Woldie, Solomon v Minister for Immigration & Multicultural Affairs [1998] FCA 888

FEDERAL COURT OF AUSTRALIA IMMIGRATION LAW - appeal - refugee status - whether well-founded fear of persecution in relation to country of nationality as a whole - "internal protection" principle of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 - reasonableness of relocation to another part of the country of nationality - circumstances in which reasonableness of relocation will be a specific issue to be specifically addressed by the Court or Tribunal - whether implication of reasonableness of relocation in facts as found. Migration Act 1958 (Cth) - ss 416, 416(c), 416(d), 430, 475(1), 476(1)(e) Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 - considered and followed

solomon woldie v minister for immigration and multicultural AFFAIRS WAG 159 of 1997

FOSTER, LEE & R.D. NICHOLSON JJ 16 JULY 1998 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WaG 159 of 1997

BETWEEN: solomon woldie

Appellant

AND: minister for immigration and multicultural AFFAIRS

Respondent

JUDGES: FOSTER, LEE & R.D. NICHOLSON JJ

DATE OF ORDER: 16 JULY 1998

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. The appeal be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WaG 159 of 1997

BETWEEN: solomon woldie

Appellant

AND: minister for immigration and multicultural AFFAIRS

Respondent

JUDGES: FOSTER, LEE & R.D. NICHOLSON JJ

DATE: 16 JULY 1998

PLACE: PERTH

REASONS FOR JUDGMENT (Extempore) This is an appeal from a decision of French J given on 26 November 1997 dismissing the appellant's application for an order of review of a decision of the Refugee Review Tribunal ("the Tribunal") given on 19 August 1996. The Tribunal had affirmed the decision of the respondent's delegate to refuse the appellant's application for a protection visa, on the ground that he did not have the required refugee status. The appellant is an Ethiopian citizen born in Ethiopia on 10 June 1960. He is from the province of Arsi and is a member of the Amhara tribe which inhabits that province. He left Ethiopia in 1989 because, as he claimed, he feared for his safety and travelled to New Zealand on an Ethiopian passport. He said that he obtained the passport through official corruption and that it was provided purportedly to enable him to undertake religious studies. He remained in New Zealand where he undertook such studies until early 1992, when he travelled to Australia under a student visa to continue his studies. Since arriving in Australia on 25 February 1992 the appellant has made two applications for a protection visa pursuant to the Migration Act 1958 (Cth) ("the Act"). The first application lodged on 26 February 1993 was refused by the respondent's delegate on 14 July 1993. That refusal was the subject of review by the Tribunal and was upheld in reasons given on 17 June 1994. The second application was lodged on 8 June 1995 and was refused by the respondent's delegate on 1 November 1995. An application for review of the delegate's decision by the Tribunal was refused on 19 August 1996. An application for an order of review pursuant to s 476 of the Act was filed in the Federal Court on 12 September 1996 and resulted in the hearing before French J and his Honour's judgment on 26 November 1997. By his notice of appeal filed on 17 December 1997 the appellant seeks orders, inter alia, that the decision under review be quashed and that the matter be remitted to the Tribunal for determination according to law together with orders for costs. It is necessary briefly to consider the reasons of the Tribunal for refusing the appellant's application. The Tribunal commenced by setting out the law relating to refugee status, including the definition of "refugee" from the Convention relating to the Status of Refugees (1951, Geneva) as amended by the Protocol relating to the Status of Refugees (1967, New York). There is no need to set out the definition again in these reasons. The Tribunal referred to the fact that s 416 of the Act applied to the proceedings, as there had been a previous application to the Tribunal by the appellant in relation to a refusal of a protection visa, which had been the subject of determination by the Tribunal. In those circumstances it was not required, in considering the fresh application, "to consider any information considered in the earlier application" [s 416(c)] and might "have regard to and take to be correct, any decision that the Tribunal…made about or because of that information" [s 416(d)]. It stated its intention "only to consider new claims and information". The Tribunal heard oral testimony and took into account information from the appellant including extensive country information, together with other country information and materials both from the respondent and from the Tribunal files. The Tribunal set out the previous claims which had been determined in the earlier hearing, which determinations had not been the subject of appeal. They are lengthy. They are set out again in the judgment of French J and there is no need to set them out once more in these reasons. The applicant asserted his fear of persecution related to his membership of the Amhara tribal group which, in the Arsi region of Ethiopia where he had lived with his parents, was in violent conflict with the Oromo tribe. He feared that if he returned to that area he would be in physical danger and subjected to persecutory activity. The Tribunal referred to the previous decision which had dealt with this matter in the following terms:- "I accept that there is presently serious Amhara/Oromo tribal conflict in Arsi where the applicant's parents live and that the applicant would face physical danger if he were forced to return to that region. It is clear, however, that the applicant has lived in Addis Ababa for considerable periods of time in the past and, indeed, his brother asserts in the letter filed that he (i.e. the brother) has been taking refuge in Addis Ababa for the six months prior to writing the letter. I am satisfied that the applicant could live safely in Addis Ababa upon return at this time or within the reasonably foreseeable future." In the second proceedings before the Tribunal, the appellant, in relation to this previous finding, indicated that the letter referred to had come from a friend, rather than a blood brother. This was accepted by the Tribunal but, as it pointed out, this did not alter the fact that the appellant had previously lived safely in Addis Ababa. The Tribunal considered additional material that had been provided from Amnesty International and the Commonwealth Department of Foreign Affairs and Trade. It was satisfied that there was no trouble in Addis Ababa and that, as the appellant did not believe in violence, he would not involve himself in any group that violently opposed the government. He could avoid tribal conflict in the Arsi region by living elsewhere in Ethiopia such as in Addis Ababa. He was not therefore in need of international protection as a refugee as he did not have a well-founded fear of persecution in relation to Ethiopia as a whole. The Tribunal was also satisfied on material before it that there was in Ethiopia no systematic persecution directed against the Amharic people, with the result that the appellant did not face a real chance of persecution because of his membership of that tribal grouping. Other matters, apparently of more recent origin, were raised by the appellant but it was the opinion of the Tribunal that these did not affect its decision. They were not relied upon before French J and need not be referred to here. The Tribunal's final conclusion was expressed as follows:- "[t]he applicant does not face a real chance of persecution should he return to Ethiopia on the basis of either the applicant's past political association, his tribal grouping, his religion or some combination of these. The Tribunal is satisfied that the applicant is not a refugee." Consequently the refusal of the grant of a protection visa was affirmed. We turn then to the case before French J. The matter came to his Honour as an application for review pursuant to s 476(1) of the Act, the Tribunal's decision being a judicially reviewable decision under s 475(1). The grounds upon which such an appeal can be brought are limited. They are set out in s 476(1) which it is not necessary to refer to in full. Reliance was placed upon the two ways in which relevant error of law can occur in a Tribunal decision pursuant to s 476(1)(e). The grounds of appeal asserted that in a number of ways the Tribunal had erred in law, both by incorrectly applying the law to the facts or by incorrectly interpreting the applicable law. It is unnecessary to set the grounds out in full as it appears that only two grounds were argued before his Honour, both unsuccessfully. Of these grounds only one has been argued before us. Before turning to the submissions on this appeal it is necessary to observe how the matter was dealt with by French J. It was submitted to his Honour that the Tribunal had fallen into error when concluding that the appellant could not have a well-founded fear of persecution in relation to Ethiopia as a whole because he could reside in Addis Ababa. It was put that the Tribunal had not made a finding on a vital matter, namely, whether it was reasonable that the appellant should "relocate" to Addis Ababa. The mere finding that he could do so was not sufficient. Reliance was placed upon the decision of the Full Court of this court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. His Honour stated the applicant's submission as follows:- "The Tribunal, however, had found that he did not have a well-founded fear of persecution relating to Ethiopia as a whole because he could avoid tribal conflict in the Arsi region by living elsewhere in Ethiopia, such as in Addis Ababa. Woldie accepted that if a person could live safely in another part of the country he might not necessarily be a refugee - Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265. He argued, however, that the mere fact that a person might be able to live in another part of the country was not sufficient, it must be reasonable for the person to live in the other part of the country. The Tribunal by concluding that he could live elsewhere in Ethiopia without considering whether it would be reasonable to expect him to relocate, had erred in law. It had not correctly identified the real issue in the matter." His Honour stated that he felt this was really no more than an attack on the merits of the Tribunal's finding in this regard. He said that on the assumption that the appellant:- "might be exposed to the dangers of inter-tribal conflict in the Province of Arsi, there seems to be little doubt that he could locate himself away from danger by residing in Addis Adaba". He then referred to Randhawa and "the internal protection" principle considered in that case in passages to which we shall make reference later. He accepted that "reasonableness" of relocation could be an issue in determining whether a person could avoid persecution in one part of a country by moving to another part of it. He said in relation to the Tribunal's treatment of the matter:- "The Tribunal was not required to engage in a formulaic posing of the question whether it was reasonable for Woldie to relocate. It was sufficient that it addressed the relevant issues. In my opinion it did that. Woldie had chosen to live in Addis Ababa previously and had been able to do so. In the absence of any suggestion of inaccessibility all relevant factors converge to support the proposition which obviously underpinned the Tribunal's finding about the possibility of relocation to Addis Ababa namely that it was a reasonable option." It is submitted by counsel for the appellant that this passage contains an error of law. It is put that his Honour should, on the authority of Randhawa, have held that there had been a failure on the part of the Tribunal to address and make a finding on a critical issue namely the reasonableness of the appellant's taking up of residence in Addis Ababa. It was not sufficient that it impliedly made such a finding. It should have, contrary to what his Honour said, formulated the issue, addressed it separately and made it the subject of a specific finding. This was said to be the result, as a matter of law, of Randhawa. It is necessary then to consider that case and the passage in the judgment that was relied on. The appellant in Randhawa was a Sikh from the Punjab region of India who applied in Australia for refugee status on the basis of well-founded fear of persecution in the Punjab. His application was rejected on the basis that he could reasonably be expected to relocate to another part of India. It was held on appeal in the Full Court of this Court that a person could be ineligible for refugee status if, although in justifiable fear of persecution in one part of a country, he could avoid persecution by moving to another part of that country. However, if it were not reasonable in the circumstances for the person so to move, then it could be said that his fear of persecution in relation to the country as a whole was well-founded. The main passage relied upon comes from the judgment of Black CJ (at 442-443) and reads as follows:- "… if, in all the circumstances, it would be reasonable to expect someone to return to another part of the country of nationality then that is a matter that can properly found an adverse decision on a claim for refugee status. In the present case the delegate correctly asked whether the appellant's fear was well-founded in relation to his country of nationality, not simply the region in which he lived. Given the humanitarian aims of the Convention this question was not to be approached in a narrow way and in her further analysis the delegate correctly went on to ask not merely whether the applicant could relocate to another area of India but whether he could reasonably be expected to do so. 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. In the context of refugee law the practical realities facing a person who claims to be a refugee must be carefully considered. Moreover, the range of the realities that may need to be considered on the issue of the reasonableness of relocation extends beyond the physical or financial barriers preventing an applicant for refugee status from reaching safety within the country of nationality … … If it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of a country from which he or she has fled to relocate to another part of the country of nationality it may be said that, in the relevant sense, the person's fear of persecution in relation to that country as a whole is well-founded. … In the present case, the delegate recognised the width of the inquiry required by considering whether the appellant's Sikh culture prevented him from relocating in India. Once the question of relocation had been raised for the delegate's consideration she was of course obliged to give that aspect of the matter proper consideration. …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." See also per Beaumont J at page 452-453. A fair reading of this passage indicates, in our view, that the appellant's counsel seeks to derive from it more than it can reasonably bear. The key words are: "…but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant". These words indicate, as, in our view, does the whole passage, that reasonableness of relocation can become a specific issue to be specifically addressed if it becomes so in the course of the proceedings. This may be because it is expressly raised by an applicant by his putting specific arguments against his being required to relocate, for instance, in the nature of specific objections to the place of relocation, problems involved in going to it, financial difficulties associated with travelling to or residing in the new place and the like. In the absence of the issue arising in this way, it is, in our opinion, unnecessary and not enjoined by Randhawa that a decision-maker consider reasonableness as a discrete issue and make it the subject of a separate finding. Obviously, even without the matter being separately addressed, a decision maker could not properly find that an applicant should avoid persecution by moving to a plainly unsuitable location in his home country, but no separate formulated issue is required for such a determination to be made. It should be added that such a consideration obviously does not arise in this case because the contemplated location is the capital city of Ethiopia, a locality which has been found by the Tribunal to be safe from the persecutory activities feared by the applicant. It was but faintly argued by counsel for the appellant that even if Randhawa does not require, as a matter of law, that the decision maker should have considered the reasonableness of relocation as a separate issue, it, nevertheless, arose for determination on the facts of this case. Although the appellant, it was accepted, at no time asserted that it was unreasonable for him to be required to reside in Addis Ababa, there was nevertheless some evidence that it would not be a suitably safe place for him. The failure to deal with this evidence in the reasons of the Tribunal constituted error. The material is to be found in a document presented to the Tribunal as part of the material provided by the appellant. It comes from the Catholic Migrant Centre. The passage relied upon in the document reads as follows:- "Even though the Delegate did not specifically spell it out it is implicit in the Delegate's statement that internal flight was an option open to Mr Wolde [sic]. We, however wish to point out that internal flight would not be a solution under this ground as kinship is an immutable characteristic with the result that if a race of which the applicant is a member is being persecuted purported geographic relocation would hardly be a solution." We reject this submission. It is sufficiently answered by the Tribunal's finding, already referred to, that there was no systematic persecution in Ethiopia of the Amharic tribal group. One other matter was raised by the appellant's counsel. It was put that there had been a failure on the part of the Tribunal to comply with s 430 of the Act which requires the giving of reasons for decisions by the Tribunal. This, as we understand it, was not put as a separate ground of appeal. It had not been raised before French J, nor had it been included as a ground of appeal to this court. It was relied upon in this way. The Tribunal was obliged to give reasons on all material questions. It had failed expressly to mention the issue of reasonableness as a separate matter. Consequently it was to be inferred that it had not considered the matter at all. We are satisfied that this submission should be rejected. We are satisfied that French J was correct when he said in the passage quoted above that he was satisfied that the Tribunal had addressed all relevant issues and that "[i]n the absence of any suggestion of inaccessibility all relevant factors converged to support the proposition which obviously underpinned the Tribunal's finding about the possibility of relocation to Addis Ababa, namely that it was a reasonable option". Indeed the Tribunal's reasons clearly set out the factors from which the implication of reasonableness arose. The relevant passages have already been cited. Counsel for the appellant took us to other authorities. However, they were, in our view, of only peripheral relevance to his main submission which was based on Randhawa, which submission, for the reasons we have given, we reject. We therefore dismiss the appeal with costs. I certify that this and the preceding eight (8) pages are a true copy of the Reasons for Judgment herein of the Court.