to the Tribunal in September 2002 from Uchiza (the area in which the applicant had been active), that the family had left their home region. Moreover the assault on the applicant's brother happened in Uchiza (the place where the Tribunal accepted that the applicant would have a well-founded fear of harm). The treatment of the claims about and by the applicant's brother does not establish jurisdictional error.

40. The Tribunal also accepted that the applicant would continue her political activism wherever she moved in Peru but was satisfied that she would be safe from the feared persecution (or a threat to her life) if she relocated to some part of Peru other than her home area which was a stronghold of the Sendero Luminoso. Again no jurisdictional error is established in this respect.

41. Moreover the Tribunal treatment of the relocation issue does not involve a failure to apply the correct test such as to constitute jurisdictional error (see Kim v MIMIA [2004] FCA 31). The Tribunal was obliged to make a finding as to whether the applicant had a well-founded fear of persecution. It made the assessment of the prospect of harm required by the legislation in considering the evidence before it (including the view of the human rights organisation and the possibility that the applicant's case was exceptional such that she might be at risk despite relocating) in concluding that it did not accept that if the applicant returned to Peru now or in the reasonably foreseeable future there was a real chance that her life would be threatened or that she would be otherwise persecuted by the Sendero Luminoso terrorist movement by reason of her political opinion provided that she relocated to some part of Peru other than her home area in the Upper Huallaga Valley. The Tribunal asked itself the right question. In this respect I note that in Puerta v MIMA [2001] FCA 309 at [9] the Full Court pointed out that "Any analysis or discussion of whether a person has a well-founded fear is likely to involve the use of words other than the words of the Convention" (also see Chan v MIEA (1990) 169 CLR 379 per Mason CJ at 389, Dawson J at 398, Toohey J at 407 and McHugh J at 429 and MIEA v Guo (1997) 191 CLR 559 at 572).

42. The principles applicable to a Tribunal consideration of relocation were considered by the Full Court of the Federal Court in Randhawa v MILGEA (1994) 52 FCR 437. As was appreciated by the Tribunal member in this instance, the focus of the definition of refugee in the Refugees' Convention is not upon the protection that an applicant's country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. In Randhawa Black CJ indicated, at 442, that it is necessary to ask "not merely whether the [applicant] could relocate to another area of [the country of nationality] but whether he could reasonably be expected to do so". As his Honour said:

This further question 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.

43. Black CJ went on to suggest that the "range of realities that may need to be considered on the issue of the reasonableness of relocation extends beyond physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality" and referred to circumstances such as those present in R v Immigration Appeal Tribunal; Ex parte Jonah [1985] ImmAR 7 and the need to consider barriers that prevent the applicant from reaching internal safety whether financial, logistic or otherwise. Black CJ also stated, at 443, that while it would "ordinarily be quite wrong for a decision-maker to take the general approach that there must be a safe haven elsewhere without giving the issue more specific attention" the extent of the task is largely determined by the case sought to be made by an applicant. In other words the Tribunal must consider impediments raised by the applicant and the material before it. Whitlam J, at 453, emphasised that what Black CJ said about a decision-maker's task being largely determined by the case sought to be made out by an applicant applied to all aspects of the case "both personal circumstances and what might be called `country conditions'". The Tribunal properly considered the issue of relocation as required by Randhawa. It considered `barriers' to safety based on the evidence of the applicant, her views and the independent evidence before it. The applicant's disagreement with its conclusion in that respect does not establish jurisdictional error.

44. These findings mean that it is unnecessary to consider the respondent's submission that if a jurisdictional error is established relief should be refused because of unexplained delay by the applicant in commencing these proceedings.

45. No jurisdictional error has been established and the application must be dismissed.

I certify that the preceding forty-five (45) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 12 November 2004
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