SZKDY v Minister for Immigration
[2007] FMCA 1038
•4 July 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZKDY & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 1038 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Tribunal erred in its conclusions with regards relocation. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC at 37 Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 277 |
| First Applicant: | SZKDY |
| Second Applicant: | SZKDZ |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG386 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 July 2007 |
| Date of last submission: | 4 July 2007 |
| Delivered at: | Sydney |
| Delivered on: | 4 July 2007 |
REPRESENTATION
| Applicants appeared on their own behalves. |
| Counsel for the Respondent: | Mr J. Smith |
| Solicitors for the Respondent: | Ms H. Blackman, Blake Dawson Waldron |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG386 of 2007
| SZKDY |
First Applicant
| SZKDZ |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal (“the Tribunal”) dated 22 December 2006 and handed down on 11 January 2007.
The first applicant was born on 9 July 1975 and is from Bulgaria (“the Applicant”). The second applicant is the partner of the Applicant and is also from Bulgaria (“the Second Applicant”).
On 7 June 2006 both the applicants arrived in Australia, having legally departed from Sofia International Airport on passports issued in their own names and visas issued on 8 May 2006 in Greece.
On 21 June 2006, the applicants lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs (“the Department”) under the Act.
In her protection visa application, the Applicant claimed that she feared persecution by her allegedly abusive ex-husband who she claims beat her over many years and threatened her and her new partner, the Second Applicant. She claimed that when she had appealed to the Bulgarian police for help in relation to beatings before meeting the Second Applicant “they said that they don’t deal with domestic disputes”. The Applicant has two children with her ex-husband who are living with him.
In his protection visa application the Second Applicant claimed a fear of harm from the Applicant’s ex-husband arising out of his relationship with the Applicant and a lack of protection by the Bulgarian authorities.
On 10 August 2006, a delegate of the First Respondent (“the Delegate”) refused the applicants’ applications for protection visas on the basis that the applicants are not people to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol (“the Convention”).
On 7 September 2006, the applicants lodged an application for review of the Delegate’s decision by the Tribunal. The applicants’ advisor attached wrote a submission which accompanied the application for review expanding on the claims in the protection visa application and making various claims regarding the rights of, and support infrastructure for, women in Bulgaria as well as claiming that the Delegate’s decision did not give sufficient weight to the statutory declaration that had accompanied the protection visa application.
On 22 December 2006, the Tribunal affirmed the decision of the Delegate not to grant protection visas.
On 7 February 2007, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia has protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.
The Tribunal proceeding
On 4 October 2006 the Tribunal invited the applicants to come to a hearing on 9 November 2006.
On 8 November 2006 the Tribunal received submissions from the applicants which expanded on the claims made in their protection visa applications. The submissions written by the applicants’ agent accompanying the application for review addressed the following:
a)The chronology of the Applicant’s claims of persecution;
b)The relationship between the Applicant and her ex-husband;
c)The Applicant’s work and travel history;
d)The Applicant’s relationship with her children and their being placed in the custody of the ex-husband;
e)The availability of information, law enforcement resources and state protection for women who are victims of domestic violence in Bulgaria and the likely impact of new laws regarding domestic violence; and
f)A request for extra time in which to provide “a translation of her decree nisi, a psychological assessment from the Red Cross; possibly a medical certificate from the hospital in Shumen relating to her treatment for her injuries from domestic violence.”
The Tribunal noted that it had before it the Department’s file, the Delegate’s decision record and other materials available to it from a range of sources as well as the application for review.
Both applicants gave oral evidence before the Tribunal on 9 November 2006 at which they expanded upon their written claims. The Tribunal explored further with the applicants their claims as well as the possibility of relocation within Bulgaria.
In relation to relocation within Bulgaria the Tribunal received further submissions from the applicants on 23 November 2006. The applicants claimed that, with regards relocation within Bulgaria, the sale of the Second Applicant’s house would be sabotaged by the Applicant’s ex-husband causing them to be “in a dire financial situation”. The applicants also addressed the issues of whether or not the applicants belonged to particular social groups within the meaning of the Convention and whether the applicants could access internal protection.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“4. The Tribunal accepted the applicant’s claims concerning the domestic violence suffered at the hands of her ex-husband and the threats made by him. It also accepted that the ex-husband would continue to behave in the future as he had done in the past and that the police would not protect them in the town where they had lived. However, the Tribunal found that it was reasonable in all the circumstances for the applicants to relocated to another part of Bulgaria and that, if they did, there was no real chance that they would be harmed by the ex-husband.
5. The Tribunal also found that the applicant would not face any social stigma in other parts of Bulgaria because she was divorced and had left her children.”
The proceeding before this Court
The applicants were unrepresented before this Court although had the assistance of a Bulgarian interpreter. I note that the applicants have also participated in the Panel Advice Scheme.
The Applicant made submissions on behalf of both applicants and confirmed that they relied on the grounds identified in their application filed on 7 February 2007. Those grounds are expressed to be as follows:
“1. The Refugee Review Tribunal (the Tribunal) accepted the suffering of the applicant and misunderstood the law as well as fell into jurisdictional error by considering that the applicant can reasonably relocate within Bulgaria.
2. The Tribunal erred in law by concluding that the applicant can live safely in relocating in Bulgaria and erred in law by assuming that the ex-husband will not follow the applicant to another part of Bulgaria.
3. The Tribunal’s view about the applicant, her suffering, her relationship with the children, her desire to see the children regularly are seriously traumatic and unreasonable to stay in a country which cannot offer protection.
4. The Tribunal while accepting fear of persecution by reason of membership of a particular social group and accepting the existence of persecution, the Tribunal erred that anywhere else in Bulgaria is possible and prevent the perpetrator’s harassment and persecution which would harm the applicant for convention reason.
5. The applicant will provide further information upon obtaining copy of the documents.
6. The Tribunal denying the applicant a genuine fear of persecution and the conclusion it reached in spite of the evidence given and the oversight of the subjective fear of persecution leads to an error of law as the Tribunal misunderstood the requirement in Article 1A of the Refugee Convention.”
Grounds 1 to 4 relate to the Tribunal’s findings in respect of relocation and are dealt with below.
Ground 5 does not disclose any error capable of review by this Court and is rejected.
Ground 6 appears to disagree with the findings and conclusions of the Tribunal and suggests that the Tribunal ignored the subjective fear of persecution alleged by the applicants. Such an allegation is misconceived in that the Tribunal accepted the applicants’ claims of a subjective fear of persecution by the Applicant’s ex-husband, both in the past and if they were to return to Bulgaria.
Accordingly, Grounds 5 and 6 are rejected
Grounds 1 to 4 – Relocation
The Applicant made submissions to this Court that essentially disagreed with the conclusion of the Tribunal that it was reasonable in all the circumstances for the applicants to relocate within Bulgaria and its finding that, as a result, the applicants do not have a well-founded fear of persecution.
The Applicant submitted to this Court that the Tribunal failed to take into account or consider the fact that the Applicant is now pregnant and that the stress she is experiencing is hurting both her and the baby. However, the fact of the Applicant’s pregnancy, or that the Applicant may become pregnant in the short term, does not appear to be evidence that was before the Tribunal. The applicants do not assert that the Tribunal was given this information. In the circumstances, it was not a matter before the Tribunal. Therefore it was not a circumstance that the Tribunal was required to consider. For that reason, there is no error on the part of the Tribunal in failing to consider any effect of the Applicant’s pregnancy.
The Tribunal gave careful consideration to whether it was reasonable and practical for the applicants to relocate within Bulgaria to avoid the harm they feared from the Applicant’s ex-husband.
The Tribunal did not accept that the Applicant’s ex-husband would follow the applicants to another part of Bulgaria and seek to harm or threaten them, including by telephone. In reaching that conclusion, the Tribunal had regard to the Applicant’s evidence that her ex-husband did not pursue or harass her when she went to Greece, from between March 2005 until October 2005, and that she was able to telephone her children and visit them at the home of her ex-husband on her return.
Whilst the Tribunal accepted that the Applicant’s ex-husband may have some influence in the Applicant’s home town of Shumen, it did not accept that the Applicant’s ex-husband is a manager in a white-goods shop that he would have influence throughout Bulgaria. In reaching that conclusion, the Tribunal had regard to the Applicant’s evidence that the physical harassment ceased when she left the home she shared with the ex-husband in Shumen and that neither applicant was physically harmed by the ex-husband, even though he lived close by. The Tribunal rejected the applicants’ explanation that this was because they remained behind closed doors.
Those matters led the Tribunal to find that there is not a real chance that the applicants will suffer harm amounting to serious harm from the ex-husband if they were to relocate within Bulgaria.
The Tribunal considered in detail the particular circumstances of the applicants in considering whether it was reasonable for the applicants to relocate within Bulgaria. The Tribunal was satisfied that the applicants could find work in other parts of Bulgaria and noted, in particular, that the Second Applicant is a tiler and was employed as such in Bulgaria and that the Applicant was able to obtain work in both Bulgaria and in Greece. The Tribunal found there was no plausible evidence to suggest that they could not work to support themselves elsewhere in Bulgaria.
The Tribunal confirmed with the Applicants that the only reason they claimed they could not live elsewhere in Bulgaria was because of their fear of harm from the Applicant’s ex-husband.
Although not raised by the applicants, the Tribunal also considered whether it was reasonable for the Applicant to relocate within Bulgaria in circumstances where her ex-husband has custody of her children and she has access rights during school holidays and weekends. The Tribunal accepted that the applicants may face additional costs associated with such access were they to locate away from Shumen. However, the Tribunal found there was no plausible evidence to suggest those costs would be beyond their means, given that both have always worked to support themselves and, in the Applicant’s case, her children.
The Tribunal recognised that the Applicant may be apprehensive about exercising her access rights. However, the Tribunal found that prior to coming to Australia she was exercising those rights and contacting her ex-husband to arrange visits.
The Tribunal considered and rejected any social stigma that may attach to the applicants were they to locate to other parts of Bulgaria, particularly to a larger town or the capital.
Based on the findings referred to above, the Tribunal found that on the evidence before it the applicants did not have a well-founded fear of persecution in Bulgaria within the meaning of the Convention.
A fair reading of the Tribunal’s decision makes clear that the findings made and the conclusions reached by the Tribunal were open to it on the material and evidence before it and for which it provided reasons.
The Tribunal had regard to all the matters of which it was aware that were relevant to its consideration of the practical ability of the applicants to relocate within Bulgaria without a risk of persecution. In so doing, it properly applied the principles of relocation (Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 at 277; NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC at 37)
In the circumstances, there is no error in the Tribunal’s conclusion that the applicants are not people to whom Australia has protection obligations.
Accordingly, grounds 1 to 4 of the application are not made out.
Otherwise, the Tribunal complied with the relevant statutory requirements under the Act in the making of its decision, including the conduct of its review.
Conclusion
The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.
The proceeding before this Court is dismissed with costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Emmett FM
Deputy Associate: E. Maconachie
Date: 4 July 2007
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