SZATV v MIAC

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.