SZASZ v Minister for Immigration - [2004] FMCA 433

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZASZ v MINISTER FOR IMMIGRATION

[2004] FMCA 433

MIGRATION – Application to review decision of Refugee Review Tribunal – no jurisdictional error.

Migration Act 1958 (Cth)

Randhawa v The Minister for Immigration and Ethnic Affairs (1992) 52 FCR 437
SKFB v The Ministerfor Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 142
Minister for Immigration and Multicultural and Indigenous Affairs v Respondent S152/2003 (2004) 78 ALJR 678

Applicant:

SZASZ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ1042 of 2003

Delivered on:

24 June 2004

Delivered at:

Sydney

Hearing date:

24 June 2004

Judgment of:

Barnes FM

REPRESENTATION

Counsel for the Applicant:

Nil

Solicitors for the Applicant:

Nil

Counsel for the Respondent:

Mr J. Smith

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That the application is dismissed.
That the applicant pay the respondent’s costs fixed in the amount of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ1042 of 2003

SZASZ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 23 October 2002 affirming a decision of a delegate of the respondent to refuse to grant the applicant a protection visa. The applicant is a citizen of the Russian Federation who arrived in Australia on 27 November 1999. On 23 May 2000 she lodged an application for a protection visa. On 13 July 2000 a delegate of the respondent made a decision refusing to grant that visa and the applicant sought review by the Tribunal on 8 August 2000. The Tribunal held a hearing which the applicant attended.
The Tribunal reasons for decision addressed the claims made by the applicant. The applicant claimed that her husband was Jewish and that on this account both she and he had been beaten on a number of occasions and had been unable to obtain assistance in that respect from the authorities in their home town. Her husband had become ill and eventually killed himself to escape the suffering associated with that condition. He died in 1997. The applicant claimed that she continued to be persecuted even after his death on account of his religion.
The Tribunal accepted that the applicant and her husband had been harmed in a manner constituting persecution on account of his religion. It accepted that her husband was Jewish and that he suffered the harassment and violence claimed and that she was also, as his wife, the victim of harassment and violence. It accepted that the harm she suffered before his death was sufficiently serious to constitute persecution for reason of the religion imputed to her. The Tribunal also accepted that the applicant was assaulted by the same people who had previously assaulted herself and her husband after her husband's death and that if she returned to her home town there was a real chance that she would suffer persecutory harm again.
However, the Tribunal found that the applicant did not have a well-founded fear of persecution for the religion imputed to her if she returned to Russia. It found on the evidence before it, which it outlined, that the applicant could reasonably relocate elsewhere within Russia and that if she did so she would have no well-founded fear of persecution. The findings in this respect were based on a number of matters. First, the fact that the applicant was once married to a Jewish person would be unknown outside her home town and therefore of no harmful consequence to her if she relocated. Secondly, the Tribunal did not accept her claims that she could not relocate to Moscow or St Petersburg. It considered her claim that she could not relocate to Moscow because one of her three assailants lived there and had important contacts there and would be able to find her. However it found it implausible and did not accept the claim that even a well-connected person could trace her in a city of some eight and a half million people bearing in mind that he would not know that she had moved there.
She had also claimed she could not move to St Petersburg because she could not afford to pay the high rents there. The Tribunal did not accept this claim in relation to St Petersburg or in relation to Moscow. It had regard to her claim that she would receive about $US1,000 for the sale of her apartment and that she had a thriving successful business as a dressmaker. On this basis it found that if the applicant sold her apartment she would have a ready amount of money to put towards rent in Moscow, St Petersburg or indeed any other major Russian metropolis as well as living expenses while she re-established her dressmaking business for which there would be an even greater demand in a large cosmopolitan centre.
The Tribunal also considered relocation elsewhere. It concluded that it would be reasonable for the applicant to relocate beyond Russia's two main cities on the basis of her professional experience and skills, the fact that she had no one else to support and that she was Russian Orthodox, the country's majority faith. The Tribunal therefore found the applicant did not have a well-founded fear of persecution for the religion imputed to her now or in the reasonably foreseeable future if she returned to Russia.
The applicant made an application to this court on 11 June 2003. The grounds in the application take issue with the factual findings of the Tribunal. The application states that the applicant believed that the Tribunal had made a few mistakes as there was evidence to suggest that there was increased anti-Semitic rhetoric which had led to increased violence in Russia and that she believed that she had reasonable grounds for seeking protection and that she would be persecuted if she returned to Russia and that there was a real danger to her life.
The application filed in this Court does not establish any ground for review. The applicant contended that the Tribunal made a few mistakes and that there was some evidence in relation to increased anti-Semitic rhetoric leading to increased violence in Russia. Insofar as this raises a claim that the Tribunal failed to take into account relevant considerations it is not established. As indicated above the Tribunal accepted the applicant's claims in relation to past harm and also that if she returned to her home town there was a real chance she would suffer persecutory harm again. It also had regard to country information in relation to anti-Semitism in Russia today. It is apparent from the Tribunal reasons for decision that the Tribunal did consider all the elements or integers of the applicant's claims but found that it was reasonable for her to relocate. In considering the issue of relocation the Tribunal properly applied the principles set down by the Full Court of the Federal Court in Randhawa v The Minister for Immigration and Ethnic Affairs (1992) 52 FCR 437 as re-affirmed by the Full Court in SKFB v The Minister for Immigration & Multicultural & Indigenous Affairs (2004) FCAFC 142, in particular at [13].
There is no suggestion, nor is it apparent on the material before me, that the Tribunal failed to take into account the matters raised by the applicant in relation to the reasonableness of relocation. Nor is there anything in the Tribunal reasoning inconsistent with the approach of the Full Court in SKFB or indeed the recent High Court decision in Minister for Immigration and Multicultural and Indigenous Affairs v Respondent S152/2003 (2004) 78 ALJR 678. This is not a case in which there is any suggestion that the applicant would be required to modify her beliefs or opinions or hide the fact that she was of a particular origin or social group were she to return to Russia (the Full Court in SKFB made the point that the relocation principle did not require such modification). The question is whether there is a real risk that the applicant would be persecuted for a Convention reason if required to return to her country of nationality. The relocation principle is concerned with the protection which can be given to the putative refugee by her own country. It was so considered by the Tribunal. Furthermore, the applicant was invited to and did attend a hearing and there is nothing to suggest that there was any lack of procedural fairness.
The applicant also raised, albeit indirectly in material submitted to the Court at the time of her application, the question of s.417 of the Migration Act 1958 (Cth). She submitted a number of documents addressed to the Court requesting the Court to exercise power under s.417. However, s.417 provides:
If the Minister thinks that it is in the public interest to do so the Minister may substitute for a decision of the Tribunal another decision being one that is more favourable to the applicant.
This is a power that may be exercised by the Minister for Immigration personally. The Court does not have such a power. If the applicant seeks that a visa be granted on humanitarian grounds she must make an application directly to the Minister.
No jurisdictional error has been raised by the applicant nor is a jurisdictional error apparent in the Tribunal decision.
The application must be dismissed.

RECORDED : NOT TRANSCRIBED

The applicant has been unsuccessful. It is appropriate that she meet the Minister's costs. The amount of $4000 sought is appropriate in light of the nature of this and other similar matters.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 2 August 2004