SZATV v Minister for Immigration

[2005] FMCA 935

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATV v MINISTER FOR IMMIGRATION [2005] FMCA 935

MIGRATION – Refugee – persecution for Convention reason of political opinion – internal relocation possible – was there an expectation of certain behaviour by the Tribunal – freedom of speech – no reviewable error.

Migration Act 1958, s.474

AppellantS395 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 71
Win v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 132
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247
SKFB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 142
Minister for Immigration and Multicultural Affairs v Respondents  S152/2003[2004] HCA 18
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437
NALZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 320

Applicant: SZATV

Respondent: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number: SYG 1088 of 2003

Judgment of: Nicholls FM

Hearing date: 15 December 2004

Date of Last Submission: 8 December 2004

Delivered at: Sydney

Delivered on: 1 August 2005

REPRESENTATION

Counsel for the Applicant: Mr. S. Lloyd

Solicitors for the Applicant: Pearl Chew & Associates

Counsel for the Respondent: Mr. T. Reilly

Solicitors for the Respondent: Australian Government Solicitor

ORDERS

1. The Application is dismissed.

2. The applicant is to pay the respondent’s costs set in the fixed amount of $5000, pursuant to rule 21.02(2)(a) of the Federal Magistrates Court Rules 2001.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 1088 of 2003

SZATV

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

1. This is an application filed in this Court on the 16 June 2003 seeking a review of the decision of the Refugee Review Tribunal (“the Tribunal”) made on 30 April 2003 and handed down on 22 May 2003 affirming the decision made on 26 April 2002 by a delegate of the respondent Minister to refuse a protection visa to the applicant.

2. The applicant’s claims to refugee protection are set out in his application to the respondent’s Department, reproduced at Court Book 1 to CB 29 and more particularly in his application for review to the Tribunal reproduced at CB 46 to CB 49. The applicant, by letter dated 26 May 2002 submitted to the Tribunal, made what he described as a “full statement”. This is reproduced at CB 52 to CB 56. The applicant’s claims as put to the Tribunal at the hearing before it, are also set out in some detail in the Tribunal’s decision record at CB 98.5 to CB 102.5. The applicant submitted a number of documents to the Tribunal at the hearing before it, and with English translations, these are reproduced at CB 61 to CB 87.

3. The applicant is a citizen of Ukraine. He arrived in Australia on 12 June 2001. The applicant claimed that he had suffered persecution in Ukraine for the Refugees Convention reason of political opinion. He believed that he would be subjected to similar persecution upon return.  He claimed that in 1995 he started working as a journalist for the “Chernovtsky City” newspaper where he wrote primarily about government corruption. On or about 14 July 2000 the applicant wrote an article criticising the regional government administration. The publication of this article precipitated public criticism by Governor Bauer, the Governor of the applicant’s province, and an ongoing campaign of anonymous and threatening telephone calls, that included threats of death, which were directed toward him and his family. The applicant claimed that in the following months he was pressured to resign from the newspaper, subjected to illegal searches by state officials and assaulted by three police officers. The applicant claimed that in May 2001 he was informed that some of his material had been classified as “anti-state propaganda” and that this material would be forwarded to the Ukraine Security Service (SBU) for further investigation. The applicant claimed that he was offered the opportunity by some police to pay US$5000 to “find a more flexible approach” but that as he was unable to raise the money demanded, he believed his only option was to flee the country.

4. An examination of the Tribunal’s “Findings and Reasons” (CB 109 to CB 114) makes it clear that the Tribunal essentially made two critical findings in relation to the applicant’s claims.

   1)That although the Tribunal thought there was ‘significant inconsistency’ between the original claims of the applicant and those presented at the hearing, the Tribunal accepted that the applicant had been the subject of a campaign of abuse and harassment that amounted to persecution for the Convention reason of political opinion.

   2)That despite this, internal relocation was a realistic option for the applicant. This was based on the Tribunal refusing to accept that the SBU would pursue the applicant upon his return to the Ukraine, and in addition, that while accepting that the applicant may no longer be able to work as a journalist anywhere within the Ukraine, other work (including such construction work that the applicant had pursued in Australia) would be available.

5. The applicant’s original application to this Court was that the Tribunal erred in finding that the applicant could relocate elsewhere in the Ukraine after finding that he did have a well founded fear of persecution. The applicant filed an amended application on 27 April 2004 which asserted one ground, with particulars, and expanded this in supporting submissions filed by the applicant on 20 August 2004.  The particularised ground is that:

   1)“The purported decision was not a decision with any lawful effect because it was infected by jurisdictional error:

   a)The Tribunal accepted that the Applicant was a Ukrainian journalist who had been subjected to a systematic campaign of harassment with physical mistreatment which amounted to persecution and was for the Convention reason of anti-government political views imputed to him (RD 112.4).

   b)The Tribunal found that it would be reasonable for the Applicant to relocate within the Ukraine. It found that he may not be able to find work as a journalist elsewhere in the Ukraine but could find work in the construction industry (RD 114).

   c)The Tribunal accepted country information which indicated that journalists had suffered such harassment and violence throughout the Ukraine (RD 102-109).

   d)In substance, the Tribunal considered that the Applicant would avoid further harm if he did not work as a journalist (RD 101.5) and that it was reasonable for him to relocate within the Ukraine and do that. This constituted error because it is no part of the Tribunal’s role to consider whether an asylum seeker should or would act reasonably to avoid further harm upon their return: S395 v Minister for Immigration and Multicultural and Indigenous [2003] HCA 71.

   e)Alternatively, the Tribunal failed to consider the Applicant’s claims that he “will always be a journalist” (RD 101.5). In the context that the Tribunal accepted that:

   ·     The Applicant had worked extensively as a journalist focusing on the area of corruption;

   ·     Corruption was a problem throughout the Ukraine (RD 113.4);

   ·     Journalists working in this field have been subject to harassment and violence throughout the Ukraine

   It was incumbent upon the Tribunal to consider whether the Applicant would face persecution should he continue to work as a journalist in the Ukraine in his chosen area.

   f)Further, if the Tribunal considered that the Applicant would be unable to work as a journalist, it failed to consider whether the suppression of his right to free speech (which it accepted had occurred) in itself constituted persecution for the Applicant: Win v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 132.”

   I also have before me the applicant’s and respondent’s outlines of submissions.

6. At the hearing before me Mr. Lloyd appeared for the applicant and Mr. Reilly for the respondent Minister. The applicant was present and was assisted by an interpreter in the Russian language. The applicant's position as put by Mr. Lloyd is that the Tribunal was in error because it did not go on to consider whether the applicant had a well founded fear of being persecuted elsewhere in the Ukraine for being a journalist and that in looking at the issue of relocation, it had an expectation that the applicant would be forced to give up the expression of his political opinion, that is, through his work as a journalist and that this expectation on the part of the Tribunal was of the type of error found by the High Court in “S395”. Essentially, Mr. Lloyd's submission centres around the finding of the Tribunal at CB 114.1:

   “While he may not be able to work as a journalist elsewhere in Ukraine I believe that he may be able to obtain work in the construction industry as he has done in Australia. I have already found that the chance of the applicant being arrested by the SBU upon his return to Ukraine is remote. I am also satisfied that he does not have an anti-government political profile generally in Ukraine and would not be of adverse interest to authorities outside the Chernovtsky region.”

7. Mr. Lloyd for the applicant developed his argument by relying on:

   1)That the Tribunal found that the applicant was generally credible, subject to its rejecting one aspect of his claim, and it accepted the vast bulk of his claims and found that he had suffered persecution for a Convention reason in the Ukraine.

   2)The critical part of the mistake as asserted by the applicant in what the Tribunal has done is in assessing the prospect of future harm. That the Tribunal has failed to properly consider whether the applicant faces persecution if he were to return to Ukraine and work as he claimed he would do as a journalist.

   3)That the written material before the Tribunal, that is the application for a protection visa reproduced at CB 18, in an attached statement to this application at CB 27 to CB 28 and in his application to the Tribunal, the applicant asserted and that he had been a professional journalist from May 1991 and that in August 1995 his focus in journalism became centred upon reporting on corruption in government. In a declaration submitted to the Tribunal at CB 53 to CB 56 the applicant provides further relevant details and in particular in the context of presenting the problems that he had faced with the local authorities he said at CB 55.3:

   “It was my intention to continue my investigating work independently and publish wherever possible.”

   A point emphasised by Mr. Lloyd was that even though the applicant had lost his job it was his intention to continue his investigating work. Whether he was paid or unpaid he would continue to pursue the questions of corruption that he had been investigating.

   4)That the applicant provided a statement to the Tribunal at the hearing before the Tribunal on 11 April 2003 which contained information to the effect that the government continued to interfere with news media by intimidating journalists (CB 70.8) and more importantly at CB 74.5, information to the effect that during the year journalists were subjected to physical attacks and that the national affiliate of “Reporters without Borders” reported 28 incidents of physical and verbal harassment against journalists and that four had been killed allegedly due to their trenchant reporting about local and national political authorities. Mr. Lloyd emphasised that the recent information detailed harassment and violence against journalists as not being referable just to one city, but to Ukrainian journalists in general.

   5)That in the Tribunal's claims of what the applicant said at the hearing before it, the Tribunal recorded that:

   “I put to the applicant that it seemed that what the authorities were seeking to do was to stop him writing articles which were critical of the regional administration and Bauer, the regional president. This also appeared to be the message delivered to his wife. He had not published anything since about October 2000. If he went back to Ukraine and got work outside journalism it seemed to me he would not be at risk of further mistreatment. He said that he will always be a journalist.”(CB 101.4)

   Mr. Lloyd asked me to note that this is a repeat of his earlier claim that even though he had lost his professional work he said that he would continue to work as a journalist, and secondly, that by asking this question, that is, that he would work outside journalism and he would not be at further risk, supports an inference that the Tribunal might think that that question could be relevant in to its findings. The concern according to Mr. Lloyd is that the Tribunal was in error in putting to the applicant that he should go back, and not express his political opinion.

   6)That at CB 102.2 the Tribunal says:

   “At this point I raised with the applicant the possibility of his relocating elsewhere in Ukraine. The Applicant said there were problems for him in relocating. He had been born and raised and spent all his life in Chernovtsi and when he went back he would think about this town. He would have difficulty in adjusting.”

   7)Mr. Lloyd says of the first quote at 5) above that it seems to indicate that the Tribunal was contemplating that he could go anywhere within the Ukraine and not work as a journalist and that he would be safe, and distinguishes this from the second quote at 6) above in that it and the subsequent two paragraphs are focused on the issue of relocation of and by itself.

   8)That in its “Findings and Reasons” the Tribunal found the applicant to be generally a credible witness. It accepted the bulk of the applicant's claims. It accepted that the applicant had been subjected to a systematic campaign of harassment with physical mistreatment which amounted to persecution for a Convention reason, but then found at CB 113.9 that, notwithstanding the possible requirements of registration, in the particular circumstances of this case, internal relocation is a realistic option for the applicant. Mr. Lloyd points to what he considers to be the critical part of the Tribunal's findings at CB 114:

   “While he may not be able to work as a journalist elsewhere in Ukraine I believe that he may be able to obtain work in the construction industry as he has done in Australia. I have already found that the chance of the applicant being arrested by the SBU upon his return to Ukraine is remote. I am also satisfied that he does not have an anti-government political profile generally in Ukraine and would not be of interest to authorities outside the Chernovtsky region.”

   He then links this to the sentence at CB 114.4:

   “Although the applicant received threatening telephone calls the thrust of these was to frighten or intimidate the Applicant into leaving journalism."

   Finally, Mr. Lloyd refers to the Tribunal summary at CB 114.6:

   “In summary I find that the applicant 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 Chernovtsky region, it is reasonable for the applicant to relocate elsewhere in Ukraine.”

8. Mr. Lloyd submitted that there are two readings of what the Tribunal has done in reaching this finding on relocation. The first is that the Tribunal's reasons should be read as a conclusion on the part of the Tribunal that if the applicant did not work in journalism he would not suffer any problem. That the Tribunal’s statement that while he may not be able to work as a journalist, meaning that he is not able to work as a journalist because if he did so he would be persecuted, should be read as the reason why he is not able to work as a journalist. Mr. Lloyd says that the Tribunal in the first place, did not therefore address the applicant's claim that he would work as a journalist even on an unpaid basis, and that the Tribunal had to address that claim and to consider the possibility that he would work as a journalist. Further, that the expression ‘that while he may not be able to work as a journalist’ does not amount to a rejection of his claim that he might work as a journalist. Mr. Lloyd further submitted that the significance of the relevant profession in this case, that is journalism, is not just an ability to subsist, but it in fact was his expression of political opinion and that a finding by the Tribunal that the applicant was expected to relocate and not work as a journalist was equivalent to expecting the applicant to give up his political expression and that this was an error on the part of the Tribunal. He relies on Wilcox and Madgwick JJ. in Sellamuthu v Minister for Immigration and Multiultural Affairs [1999] FCA 247 at [18] and [19] where their Honours said that all of the applicant’s substantial claims and information in support of these claims must be considered by a Tribunal and a failure to do so would amount to an error of law. He submits that in this case one of the applicant’s substantial claims was that he would work as a journalist and that the Tribunal should have gone on to consider whether the applicant had a well founded fear of being persecuted for engaging in the exact kind of conduct which had led him to being persecuted in his local area. Its failure to do so, submits Mr. Lloyd, is an error.

9. In relation to the issue of relocation Mr. Lloyd referred to the Full Federal Court authority in SKFB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 142 where the Court said at [13]:

   “We do not believe that the relocation principle requires a person to modify their beliefs or opinions or to hide the fact that they are of a certain racial national origin or member of a particular social group. The question is whether there is a real risk that the applicant for asylum would be persecuted for a Convention reason if required to return to his country of nationality. The question is concerned principally with the protection which can be given to the putative refugee by his own country: Minister for Immigration and Multicultural Affairs v Respondents v S152/2003 [2004] HCA 18. The application of the relocation principle enquiries whether the appellant is able to obtain that protection. That is to say, if the principle is applied that only means that the putative refugee is not at risk of persecution in his country of nationality. Nothing said by the High Court in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 78 ALJR 180 cuts across this principle.”

   Mr. Lloyd submitted that this supported his proposition that if the Tribunal was saying that if the applicant could relocate and not be a journalist and that in not being a journalist this was a bar to expressing his belief or opinion, that this is an error of the kind described by the Full Court because the relocation principle does not require someone to give up their opinion.

10. In the alternative, Mr. Lloyd submitted that where the Tribunal says the applicant may not be able to work as a journalist, it might be read that he might not be able to work as a journalist because he will be persecuted or harmed if he does so, and that this may be the reason why he is not able to do so. If that is the case, he submits that this would lead directly to a difficulty of the type as set out in S395 because, as contrary to what was put by the majority in that case, the Tribunal would be seen to be saying that it was requiring the applicant to give up his belief or opinion in order to be safe. Mr. Lloyd referred me to the judgment of McHugh and Kirby JJ at [43] of S395 and in particular:

    “The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality.”

    Mr. Lloyd submits that if this is what this Tribunal has done, that is, that it has said that the applicant is unable to be a journalist because he has been beaten in the past and because he has been persecuted, and that is the reason why he cannot be a journalist in the future, then this approach, which is the approach that Mr. Lloyd submits the Tribunal is taking at CB 101.5, is inconsistent with what the High Court has said in S395. Such an approach is also consistent with a failure of the part of the Tribunal to ask itself what would happen to the applicant if he did get a job as a journalist or if he did work as a journalist as he has claimed. The fact that the Tribunal has not asked itself those questions is an error. In this regard, Mr. Lloyd relied on the decision of Madgwick J. in Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 and in particular at [19] where His Honour held that it would constitute persecution of the person to be forced to give up their expression of political opinion. Mr. Lloyd particularly relied on paragraph [25]:

    “In light of the high degree of political commitment that the applicants claim to have demonstrated in the not so distant past (and even though some of their claims more recently to have been politically motivated in their actions were rejected), combined with the independent information considered by the Tribunal, their claim to have been persecuted on the basis of being denied the right to political expression was not only distinctly but also sufficiently raised by the written submission just referred to. The fact the applicants may have been persecuted in this way (if, for them, the denial of civil and political rights did amount to persecution) for some length of time before leaving Burma, or that they may have restrained themselves (if they did) from expressing themselves politically, in the face of grave risks, does not of itself undermine their claim to have been persecuted for being denied the right to free political speech.”

    In the case before me, Mr. Lloyd submits that the applicant had been working in the field of journalism for five years and that had the Tribunal reached the point that it took the view that the applicant would have to give up his political opinion, the Tribunal would therefore need to ask itself whether that in itself would constitute persecution. It did not ask itself that question, and that was an error on the part of the Tribunal.

1. Mr. Reilly’s submission for the Minister rests on the proposition that this Tribunal decision turned on whether the applicant could relocate to another part of the Ukraine. The parties agreed that there was no error in terms of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 [although Mr. Lloyd reserved the applicant’s position] and that the main difference between the two parties really turned on how the Tribunal's decision was to be read. Mr. Reilly's submission was that this did not require the applicant to cease work as a journalist, or to give up any political opinion or to do anything in particular except to relocate. Mr. Reilly submitted that when the matter was first pleaded that a breach of S395 was possible. But, that since the two Federal Court decisions in SKFB and NALZ v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 320, both authorities which he correctly asserted are binding on this Court, that any S395 problem as it related to the issue of relocation, had been clearly distinguished by these two subsequent full Federal Court authorities.

2. In NALZ the Full Federal Court at [46] said:

   “Two factors must be borne in mind in considering whether the rationale in S395/2002 applies equally to this proceeding. First, an assumption that appears to underlie the approach of the majority in S395/2002 is that, wherever the relevant conduct under consideration might occur in Bangladesh, the consequences would be the same. The possibility that, by relocating, the asylum seeker would be able to pursue his lifestyle in another part of the country, without fear of persecutory conduct did not arise. It has long been accepted that, if it is reasonable for an asylum seeker to relocate within his or her country of nationality and, by relocating, avoids the possibility of persecution, Australia will not owe protection obligations to such a person. Requiring an asylum seeker to relocate, in circumstances where it is reasonable to do so, does not involve the asylum seeker modifying beliefs or opinions or hiding membership of a particular social group if such beliefs, opinions or membership is the source of persecution: see SFKB v MIMIA [2004] FCAFC 142 at [12]-[13].”

   Both parties rely on SKFB at [13] to support their argument. Mr. Lloyd to support his argument that the Tribunal was in error to expect the applicant to relocate and modify his beliefs, and Mr. Reilly to support the proposition that requiring an asylum seeker to relocate where it is reasonable to do so does not involve relevantly, a modification of political belief. At issue then is how the Tribunal's decision is to be read, and in particular, what is the real meaning and import of the Tribunal's statement at CB 114.1: "While he may not be able to work as a journalist elsewhere in Ukraine..."

3. It is clear, as set out in the Tribunal's “Findings and Reasons” at CB 112.4 that the Tribunal accepted that the applicant had been subjected to systematic harassment and physical mistreatment which in the Tribunal's view did amount of persecution for the Convention reason of anti-government political views that were imputed to the applicant. It is also clear on a plain reading of the Tribunal's decision record, and in particular its “Findings and Reasons” from CB 109.9 to CB 112.4, that the finding was based on the Tribunal's examination of the applicant's claims about the harm that he suffered in his local area. With two exceptions, the Tribunal generally found the applicant to be a credible witness and accepted a number of key claims of the applicant in reaching this conclusion. In particular, and relating to his claims as a journalist, the Tribunal found that it was his work as a journalist in his local area and his publishing of newspaper articles critical of regional government that led to the harm that he faced from the local governor, the local administration and local police. Having made this finding the Tribunal then went on to look at the issue, as stated by the Tribunal itself at CB 112.5:

   “I have also considered whether there is a real chance that the applicant will be persecuted if he returns to the Ukraine in the foreseeable future."

   This is consistent with the understanding that the purpose of a nation state determining refugee status is to provide international protection in circumstances where protection to a refugee claimant is not available, including in another part of their country. Before deciding that an applicant is owed Australia’s protection, the Tribunal needs to be satisfied that an applicant cannot avail themselves of protection in their own country. It is clear that if a fear of persecution in one area of an applicant’s country is well founded, then the availability of protection in the rest of the country must be considered. This consideration of the reasonableness of relocation, does not of itself, require any modification of beliefs or opinions.  This is consistent with the Full Federal Court authorities referred to above that the question is whether there is a real risk that the applicant for asylum would be persecuted for a Convention reason if required to return to his country of nationality. The question is concerned principally with the protection which can be given to the putative refugee by his own country, which as the Full Federal Court said in SFKB and NALZ, is not inconsistent with what the High Court itself said in S152.

4. In looking at this issue the Tribunal first looked at the applicant's claim that local police had demanded a bribe with the threat that if not paid his “material” would be handed to the SBU, the national security organisation. The Tribunal did not accept, with reasons given, that such a demand was made by the local police and accordingly concluded that the chance of the applicant being arrested upon his return to Ukraine because of some interest by the SBU is higher than remote. These reasons were open to the Tribunal to make on the material before it, and nor do I understand the applicant through Mr. Lloyd to be challenging this part of the Tribunal's decision record. It is at CB 113.3 that the Tribunal focuses directly on the issue of the relocation. In this regard the Tribunal noted and found:

   1)The Tribunal noted that when the matter of relocation was raised by the applicant he did not suggest that he had any concern with the possibility of the SBU being able to locate him anywhere in Ukraine. (CB 113.3)

   2)That while police corruption is a major problem in the Ukraine, and that police corruption is inextricably bound up with organised crime, in the present case that even if a bribe had been demanded of the applicant then the Tribunal concluded that this in itself was no more than criminal behaviour and opportunism by local police and was not Convention related. (CB 113.4)

   3)The Tribunal, with reasons, did not accept that local police had passed on to the SBU the applicant's case file and noted ultimately that this claim was no more than “surmise” on the part of the applicant. (CB 113.5)

   4)That while it was possible to legally relocate in the Ukraine and find employment without registration, that registration was still unofficially required by many employers despite a recent ruling of the Ukrainian Constitutional Court. (CB 113.7)

   5)That notwithstanding the possible requirements of registration, that in the particular circumstances of the applicant's case internal relocation was a realistic option for the applicant. (CB 113.9) The Tribunal noted relevantly that the applicant had already shown himself to have the resilience and flexibility to resettle in Australia and find work in this country and that he was well educated.

   6)The Tribunal then made the critical comment that while he may not be able to work as a journalist elsewhere in Ukraine, it believed that he may be able to obtain work in the construction industry as he had done in Australia. (CB 114.1) I will return to this comment below.

   7)The Tribunal also went on to note that it had found that the chance of the applicant being arrested by the SBU upon his return to Ukraine remote, the import of this being that he did not have a national profile. It was also satisfied that he did not have an anti-government political profile generally in Ukraine and would not be of adverse interest to authorities outside the Chernovtsky region. (CB 114.2)

   8)The Tribunal then went on to specifically look at the issue of the chances of the applicant being pursued and targeted for serious harm elsewhere in the Ukraine by henchmen of the governor of his local region and found that such chances were remote. The Tribunal also made a reference (I will also return to this below)  to the finding that:

   “Although the applicant received threatening telephone calls the thrust of these was to frighten or intimidate the Applicant into leaving journalism" (CB 114.5)

   9)The Tribunal's summary is at CB 114.6. It found that the applicant had suffered persecution in the past for the Convention reason of his political opinion, however the Tribunal was satisfied that because the persecution he had suffered was localised to the Chernovtsky region, that it was reasonable for the applicant to relocate elsewhere in the Ukraine and accordingly was not satisfied that his fears of persecution upon his return to Ukraine were well founded.

5. The issue then is do the findings of the Tribunal and in particular,  does the comment at the top of CB 114 amount to, and be read as, a finding by the Tribunal that if the applicant did not work in journalism he would not suffer any problem, or in the alternative, should it be read that he might not be able to work as a journalist because he would be persecuted or harmed, and that this would be seen as an expectation on the part of the Tribunal that the applicant should give up his belief or his political opinion in order to be safe.

6. The applicant’s claims relating to his work as a journalist are set out in the attachment to his application for a protection visa at CB 27 and CB 28. While making a general assertion of economic difficulties in Ukraine and widespread corruption, his claims were clearly presented as working as a journalist for the newspaper “Chernovtsky City”, and his claims of difficulties arising from this work as a journalist were clearly in the context of the local governor of the regional administration and the problems with local police. While the applicant also submitted extracts from newspaper articles that showed difficulties that journalists faced in other parts of Ukraine, there was nothing in the applicant's application to say that he sought to work in any other part of Ukraine or that he had difficulties in doing so. In regard to the issue of journalists and corruption, the Tribunal at CB 111.9 accepted the applicant's assertion that the authorities interfere with news media by intimidating journalists and press journalists to apply self censorship. The Tribunal also noted at CB 112.1 other limitations placed on journalists in Ukraine. The Tribunal saw independent country material, as being consistent with what the applicant was saying and with material supplied by him, as supporting the applicant's contention of the difficulties that he faced with regional government officials who intimidated and threatened him with serious harm.

7. In his statement to the Tribunal at CB 53 to CB 56, while providing more detail, the applicant continues to assert the difficulties faced generally by journalists in Ukraine, but again links his particular difficulties to his local area, the local governor, and the local authorities. The one specific issue raised that took the fear of harm beyond his local area was that on one occasion he had been summoned to the local police station in May 2001 and was informed that his “material” had been classified as anti-state propaganda and had been forwarded to the SBU for further action. This issue of course was dealt with by the Tribunal which, with reasons, did not accept the applicant’s claims in this regard. Significantly, again on the issue of journalism outside his local area there is nothing to suggest that the applicant was claiming any difficulties or contemplating working outside his local area as a journalist, and the difficulties faced by journalists throughout Ukraine, was set as background to partly explain the difficulties that he faced locally.

8. In written material provided by the applicant to the Tribunal at the Tribunal hearing, the applicant again provided information showing that the government continued to interfere with news media by intimidating journalists and various accounts of action taken by the authorities in Ukraine against journalists, and with references, particularly at CB 74, to journalists being subjected to physical attacks that had been related to their professional activities. But again, the applicant's assertion about the situation for journalists in Ukraine is clearly linked to, and provided as the basis and partial explanation for the difficulties that he faced locally. There is nothing in the applicant's claims before the Tribunal to suggest that he faced any such difficulties outside of his local area.

9. The Tribunal's account of the hearing with the applicant is at CB 98.5 to CB 102.5. While this is of course the Tribunal's account of what happened at the hearing before it, I note, as Mr. Reilly for the respondent submitted, that the applicant, with the benefit of legal assistance, has not put before the Court any other evidence to contradict the Tribunal's account of what happened. The applicant’s claims at the hearing clearly centred on the difficulties that he faced in his local area and specifically how his work as a journalist brought him into conflict with the local governor and local administration over the issue of corruption. In emphasising that his difficulties sprang from his fight against the corruption of governor Bauer, the applicant at CB 100.5 is reported as saying that:

   “Colleagues had suggested to him that he should not be critical of the regional government. Everything had started with the public denouncement."

   In this context, at CB 101.5 the Tribunal records that at the hearing it put to the applicant that it seemed what the authorities were seeking to do was to stop him writing articles which were critical of the regional administration and governor Bauer, the regional president. The Tribunal then goes on to say that if he went back to Ukraine and got work outside journalism it seemed to the Tribunal that he would not be at risk of further mistreatment. The Tribunal also records that the applicant said he would always be a journalist. Mr. Reilly fairly submitted that that this paragraph, and in particular, the Tribunal’s noting that if he got work outside journalism that he would not be at risk of further mistreatment, appears to be “flirting” with an S395 type error.

10. Mr. Lloyd in part, relies on this notation by the Tribunal to ascribe meaning to the Tribunal's subsequent finding that in the context of relocation while the applicant may not be able to work as a journalist elsewhere in Ukraine, the Tribunal believed he would be able to obtain work in the construction industry and that this supports the interpretation that the Tribunal had the expectation that the applicant could or would avoid harm by not working as a journalist elsewhere in Ukraine. I do not accept that this connection can be made to support Mr. Lloyd’s proposed interpretation of what the Tribunal subsequently found:

    1)The Tribunal’s notation that if the applicant went back to Ukraine and got work outside journalism, is clearly a report of what was put to the applicant at the hearing with the Tribunal in the context of, and during a discussion about, the difficulties that he faced with the local administration and the writing of articles about the local administration. In this regard the connection is with the Tribunal’s subsequent finding, in its “Findings and Reasons”, that it accepted that the applicant, in relation to his local region, had been subjected to harassment and mistreatment which did amount to persecution for a Convention reason.

    2)It is clear that this notation was not a finding by the Tribunal but a reporting of what was said at the hearing with the applicant.

    3)It is clear that what was said was not put in the context of the applicant relocating and in that circumstance whether he could or would work as a journalist. The Tribunal's record of the hearing shows that it was not until later that the Tribunal raised the issue of relocation. (CB102.2) The Tribunal says, after asking the applicant if there was anything further that he wished to put to the Tribunal before ending the hearing, that the applicant responded that he had “adopted Australia” and was working here in construction as a painter. The Tribunal then says:

    “At this point I raised with the applicant the possibility of his relocating elsewhere in Ukraine. The applicant said there were problems for him in relocating. He had been born and raised and spent all his life in and when he went back in would think about this town he would have difficulty adjusting.” (CB 102.2)

    From the Tribunal's account it was the applicant's comment about Australia, put towards the end of the hearing, that triggered the Tribunal's question about the possibility of relocating elsewhere in Ukraine. There is nothing in the Tribunal's record, nor any other material, to show that the Tribunal had relocation in mind when it made the comment about working outside journalism if he were to return.

    4)The applicant's reported statement that he would always be a journalist was also clearly put in the context of his returning to his local area. This is reinforced at CB 101.6 where following the applicant’s reported statement where he said that he would always be a journalist, the Tribunal records that the applicant said that if he were to go back to Ukraine when his friends saw him they would realise he was the person who started all the trouble for them in the region. The unchallenged account of what happened at the hearing with the Tribunal shows the applicant saying that he would always be a journalist. But just as clearly, this is in the context of him returning to his local region. The statement appears in the middle of a discussion about the difficulties with the regional authorities and is clearly seen by the applicant as being put in the context of what his friends would say and the trouble that he caused for them in his region. This is reinforced further by the Tribunal's unchallenged account that the issue of relocation did not arise until just before the end of the hearing and that it arose as a result of the applicant's comments about Australia and his work in Australia as a painter.

11. It is clear that in its presentation of what happened at the hearing before it, and in its “Findings and Reasons”, the Tribunal saw the difficulties that the applicant claimed to have faced in his local area as being one set of issues, and that the issue of relocation and the reasonableness of relocation as being a separate issue. In accepting that the applicant had been subjected to treatment which did amount of persecution for a Convention reason the Tribunal then turned to look at the issue of a real chance of persecution if he returned to the Ukraine in the foreseeable future. In looking at the issue of relocation it dealt with the possibility that he may not be able to work as a journalist elsewhere in the Ukraine by saying that he would nonetheless be able to obtain other work as he had done in Australia. In context, and on a plain reading of what the Tribunal has said, the Tribunal's wording leaves open the possibility, even if remote, that the applicant would or could (“may not”) obtain work as a journalist. It is clear that the Tribunal was properly looking at the reasonableness of relocation. In applying the “reasonableness” test as set out in the Full Federal Court decision in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437, the Tribunal looked at the issue of employment. I do not accept that in doing so the Tribunal, as Mr. Lloyd submitted, when stating that while he may not be able to work as a journalist, could in the circumstances be interpreted as meaning that he is not able to work as a journalist. Nor do I see it as meaning that that the applicant could relocate by not being a journalist and that this would be a bar to expressing his belief or opinion.

1. In relation to the issue of whether the Tribunal dealt with the applicant's claims as put by the applicant, that is, as articulated by the applicant or arising from what was articulated by the applicant, particularly in relation to the issue of working as a journalist elsewhere in Ukraine, it is clear that the applicant's claims were focused on his work as a journalist in his local region. While the applicant made reference in the written material before the Tribunal to the issue of corruption generally in Ukraine and to the issue of journalists in other areas being subject to harm, in relation to the applicant himself there was no suggestion that he saw himself as operating outside of his local region. The applicant’s claim that he would always be a journalist was clearly put to the Tribunal in the context of a discussion of what had happened to him in his local area and what would happen to him if he were to return to his local area. It is significant that the applicant's own answer (as reported by the Tribunal) to the Tribunal about the possibility of his relocating elsewhere in Ukraine makes no mention of any difficulty as working as a journalist elsewhere in Ukraine. In fact, there is no mention of journalism at all. The applicant's claim that there were problems for him in relocating remains a general statement qualified only by his reported statement that he had been born and raised and spent all his life in Chernovtsky, and that when he went back would think about this town, and that he would have difficulty in adjusting. (CB102.2) The applicant has not brought forward any evidence to show that he made any mention at this critical point of the difficulties that he would face working as a journalist in another part of Ukraine. The Tribunal clearly dealt with the applicant's claims as put in relation to journalism. The applicant claimed difficulties working as a journalist combating corruption in his local area, and the Tribunal accepted that, and made a finding positive to the applicant in that regard. Despite opportunity, there is nothing before me to show that the applicant asserted that he would continue to work as a journalist elsewhere in the Ukraine. The comment that he would always a work as a journalist was clearly put in the context of returning to his local region. From the material before me, it would require a number of a lengthening steps to tie the applicant’s claim that he would always be a journalist, which was put in the context of his return to his local region, to the applicant moving to another region, then starting to criticise either the local or the national authorities in this other region of Ukraine, (assuming as Mr. Reilly put that he would find something to criticise) which in turn would result in persecution by either local or national authorities in this other region. The applicant has clearly not articulated his claims in this way, nor is there sufficient to say that these possibilities arise from the circumstances in the applicants case that would have caused the Tribunal to have looked at this issue to the degree now put forward by Mr. Lloyd. But in any event, the Tribunal did look at the possibility of work as a journalist elsewhere in Ukraine, and that while finding that the applicant may not be able to work as a journalist elsewhere. The use of the word “may” clearly implies the possibility that the potential to work as a journalist was still alive but that in any event, in the context of relocation, as one relevant factor, he may be able to obtain work in the construction industry.

2. The applicant further alleges that the Tribunal failed to consider the issue of whether the applicant would be persecuted because of his inability to work as a journalist and the resulting suppression of his right to free speech. In this regard the applicant relies on Win v Minister for Immigration and Multicultural and Indigenous Affairs [2001] FCA 132 where Madgwick J. considered a situation as to whether a Tribunal failed to consider whether restrictions on free expression of political opinion may amount to persecution in itself. Analogous to the situation before me, as presented by Mr. Lloyd his Honour found in that case that although the primary claim that was argued before the Tribunal, dealing with a range of overt political activities, was dealt with by the Tribunal, there was nonetheless what was described as a subsidiary claim, that is, persecution by denial of political freedom, which had nonetheless been sufficiently raised before the Tribunal, and that there was nothing to suggest before his Honour that the subsidiary claim that had been stated in the application was not pressed by the applicants. In that case his Honour found that the claim to have been persecuted on the basis of being denied the right to political expression was not only distinctly, but also sufficiently, raised by the written submissions that the applicants had made [25]. In that case the Tribunal accepted that free expression of political opinion was not tolerated by the Burmese government and that those actually undertaking such expression were subject to persecution. His Honour found that in those circumstances that the Tribunal did not appreciate that, accordingly it was required to consider whether if the applicants returned to their country of origin they would face persecution by the very denial to them of the right to free political expression. The circumstances before me however, can be distinguished:

   1)In relation to the issue of the Tribunal being required to consider claims arising on the material before it, the respondent referred me to NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263 as binding authority for the proposition, that the test based on relevant authorities, is that the Tribunal only has to consider an unarticulated claim if it is clearly raised on the material before it. At [68] the Full Court stated:

   “Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.”

   Unlike the case of Win there is nothing in the case before me to show that the applicant made any claim that the inability to find work as a journalist in itself amounted to suppression of his right to free speech, and that this would be persecution. The applicant never asserted that he would be unable to find work as a journalist outside of his region. While there were circumstances arising from what the applicant had said, that showed that he would have this difficulty in his local region, for example, he had been dismissed from the newspaper for which he worked, no such difficulty of obtaining employment as a journalist elsewhere in Ukraine was raised by the applicant either expressly or implicitly. Clearly, as I have said, his statement that he would always be a journalist was related to his local region and there is nothing before me to show that the Tribunal was faced with a situation where the applicant was saying that he was prevented from working as a journalist elsewhere in Ukraine (even if it could be said by implication that after finding work as a journalist he may remotely, be treated in the same fashion as some of the other journalists) let alone that this barrier amounted to a suppression of his right to free speech outside of his local region. Further, I cannot see in the circumstances as presented by the applicant that any claim as now asserted, might have been seen as arising from those circumstances. It is these circumstances that are relevant to this test. Interpretations of what the Tribunal may have said in a different context do not in my view amount to circumstances put by the applicant or arising out of what the applicant said. The applicant himself did not assert that he could not, or would not, be able to find work as a journalist in other parts of Ukraine.

   2)Further this argument, as Mr. Reilly submitted, does rely on reading the Tribunal's statement at CB 114.1 that the applicant may not be able to work as a journalist elsewhere in Ukraine, as again being a finding by the Tribunal that the applicant could not or should not be able to work as a journalist elsewhere. As I have set out above, this is not a fair reading of what the Tribunal actually said in the context of considering relocation. In evaluating a variety of factors the Tribunal noted that while the applicant may not be able to work as a journalist he could find other work. Unlike the circumstances in Win the applicant before me is not able to show that he put before the Tribunal either expressly or implicitly from circumstances arising from what he did put, that he was prevented from working as a journalist elsewhere in Ukraine. The fact that he may encounter difficulties in working as a journalist elsewhere in the Ukraine in the same way that other journalists have faced difficulties is far too remote and not made out from what the applicant has put to the Tribunal, which it must again be emphasised centred around his fighting corruption in his local area. The threshold issue of not being able to find work as a journalist elsewhere was not raised by the applicant, and was raised by the Tribunal in canvassing the range of options that may be available to the applicant in the context of relocation. This was part of its required analysis of the reasonableness of relocation in assessing the applicant’s real chance of persecution if he returned to Ukraine in the foreseeable future. This is the question that the Tribunal correctly identified for itself at CB 112.5 and which it answered by saying that internal relocation was a realistic option open to the applicant. Clearly the Tribunal was not required to consider a claim not expressly or impliedly raised as a result of circumstances as put forward by the applicant.

3. The complaints made by the applicant now are not made out for the reasons given above. The Tribunal's decision is a privitive clause decision within s.474 of the Act. The application is accordingly dismissed.

I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate:  Sybilla Waring-Lambert

Date:  1 August 2005