SZATV v MIAC

Case [2007] HCA 40

HIGH COURT OF AUSTRALIA

GUMMOW, KIRBY, HAYNE, CALLINAN AND CRENNAN JJ

SZATV   APPELLANT

AND

MINISTER FOR IMMIGRATION
AND CITIZENSHIP & ANOR  RESPONDENTS

SZATV v Minister for Immigration and Citizenship
[2007] HCA 40
30 August 2007
S62/2007

ORDER

1.Appeal allowed with costs.

2.Set aside the order of the Federal Court of Australia made on 31 October 2005 and in its place order:

(a)appeal allowed with costs; and

(b)set aside the orders of the Federal Magistrates Court made on 1 August 2005 and in their place order that:

(i)a writ of certiorari issue directed to the Refugee Review Tribunal, quashing its decision made on 30 April 2003;

(ii)a writ of prohibition issue directed to the Minister, prohibiting the Minister from giving effect to the Refugee Review Tribunal's decision made on 30 April 2003;

(iii)a writ of mandamus issue directed to the Refugee Review Tribunal, requiring it to determine according to law the application for review made on 23 May 2002; and

(iv)the Minister pay the applicant's costs.

On appeal from the Federal Court of Australia

Representation

J T Gleeson SC with N J Owens for the appellant (instructed by Corrs Chambers Westgarth)

S J Gageler SC with P S Braham and T Reilly for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

SZATV v Minister for Immigration and Citizenship

Immigration – Refugees – The appellant was a Ukrainian national who faced persecution in his home region on account of the expression of his political beliefs through journalism – Whether the principle of internal relocation is consistent with the Convention relating to the Status of Refugees – Whether the Refugee Review Tribunal erred in holding that it was reasonable for the appellant to relocate elsewhere in Ukraine – Whether postulated relocation involves denial of fundamental right to free expression of political beliefs protected by Convention.

Immigration – Refugees – Well-founded fear of persecution – Whether a well-founded fear of persecution may be confined to a particular region of a country – Whether persecution may reasonably be avoided by relocation – Whether persecution may reasonably be avoided by living "discreetly" – Relevance of practicability – Relevance of territorial distinctions.

Words and Phrases – "discreet", "owing to", "practicable", "protection", "refugee", "relocation", "well-founded fear of persecution".

Migration Act 1958 (Cth), s 36(2).

Convention relating to the Status of Refugees, Art 1A(2).

GUMMOW, HAYNE AND CRENNAN JJ.

The Facts

  1. The appellant was born in 1960 in the city of Chernovtsy, situated in what was then the Union of Soviet Socialist Republics ("the USSR").  Upon the dissolution of the USSR the appellant acquired Ukrainian nationality. 

  2. Chernovtsy (formerly Czernowitz) is situated in the west of Ukraine, close to the Carpathian mountain range and to the northern border of Romania.  In the 19th century it was the chief city of the Bukovina region in the Austro-Hungarian Empire and was developed as…

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AGLC
SZATV v MIAC [2007] HCA 40
Case
[2007] HCA 40
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by SZATV, a Ukrainian national, against a decision of the Refugee Review Tribunal (the Tribunal) that affirmed the refusal of a protection visa. SZATV had claimed to face persecution in his home region of Chernovtsy due to his political beliefs expressed through journalism. The Tribunal, while accepting that SZATV had suffered past persecution and that regional government corruption and intimidation of journalists were serious problems in Chernovtsy, ultimately found his fears of future persecution to be unfounded because it was reasonable for him to relocate elsewhere within Ukraine.

The central legal issues before the High Court were whether the principle of internal relocation, as applied by the Tribunal, was consistent with the Convention relating to the Status of Refugees, and whether the Tribunal had erred in holding that it was reasonable for SZATV to relocate within Ukraine. Specifically, the Court had to determine if a postulated relocation involved a denial of fundamental rights, such as the freedom of expression, protected by the Convention, and whether a well-founded fear of persecution could be confined to a particular region of a country, with persecution being reasonably avoided by relocation or by living "discreetly."

The High Court allowed the appeal, setting aside the orders of the Federal Court and the Federal Magistrates Court. The Court reasoned that the internal relocation principle, as applied by the Tribunal, was not a free-standing prerequisite to refugee status. Instead, the capacity to relocate was only relevant insofar as it illuminated whether the reason for being outside the country of nationality was a "well-founded" fear of persecution. The Court emphasised that internal relocation would not be a reasonable option if there were logistical or safety impediments, other risks in the proposed relocation area, or if safety could only be achieved by going into hiding. The Tribunal's decision was found to have erred by applying the relocation test without adequately considering these factors and the specific circumstances of the appellant's fear.

Orders

Orders of the court

1. Appeal allowed with costs.

2. Set aside the order of the Federal Court of Australia made on 31 October 2005 and in its place order:

(a) appeal allowed with costs; and

(b) set aside the orders of the Federal Magistrates Court made on 1 August 2005 and in their place order that:

(i) a writ of certiorari issue directed to the Refugee Review Tribunal, quashing its decision made on 30 April 2003;

(ii) a writ of prohibition issue directed to the Minister, prohibiting the Minister from giving effect to the Refugee Review Tribunal's decision made on 30 April 2003;

(iii) a writ of mandamus issue directed to the Refugee Review Tribunal, requiring it to determine according to law the application for review made on 23 May 2002; and

(iv) the Minister pay the applicant's costs.

Background

Background to the litigation

I agree in the orders proposed in the reasons of Gummow, Hayne and Crennan JJ ("the joint reasons")[35]. As will appear, to a substantial degree, I concur in the reasoning that lies behind those orders. However, because I come to my conclusions in a somewhat different way, I will express them in these separate reasons.[35]Joint reasons at [33]. See also reasons of Callinan J at [108].The facts The starting point is a need to get a little more of the flavour of the circumstances into which the Refugee Review Tribunal ("the Tribunal") injected what I shall call the "relocation test". I use that expression in preference to "relocation principle"[36] because, as I shall show, the test has a somewhat fragile footing in the text of the Refugees Convention itself. [36]Joint reasons at [9]. The introduction of the test into decision-making in refugee cases has become extremely common. In a sense, every time a refugee applicant leaves a country of nationality that is large (or even middling) in size, a question now appears to be presented as to whether the claim to refugee status should be rejected on the footing that the applicant could have moved elsewhere in the country of nationality rather than looking for surrogate protection from the country of refuge. The background facts are stated in the joint reasons[37]. However, it is useful to appreciate the extent to which the Tribunal accepted the "key claims" of the appellant, SZATV[38]. He was generally found to have been a credible witness. The Tribunal recorded that he had worked for several years in Ukraine as a freelance journalist, ultimately graduating to full-time work on a newspaper in Chernovtsy, the city in which he was born, educated and lived[39]. [37]Joint reasons at [1]-[5].[38]The name has been anonymised in accordance with s 91X of the Migration Act 1958 (Cth) ("the Act").[39]Refugee Review Tribunal, decision and reasons of the Tribunal, 30 April 2003 ("Reasons of the Tribunal") at [3], [64], [66]. Before the middle of July 2000 there had been a number of objections to articles which the appellant had written about corruption in government. One of these articles, published in July 2000, criticised the regional Governor for corruption. In the result, both the editor of the newspaper and the appellant were singled out for threats. The appellant was publicly abused by the Governor and received a telephone call from the Deputy Governor in which he was "brazenly threatened … with death if he continued to write articles critical of the regional administration"[40]. [40]Reasons of the Tribunal at [66]. There followed anonymous callers threatening "trouble"; a search of the appellant's apartment and office; an incident in which he was bashed; and warnings to his wife that her employment was in danger. In May 2001 the appellant was also summoned to the local police station, a troubling development. He departed for Australia in June 2001. The Tribunal accepted independent country information to the effect that "despite the fact that the Constitution of Ukraine and a 1991 law provide for freedom of speech and the press the government does not respect these rights … [S]everal journalists have been murdered and a number have suffered serious injuries in assaults, all of which may have been politically motivated."[41] The Tribunal also accepted that the governmental authorities in Ukraine "interfere with news media by intimidating journalists"; pressure journalists to apply self-censorship; and utilise defamation law to silence critics. Specifically, the Tribunal "accept[ed] both that regional government corruption and the willingness of regional government officials to intimidate and threaten with serious harm is a serious problem in Chernovtsky"[42]. The Tribunal acknowledged that registration for social benefits and employment was still unofficially required in Ukraine, as in Soviet days, despite a court ruling that it was illegal[43]. Nevertheless, without evaluating the extent, nature and precise causes of the "fear" claimed by the appellant as the reason for his departure from Ukraine to Australia (and whether such fear was otherwise "well-founded" within the meaning of the Refugees Convention), the Tribunal turned, in the concluding and decisive three paragraphs of its reasons, to the relocation test which proved decisive for its decision.[41]Reasons of the Tribunal at [67].[42]Reasons of the Tribunal at [69].[43]Reasons of the Tribunal at [78].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GUMMOW, HAYNE AND CRENNAN JJ KIRBY J CALLINAN J
The appellant arrived in Australia on 12 June 2001 and on 24 July of that year he lodged an application for a protection (Class XA) visa to be issued pursuant to the Migration Act 1958 (Cth) ("the Act"). A delegate of the Minister (the first respondent in this Court) refused to grant a protection visa and on 30 April 2003 that decision was affirmed by the Refugee Review Tribunal ("the Tribunal") (the second respondent in this Court).The Tribunal Decision The Tribunal accepted, as a serious problem in Chernovtsy, regional government corruption and the willingness of regional government officials to intimidate and to threaten public critics, such as journalists, with serious harm. It also found that by reason of his political views the appellant had been subjected to "a systematic campaign of harassment" which included physical mistreatment. But in the penultimate paragraph of its reasons, par [81], the Tribunal concluded:"In summary I find that the [appellant] has suffered persecution in the past for the Convention reason of his political opinions. However, I am satisfied that, because the persecution he has suffered is localised to the Chernovtsy region, it is reasonable for the [appellant] to relocate elsewhere in Ukraine. Accordingly, I am not satisfied that his fears of persecution upon his return to Ukraine are well founded." Section 483A of the Act provided that the Federal Magistrates Court had the same jurisdiction as the Federal Court in relation to a matter arising under the Act. With respect to the decision of the Tribunal, the parties accept that the effect of s 483A was to confer upon the Federal Magistrates Court the jurisdiction provided for in s 39B of the Judiciary Act 1903 (Cth) ("the Judiciary Act"). An application to the Federal Magistrates Court by the appellant was dismissed on 1 August 2005, it being held that the complaints he made did not establish a case of jurisdictional error on the part of the Tribunal. An appeal to the Federal Court of Australia was heard by Tamberlin J and dismissed on 31 October 2005.The "Relocation Principle" In this Court, active opposition to the appeal was provided by the Minister. The Tribunal entered a submitting appearance. The appellant identifies as the primary issue the correctness of the "internal relocation principle" which was expounded by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs[2].[2](1994) 52 FCR 437. In Randhawa, after referring to the text of the Convention relating to the Status of Refugees ("the Convention") and in particular to that part of the definition of the term "refugee" in Art 1A(2), Black CJ said[3]:"Although it is true that the Convention definition of refugee does not refer to parts or regions of a country, that provides no warrant for construing the definition so that it would give refugee status to those who, although having a well-founded fear of persecution in their home region, could nevertheless avail themselves of the real protection of their county of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders."[3](1994) 52 FCR 437 at 440‑441.

Ratio Decidendi

Legal Principle Established

Established by: GUMMOW, HAYNE AND CRENNAN JJ, KIRBY J, CALLINAN J

International practice: Against the background of this strong, largely consistent national and international practice and the qualified acceptance of its legitimacy by UNHCR itself, it would be impossible and undesirable for this Court to deny this development in Australia alone. On legal questions of this kind, national courts and tribunals must inform themselves of relevant international developments. Having done so — as I have attempted to do in these reasons — in the absence of some peculiar local legal basis for departure, they should seek to reflect the international approach in their own municipal decisions.The operation of the internal relocation rule Viewing relocation in context: The conclusion of UNHCR, just quoted, indicates, to my mind, the correct way in which an accurate application of the Refugees Convention (and hence, in Australia, of s 36(2) of the Act) will be achieved by refugee claim adjudicators, the Tribunal and the courts. In each case it is necessary to keep in mind the purpose, under the Refugees Convention, for which the reasonable possibility of relocation is being considered. It is not a free-standing prerequisite to individual entitlements under the Refugees Convention. Those entitlements arise on the refugee applicant's establishing a presence outside the country of nationality owing to a well-founded fear of being persecuted for Refugees Convention reasons. The postulated capacity to relocate is only relevant insofar as it casts light on the question whether the reason for being outside the country of nationality is a "well-founded" fear of the risk of persecution. A propounded "fear" might not be classified as "well-founded" if, instead of seeking protection from Australia, it would be reasonable for the applicant to rely on his or her country of nationality to afford the protection at home by the simple expedient of moving to another part of the country, free of the risk of persecution. Ways of testing reasonableness: By definition, an applicant for refugee status is a person who has made the application for protection outside the country of nationality. Flight to the country of refuge, and the necessity of building a new life there (generally starting with few, if any, assets and with various disadvantages), ordinarily indicates that the refugee applicant will have accepted as tolerable risks and burdens of external relocation. But would not the prospect of internal relocation always be more reasonable and thereby exclude the requirement of external protection where internal relocation was or is a reasonable option? A review of the literature suggests that this conclusion will not invariably follow, either as a matter of fact or law. Thus, internal relocation will not be a reasonable option if there are logistical or safety impediments to gaining access to the separate part of national territory that is suggested as a safe haven[79]. Nor if the evidence indicates that there are other and different risks in the propounded place of internal relocation[80]; or where safety could only be procured by going underground or into hiding[81]; or where the place would not be accessible on the basis of the applicant's travel documents or the requirements imposed for internal relocation[82]. [79]European Council on Refugees and Exiles, Research Paper at 8-9.[80]The Michigan Guidelines on the Internal Protection Alternative, agreed to at the First Colloquium on Challenges in International Refugee Law, 9-11 April 1999, at [13].[81]Hathaway and Foster at 384-385.[82]Hathaway and Foster at 391.