FEDERAL MAGISTRATES COURT OF AUSTRALIA
MZYFQ v MINISTER FOR IMMIGRATION & ANOR	[2009] FMCA 1277	

MIGRATION – Alleged jurisdictional error – matter not put to applicant by Tribunal – matter part of Tribunal’s dispositive consideration – Tribunal relying on applicant’s evidence.	

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63
VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471	

Applicant:	mzyfq	

First Respondent:	minister for immigration & citizenship	

Second Respondent:	Refugee review tribunal	

File Number:	MLG 1016 of 2009	

Judgment of:	Burchardt FM	

Hearing date:	27 November 2009	

Date of Last Submission:	27 November 2009	

Delivered at:	Melbourne	

Delivered on:	24 December 2009	

REPRESENTATION
Counsel for the Applicant:	Mr J. Gibson	

Solicitors for the Applicant:	Victoria Legal Aid	

Counsel for the Respondents:	Mr W. Mosley	

Solicitors for the Respondents:	Australian Government Solicitor	

ORDERS
(1)	The application be dismissed.
(2)	The Applicant pay the First Respondent’s costs fixed in the sum of $5,865.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
melbourne	
MLG 1016 of 2009
MZYFQ	
Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP	
First Respondent

refugee review tribunal	
Second Respondent

REASONS FOR JUDGMENT
1.	The applicant seeks review of a decision of the Refugee Review Tribunal (“Tribunal”) dated 9 July 2009.  The Tribunal affirmed a decision of the delegate of the Minister determining that the applicant was not a person to whom Australia had protection obligations.  
2.	The applicant says that the Tribunal fell into jurisdictional error because it failed to put to him questions about failure on the part of the applicant to relocate within Sri Lanka prior to his coming to Australia.  
3.	For the reasons that follow, I do not accept this assertion and the application will be dismissed.  
The Amended Application
4.	An amended application was filed by the applicant on 19 October 2009.  Relevantly, the ground asserted to constitute jurisdictional error (and it was the only one) was described thus:
	“The Tribunal made findings under the heading of the Applicant’s credibility generally that he had never attempted to relocate within Sri Lanka and that this was inconsistent with his claimed past persecution.  The Tribunal had questioned the applicant in the hearing about relocation in the future if returned to Sri Lanka, but had not put to him anything that would suggest that a failure to relocate in the past was an issue or a “live” issue in relation to the decision under review.  In failing to give the Applicant sufficient opportunity to give evidence, or make submissions, about a determinative issue forming part of general adverse credibility findings affecting the ultimate decision the Tribunal was in breach of its obligations under s.425 of the Act.”
5.	This succinct point was relevantly and concisely addressed in the applicant’s written contentions at paragraphs 20 to 22:
	“20.	The Applicant’s submission is simply that the Tribunal failed to give the Applicant sufficient opportunity to give evidence, or make submissions, about a determinative issue forming part of general adverse credibility findings affecting the ultimate decision and thus was in breach of its obligations under s.425 of the Act.  
	21.	The factors referred to by the Tribunal under the relevant heading both contributed to the adverse credibility finding i.e. failure to raise claims in a timely fashion and failure to relocate.
	22.	The Tribunal did not identify the issue of past relocation as an important issue, nor say anything to him that would have revealed to him that it was a live issue.”
6.	There followed reference to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63).  
The Minister’s Response
7.	The Minister’s response (see paragraphs 18 to 22 of the first respondent’s contentions of fact and law) is essentially to the effect that the relocation issue was squarely raised in the proceeding.  It was put that “unlike in SZBEL, to which the applicant refers, the Tribunal did challenge what the applicant said in relation to relocation and expressed a reaction thereto and invited amplification”.  
8.	The Minister went on, in substance, to refer to the evidence actually given by the applicant to the effect that he had always lived in Negombo and liked his own area, and submitted that the Tribunal’s factual finding was, in the circumstances, not surprising.  
9.	The Minister also submitted that the Tribunal was not obliged to put in advance to the applicant every step in its reasoning processes, there being further reference to SZBEL and to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471.  
The Proceeding Before the Tribunal
10.	The relevant paragraphs of the Tribunal’s decision dealing with relocation are as follows:
	“80.	The applicant was asked whether there was any reason why he wouldn’t be able to relocate and resume his fishing occupation elsewhere in Sri Lanka.  The Tribunal noted that given he spoke a number of languages it might be open for him to do so either in a Singhalese or a Tamil speaking area.  The applicant replied that he can’t leave his native village and go to some other place.  
	81.	The Tribunal observed that he appeared to have had no difficulty coming to Australia.  The applicant replied that by native village he means the place he comes from near Negombo.  He couldn’t leave it and go to some other place in that country as he has lived there for so long.  Asked why he couldn’t leave his home area, he said he was born in Negombo and he likes to go and live in his own area.  
	82.	The Tribunal pointed out that the applicable legal test requires an assessment of whether it is reasonably open to him to relocate if he is facing persecution in his home area.  The applicant said that not all the coast of Sri Lanka can be used for fishing purposes – it’s only possible in certain locations.  
	83.	The Tribunal suggested to the applicant that there is fishing off much of the Sri Lankan coast, and queried why it wouldn’t be safe for him to go, for example, to the other side of the island and fish there.  He said he had never been there before.  
	84.	The Tribunal reiterated to the applicant that he appeared to speak a number of languages and have portable skills, and had been prepared to relocate to Australia.  It queried why he couldn’t, for example, relocate to the other side of the island to a place such as Trincomalee.  The applicant said he was not used to living in such a place.  He has been living in the same place in Sri Lanka for 35 years and he doesn’t want to risk going to some other area, that’s why they came to Australia.”
11.	The Tribunal dealt with the applicant’s credibility generally at CB111 to 112.  Relevantly for these purposes, at paragraph 101, the Tribunal said:
	“In addition, the applicant appears to have made no effort to relocate within Sri Lanka to avoid the problems he claims to have experienced in 2005, or to depart Sri Lanka until three years later.  When the question of relocation was put to him at the hearing, the applicant dismissed it out of hand, on the basis that he felt obliged to continue to reside in his home area, and yet he obviously had no compunction about borrowing money to relocate to Australia.  This behaviour appears to the Tribunal to be inconsistent with a claimed fear of persecution.”
Consideration 
12.	I think that the submission of counsel for the applicant that the Tribunal did not put the past failure to relocate in Sri Lanka squarely to the applicant at the Tribunal hearing is correct.  The questions put, as illustrated above, all related to future relocation.  
13.	I also accept that the Tribunal’s conclusions about past relocation (or more accurately the lack of it) play a part in the ultimate outcome.  
14.	It should be noted that the assertion in the second sentence of paragraph 101, namely “When the question of relocation was put to him at the hearing, the applicant dismissed it out of hand, on the basis that he felt obliged to continue to reside in his home area, and yet he obviously had no compunction about borrowing money to relocate to Australia”, is also clearly correct.  I would also accept that that, in itself, might reasonably have been found by the Tribunal to be inconsistent with the claimed fear of persecution.  
15.	The real issue in my view, however, is whether the first sentence “In addition, the applicant appears to have made no effort to relocate within Sri Lanka to avoid the problems he claims to have experienced in 2005, or to depart Sri Lanka until three years later”, or more accurately, the first part of that sentence is open to characterisation as jurisdictional error.  
16.	As I have said, it appears to have been part of the reason why the application was unsuccessful.  As the High Court said in SZBEL at [35]:
	“The Tribunal is not confined to whatever may have been the issues that the delegate considered.  The issues that arise in relation to the decision are to be identified by the Tribunal.  But if the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review.” That is why the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision.  And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision maker identified as determinative against the applicant.”
17.	At [44], when expressing the Court’s conclusion, the High Court said:
	“The Tribunal did not accord the appellant procedural fairness.  The Tribunal did not give the applicant a sufficient opportunity to give evidence, or make submissions, about what turned out to be two of the three determinative issues arising in relation to the decision under review.”
18.	Here, in the ultimate, I am persuaded by the Minister’s submission that the Tribunal’s observations merely reflect a conclusion by the Tribunal that flowed directly from the evidence given by the applicant himself.  It is clear that the applicant told the Tribunal that he had lived all his life near Negombo and had never thought of moving.  That remained his position if he was to return also.  But, while the questions put to the applicant were clearly only about future relocation, the answers given by the applicant were not so restricted.  On the contrary, the Tribunal’s finding that the applicant had never sought to relocate within Sri Lanka was doing no more than repeating what the applicant himself had said.  
19.	In these circumstances, the Tribunal was entitled to make the conclusion it did based upon the evidence that the applicant had given to it, and I do not think that the Tribunal fell into jurisdictional error.  
20.	As a result, it follows that the application must be dismissed with costs.  
I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Burchardt FM

Associate:  Ms B. Evans

Date:  24 December 2009