SZBKQ and Anor v Minister For Immigration and Anor (No.2)
[2005] FMCA 717
•10 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZBKQ & ANOR v MINISTER FOR IMMIGRATION & ANOR (No.2) | [2005] FMCA 717 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Ukraine as a Roma – finding by RRT that applicant not readily identifiable as Roma and finding that she could relocate to avoid the risk of persecution – RRT erred in its application of relocation principles and failed to consider whether the applicant could obtain meaningful State protection from the actions of Roma criminals. |
| Appellant S395/2002 v Minister for Immigration (2003) 203 ALR 112 Applicant NABD of 2002 v Minister for Immigration [2005] HCA 29 Minister for Immigration v Khawar (2002) 210 CLR 1 NAEB v Minister for Immigration [2004] FCA 79 NAHW v Minister for Immigration [2004] FCA 399 Randhawa v Minister for Immigration (1994) 52 FCR 437 SAAP v Minister for Immigration [2005] HCA 24 SZAXC v Minister for Immigration [2005] FCA 451 SZBKQ & Anor v Minister for Immigration (No 1) [2005] FMCA 713 VFAC v Minister for Immigration [2004] FCA 367 |
First Applicant: Second Applicant: | SZBKQ SZGLH |
| First Respondent: Second Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1870 of 2003 |
| Judgment of: | Driver FM |
| Hearing date: | 26 May 2005 |
| Delivered at: | Sydney |
| Delivered on: | 10 June 2005 |
REPRESENTATION
| Solicitors for the Applicant: | Mr M Jones Michael Jones, solicitor |
| Counsel for the Respondent: | Mr R Bromwich |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The Refugee Review Tribunal be joined as the second respondent to the proceedings.
A writ of certiorari shall issue, removing the record of the Refugee Review Tribunal proceeding into this Court, for the purpose of quashing the decision handed down on 29 January 2003.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the protection visa application according to law.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1870 of 2003
| SZBKQ |
First Applicant
SZGLH
Second Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REFUGEE REVIEW TRIBUNAL
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) completed on 31 December 2002 and handed down on 29 January 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant and her husband protection visas. Although only the applicant wife was named as a party to the judicial review application filed on 11 September 2003 in this Court,
I gave leave today for her husband to be joined as the second applicant.
I adopt as background the following material from written submissions prepared on behalf of the Minister by Mr Bromwich:
On 17 January 2001, the applicant and her husband (the second applicant), citizens of Ukraine, arrived in Australia. On 12 April 2001, they lodged an application for protection (class XA) visas (court book, page 1). On 14 June 2001, a delegate of the respondent refused to grant them protection visas (court book, page 38). On 11 July 2001, the applicants applied for a review of that decision by the RRT (court book, page 45).
The case for the applicant and her husband turned on her membership of [the] ethnic gypsy group, known as Roma (court book, pages 17-20). She made claims about mistreatment she had suffered in the past, as detailed below. In particular, she claimed that she had “a typical Roma appearance” (court book, pages 17.8, 81.5). …
On 29 January 2003, the RRT handed down a decision made on 31 December 2002, affirming the decision of the delegate to refuse the grant of protection visas (court book, page 77). In reaching this decision, the RRT accepted that the applicant was ethnically Roma (court book, page 86.4) but, as clearly foreshadowed at the RRT hearing on 26 September 2002, did not accept her claim that she had “a typical Roma appearance” (court book, page 87.7). During the hearing the RRT member pointed out to the applicant that she had pale, even pallid skin and a generally European-looking face (court book, page 82.5). …
The applicant referred to [several] circumstances by which she said she had been persecuted in the past. The first related to social matters, including an inability to go to clubs and being accused of theft at a technical college (court book, page 82.6). The RRT was prepared to accept those claims, it seems because she was known to be Roma in her home town and not because of her appearance, but considered that, taken cumulatively, the lamentable harassment she had suffered was not sufficiently serious to amount to Convention-based persecution (court book, page 87.1). …
The second incident by which the applicant referred to the past and made claims as to the future concerned a claim to have been gang-raped in April 2000 by three Roma men, who also tried to oblige her to become a prostitute or beg for them (court book, pages 82.8–82.3). The RRT was prepared to accept the claims and, while noting the experience must have been horrendous, found that the essential and significant motivation of the rapists was to exploit her opportunistically and criminally for their financial gain. They came from the same community as her and of the same ethnic background. The RRT found there was no Convention nexus involved. (court book, page 87.3). …
The presiding member rejected a further claim by the applicant that Roma clans would force her to work on pain of death, both because he did not believe it, and because he did not consider that the harm was Convention related (for the same reason as the rape claim was found not to be Convention related).
The applicant further claimed to be unable to obtain other work because of her Roma ethnicity. The presiding member accepted that that harm constituted persecution for the purposes of the Convention, but found that, as the applicant was not readily recognisable as Roma, the applicant could relocate to Kiev to avoid the harm, as she was not known there.
The applicant lastly claimed to have been mistreated by the police because of her ethnicity. The presiding member rejected that claim on the basis that the applicant did not look like Roma, although he did accept that the applicant had been harassed in her home village, where she was known to be Roma.
The application
The matter proceeded on the basis of an amended application filed on 18 June 2004. On the day of the hearing of that amended application on 26 May 2005 I declined to grant leave for that application to be further amended to add a ground seeking to take advantage of the decision of the High Court in SAAP v Minister for Immigration [2005] HCA 24[1].
[1] SZBKQ & Anor v Minister for Immigration (No 1) [2005] FMCA 713
The amended application raises the following grounds:
a)The RRT failed to exercise its jurisdiction by holding that the first applicant could avoid persecution based on her ethnicity because, it found, she did not conform to a physical stereotype of people of Roma descent. The RRT failed to take into account the possibility that her ethnicity would become known in other ways, and failed to consider that pressure brought to bear on her to deny or hide her ethnic background could in itself amount to persecution;
b)the RRT failed to exercise its jurisdiction by not giving any consideration to, or not understanding, the relevance in Convention terms, of a substantial aspect of the first applicant’s claims. The first applicant stated that she feared harm from powerful criminal elements within the Roma community who wished for force her into prostitution, and that the Ukraine police would refuse her protection from those elements because of her, and their, ethnicity. The RRT failed to consider whether the denial of State protection based on ethnicity amounted to a claim covered by the Convention.
Submissions
Both Mr Jones, for the applicant, and Mr Bromwich, for the Minister, presented written and oral submissions. The first ground is dealt with by Mr Jones in paragraphs 4-12 of his written submissions. Essentially, Mr Jones submits that the RRT fell into error in dividing members of the Roma ethnic group into those with “typical” Roma features and those without such typical features. Further, he submits that the RRT fell into error by finding that the applicant could avoid a risk of persecution by modifying her behaviour to conceal her ethnicity. In this contention Mr Jones seeks to draw support from the decision of the High Court in Appellant S395/2002 v Minister for Immigration (2003) 203 ALR 112, in particular at [43] and [82]. I note, at this point that, unknown to me and the representatives, the High Court dealt with its earlier decision in S395 on 26 May 2005 in Applicant NABD of 2002 v Minister for Immigration [2005] HCA 29. I have taken that decision into account in making my decision in this matter but I do not think that the High Court decision in NABD detracts in a material way from the principle that Mr Jones seeks to draw from the decision in Appellant S395.
Mr Bromwich submits that the present case is readily distinguishable from Appellant S395. He submits that the RRT in this case did not divide Roma into discrete or non discrete categories or impose any requirement that the first applicant act discretely. Rather, the RRT was making a necessary prediction as to what would happen in the future if the applicant relocated from her home village to Kiev. He submits that the RRT was not seeking to impose on the applicant any modification to her lifestyle or behaviour but was simply dealing with the anticipated risk that would be faced by the applicant should she relocate. Mr Bromwich draws attention to the interpretation of the decision in Appellant S395 by the Full Federal Court in NAEB v Minister for Immigration [2004] FCA 79 at [23]-[24][2] and the single judge decisions of the Federal Court in VFAC v Minister for Immigration [2004] FCA 367 at [32] and NAHW v Minister for Immigration [2004] FCA 399 at [26]-[28].
[2] special leave to appeal was refused by the High Court on 4 March 2003
Mr Bromwich points out that the applicant had not suggested that in the past she had had to deny or hide her ethnic background and it was not part of the RRT’s reasoning that she would need to do so in the future. Mr Bromwich submits that it was an essential part of the applicant’s claims that because she looked like Roma she would be treated like Roma. Thus her claims were heavily dependent on being identified as Roma by her appearance alone. There was never any suggestion of hiding her appearance and there was never any suggestion on the part of the RRT that she be required to be discreet in any way. The presiding member found that the applicant did not have typical Roma features and that she therefore would not be targeted if she relocated to a place where her Roma ethnicity was not known. Mr Bromwich further submits that, on the basis of the material before the RRT, the only means of identification of the applicant’s Roma ethnicity, apart from her appearance, was her birth certificate. In the circumstances, the risk of her being identified and targeted as Roma in a location where she was not known was minimal.
The second ground in the amended application is dealt with by Mr Jones in paragraphs 13 and 14 of his written submissions. He submits that the RRT misunderstood and constructively failed to consider the element of the applicant’s claims based upon her exploitation by Roma criminal elements. He submits that the RRT erred in focusing on the motivation of her persecutors rather than the inability or unwillingness of the State to protect the applicant from the harm inflicted upon her by criminal elements.
Mr Bromwich deals with this second aspect of the application in paragraphs 23-27 of his written submissions. He notes that this ground seeks to draw support from the decision of the High Court in Minister for Immigration v Khawar (2002) 210 CLR 1. Mr Bromwich acknowledges that Khawar is authority for the proposition that the withholding of protection from persecution for a Convention reason may support a claim for refugee status, even if the acts of persecution are not themselves motivated by a Convention reason. He further acknowledges that the RRT did not consider, in terms, whether protection might be withheld from the applicant for a Convention reason. He says however that the issue was addressed by the RRT in its adverse finding as to her Roma appearance. That is, because the applicant did not have Roma appearance there was no reason put forward for her to be regarded as Roma and to be disbelieved for that reason. In those circumstances, Mr Bromwich submits that protection was not liable to be withheld for a Convention reason and Khawar can be distinguished.
Secondly, Mr Bromwich submits that Khawar was concerned with country-wide withholding of protection to women at risk of domestic violence, such that no issue of relocation arose. By contrast, in this case, he submits that once the applicant’s claim to have a typical Roma appearance was not accepted, there was no reason why she could not relocate. This is an alternative reason as to why the ratio in Khawar does not apply. Mr Bromwich further submits that the applicant did not contend before the RRT that the Ukrainian authorities actually failed to protect her because she was Roma. The applicant asserted that she did not seek protection because she was Roma and that she would not be believed for this reason, but this in turn depended upon her being seen as being Roma and the RRT did not accept that this was the case.
Finally, Mr Bromwich notes that the applicant did not contend that the sexual assault that she endured would not be investigated because her assailants were Roma.
Reasoning
As was pointed out by Sackville J in his obiter observations in SZAXC v Minister for Immigration [2005] FCA 451 at [18]-[20] there is considerable danger in decision makers seeking to resolve claims of persecution by reference to views as to the typical appearance of members of a particular ethnic group. In the present case, the presiding member relied upon his own observation of the applicant[3], his own experience[4] and country information[5]. The relevant conclusion drawn by the presiding member is set out on page 88 of the court book. He said:
As earlier stated, I do not dispute that [the applicant] is Roma. What I am addressing is her alluding in her claims to a physical stereotype. The stereotype is central to her claims regarding her future. I do not dispute the existence of such a stereotype. What I do not accept is her claim that she physically conforms to it.
I therefore consider that she could reasonably relocate to another centre, such as the capital, Kiev where her brother lives. She is young, reasonably well-educated and has a profession. Her husband is likewise young and mobile. They have demonstrated a willingness and capacity to move and begin their lives afresh in coming to Australia, a country far removed culturally from their own. I am satisfied that the applicants would not have undue difficulty in finding work and new lives if they relocate within Ukraine.
[3] court book, page 82
[4] court book, pages 87-88
[5] court book, pages 85 and 88
The presiding member accepted that the applicant is Roma and that she had suffered harm in her home village because of her being known to be Roma[6]. In particular, he apparently accepted that she had been persecuted by the denial of employment, and had been harassed. The presiding member reasoned that the applicant could avoid that risk of harm through relocation to Kiev where she was not known and where her Roma ethnicity would not be apparent. It follows from the presiding member’s reasoning that he did divide Roma into those with stereotypical Roma features and those without such features. He placed the applicant in the latter category. He reasoned that because she fell into the latter category the applicant would not be targeted as Roma in a locality where her ethnicity was not already known.
[6] court book, page 88
I accept Mr Bromwich’s submission that the ratio in Appellant S395 is the impermissible assumption that an applicant can be expected to avoid the risk of persecution by modification of his or her behaviour. The categorisation of a class into sub classes is not of itself indicative of any error, let alone any jurisdictional error. In my view, and as I pointed out to the representatives at the hearing on 26 May 2005, the difficulty with this decision of the RRT is not so much that the presiding member expected the applicant to modify her behaviour as a Roma, but that he expected her to conceal her ethnicity through relocation. In this regard, it is important to note that the country information before the RRT showed that there was significant State based harassment of Roma in Ukraine. While that mistreatment was particularly prevalent in the Transcarpathian region of Ukraine[7], the available information did not indicate that that risk of harm was absent in Kiev or any other part of Ukraine. The country information before the RRT also indicated that the Ukrainian State was unwilling or unable to afford effective State protection to Roma and that that inability or unwillingness was not geographically limited[8].
[7] court book, page 85
[8] court book, page 85
In these circumstances, I take the view that the RRT fell into error in dealing with the issue of relocation. The leading authority on that issue is Randhawa v Minister for Immigration (1994) 52 FCR 437. The ratio of that case is that although the Convention definition of “refugee” does not refer to parts or regions of the 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 the real protection of their country of nationality elsewhere within that country. Further, if it is not reasonable in the circumstances to expect a person who has a well-founded fear of persecution in relation to the part of the country from which he or she has fled to relocate to another part of the country of nationality, it may be said that, in the relevant sense, the person’s fear of persecution in relation to that country as a whole is well-founded. On pages 442 and 450 of the reported judgment Black CJ and Beaumont J referred with approval to the following passage from Professor Hathaway:
The logic of the internal protection principle must, however, be recognized to flow from the absence of a need for asylum abroad. It should be restricted in its application to persons who can genuinely access domestic protection, and for whom the reality of protection is meaningful. In situations where, for example, financial, logistical, or other barriers prevent the claimant from reaching internal safety; where the quality of internal protection fails to meet basic norms of civil, political, and socio-economic human rights; or where internal safety is otherwise illusory or unpredictable, state accountability for the harm is established and refugee status is appropriately recognized.
In the present case it was unreasonable for the presiding member to expect that the applicant could relocate to Kiev because the quality of State protection available there was not necessarily any better than the quality of the State protection that was available in her home village. The presiding member reasoned that the applicant could avoid the risk of harm through not being detected. In adopting that reasoning the presiding member asked himself the wrong question. The question was not whether the applicant could avoid the risk of persecution through relocating and escaping detection by non state agents or a persecutory state; the question was whether the applicant, through relocation, could access meaningful State protection from the acknowledged risk of persecution she confronted in her home village. By asking himself the wrong question, the presiding member constructively failed to consider a fundamental aspect of the first applicant’s claims. Further, the presiding member failed to consider whether relocation was in reality meaningful in circumstances where the applicant, if detected as Roma, could not expect to receive State protection, and where the risk of being detected was subject to chance. The RRT’s error was a jurisdictional error and in itself warrants the provision of relief in the form of constitutional writs.
The RRT also fell into error in dealing with the applicant’s claims about her fear of harm from members of her own ethnic group. The presiding member accepted that the applicant had been raped by Roma criminals but found that:
The essential and significant motivation of the rapists was to opportunistically exploit her criminally for their financial gain.[9]
[9] court book, page 87
This finding overlooks the fact that the rapists probably were only able to exploit the applicant because she was Roma, as were they. That, however, goes to the merits of the decision. Of legal significance is the failure by the RRT to deal with the issue of the availability of State protection. As the Minister has conceded, the High Court’s decision in Khawar establishes that a person may be a refugee even if the acts of persecution suffered by the person are not themselves motivated by a Convention reason. The applicant claimed that she could not seek the protection of the Ukrainian authorities because the Ukrainian police had themselves harassed her because she was Roma and she had no confidence in the police as a result. The applicant also claimed that the police would not deal with criminal acts committed against Roma. The applicant’s claims were supported by the country information upon which the RRT relied. The US State Department report quoted by the presiding member on page 85 of the court book stated that:
Roma continued to be subject to violence and abuse by police, particularly in the Transcarpathian region…. Police also harassed and abused dark-skinned persons. Representatives of these group claim that police officials routinely ignored, and sometimes abetted, violence against them. … Human rights groups reported that they continued to receive complaints from Roma in the Transcarpathian region regarding arbitrary detention and physical harassment by the police.
The DFAT report also referred to by the presiding member on page 85 of the court book contains the following damning indictment of the quality of State protection available in Ukraine to Roma:
The State usually does not interfere with problems of mistreatment of Gypsies, although it always takes the side of non-Gypsies where the problem is too serious to be simply ignored.
The presiding member did not accept that the applicant had been harassed by the Ukrainian police because she did not look like Roma. However, he did accept that the applicant had been harassed in her home village where she was known to be Roma, and this would logically extend to the police in the area where she was known. Mr Bromwich points out that the RRT did not consider, in terms, whether protection might be withheld from the applicant for a Convention reason. This was addressed indirectly by the presiding member in his adverse finding about the applicant’s appearance. That, of course, was only a finding of any relevance in respect of areas of Ukraine away from the locality where the applicant lived and was known to be Roma. In my view, the combination of the presiding member’s reasoning, and the country information upon which he relied, points to no available conclusion other than that the applicant could not expect to receive State protection if she was known to be Roma and suffered serious harm at the hands of Roma criminals.
I reject Mr Bromwich’s submission that Khawar is distinguishable simply because the presiding member found that the applicant did not have Roma appearance. To the extent that the presiding member considered the availability of State protection at all, the material before him appeared to establish that State protection would be unavailable to persons identified as Roma. The presiding member’s reasoning depended upon the applicant not being detected as Roma. The presiding member did not direct his attention to the need to consider the availability of State protection in circumstances where the applicant was found to have suffered serious harm at the hands of Roma criminals for a non Convention reason. If the presiding member had directed his attention to that issue he would have had to grapple with the question of how the applicant could have sought protection from the Ukrainian police against the actions of Roma criminals, without revealing her own ethnicity.
This was a constructive failure on the part of the RRT to consider this element of the applicant’s claims.
Mr Bromwich also submits that the RRT decision is not invalidated by the failure to address the issue in Khawar because of the relocation finding. On that view, the applicant could avoid the risk of harm from Roma criminals by relocating and so would not need to seek State protection. I also reject that submission. I have already found that the relocation finding was itself vitiated by error. It cannot in those circumstances be used to sustain the RRT decision concerning the harm suffered by the applicant at the hands of her own ethnic group.
I will grant the relief in the form of the constitutional writs of certiorari and mandamus. The RRT must be joined as a party[10]. I will hear the parties as to costs.
[10] SAAP v Minister for Immigration [2005] HCA 24
I certify that the preceding twenty-six (26) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 June 2005
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