VUAN v Minister for Immigration
[2005] FMCA 308
•16 March 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| VUAN v MINISTER FOR IMMIGRATION | [2005] FMCA 308 |
| MIGRATION – Review of decision of Refugee Review Tribunal – protection visa application – well-founded fear of persecution in part of country of origin – reasonableness of proposed relocation within country – findings of fact – no jurisdictional error – application dismissed – costs. |
Migration Act 1958 (Cth)
Kumarkulasingham Durairajasingham v Minister for Immigration & Ethnic Affairs (1997) 50 ALD 469
Nouredine v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 138
Sabaratnasingam v Minister for Immigration and Multicultural Affairs [2000] FCA 261
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184
Hathaway The Law of Refugee Status 1991
| Applicant: | VUAN |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | MLG 1337 of 2003 |
| Delivered on: | 16 March 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 7 February 2005 |
| Judgment of: | Hartnett FM |
REPRESENTATION
| Counsel for the Applicant: | Ms N. Karapanagiotidis |
| Counsel for the Respondent: | Mr C.J. Horan |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDER
The application is dismissed.
The applicant pay the costs of the respondent fixed in the sum of $6,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 1337 of 2003
| VUAN |
Applicant
and
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
The applicant is a citizen of Russia and is of Jewish ethnicity. He arrived in Australia on 13 September 2000.
On 7 March 2001 the applicant applied for a Protection visa. The applicant claimed to fear persecution for reasons of his Jewish ethnicity.
On 25 May 2001 a delegate of the respondent refused to grant the applicant a Protection visa. The applicant applied to the Refugee Review Tribunal (the Tribunal) for review of the delegate's decision. The applicant gave oral evidence at the Tribunal hearing on 30 September 2002.
By a decision dated 18 September 2003 and handed down 10 October 2003 the Tribunal affirmed the delegate's decision to refuse to grant a Protection visa to the applicant.
The Tribunal's reasons
The Tribunal noted that it had before it the Department's file and the delegate's decision record. The Tribunal also had regard to the material referred to in the delegate's decision and other material available to it from a range of sources, including country information. The Tribunal noted the applicant's claims as initially presented in answer to the relevant questions in his protection visa application on 7 March 2001.
The Tribunal noted that on 19 April 2001 the delegate of the Minister had written to the applicant asking him to comment on the applicant's apparent right to enter and reside in Israel, and pursuant to the Law of Return under Israeli legislation with a view to assessing whether Australia owed the applicant protection obligations under subsection 36(3) of the Migration Act 1958 (Cth) (the Act). The applicant did not respond to the delegate's communication, and on 25 May 2001 the delegate made a decision to the effect that Australia did not owe the applicant protection as he had effective protection in Israel.
On 20 June 2001 the Tribunal received an application for review from the applicant which included a copy and a translation of his birth certificate. That document showed inter alia that the applicant's mother's nationality was Jewish.
In the “Reasons for making this application” section of the form, the applicant stated in part that he was aware that refugee status has been granted to some Jewish people in Australia and that he was aware that Israel was ready to accept him due to his nationality, but he strongly believed that he did not have to go to Israel because it is, from a practical point of view, in “a war status".
Prior to the hearing on 30 September 2002 (and 2 September 2002) the Tribunal received a submission from the applicant with such submission being accompanied by a number of documents and translations, as well as newspaper articles which were referred to in the reasons of the Tribunal.
During the hearing, the Tribunal explored a number of issues with the applicant in relation to his late declaration that he was not Jewish by religion but had been baptised as a Christian by his father without his mother's knowledge. The Tribunal also explored the discrepancies between the claims at different iterations, and the applicant indicated that it was because his original adviser had kept all his documents.
The Tribunal made the following findings:
i)the applicant was a national of Russia and of Jewish ethnicity;
ii)the applicant was not a baptised member of the Russian Orthodox Church and the baptism certificate provided was not a genuine document. However, the Tribunal did not rely on this finding in making its decision;
iii)the applicant had been subjected to a number of incidences in March 95, September 99 and May 2000. The Tribunal, however, was not satisfied that the applicant's Jewish ethnicity was the motivating factor for these incidences but conceded that his ethnicity might have been part of the reason why the applicant was harmed;
iv)although the Tribunal found certain elements of the applicant's evidence implausible or contrived, it gave him the benefit of the doubt and accepted that the harm that befell him was for a Convention reason, namely ethnicity. Accordingly the Tribunal found that the applicant had a well‑founded fear of persecution in Krasnodar where he was apparently well known;
v)the Tribunal found that the applicant had not suffered any detriment in education or employment;
vi)the Tribunal did not accept that the police had not assisted the applicant in relation to his difficulties. The police had proceeded on the basis of available information and had interviewed members of the Russian National Unity. The actions of the police did not indicate a disregard of the applicant's reports or a lack of action on the ground of some characteristic of the applicant, and indicated that the attitude of the police was not one of animosity and prejudice as claimed by the applicant.
Having found that the applicant had a well-founded fear of persecution in Krasnodar where he was apparently well known, the Tribunal then went on to consider whether the applicant could relocate to other parts of the country, the Tribunal having found that the harm suffered by the applicant seemed to have been perpetuated by people known to him or who knew him in the area in which he was living.
The Tribunal referred to the Refugees Convention definition of a refugee, and in particular, noted that:
If a fear of localised persecution is well founded, the availability of protection in the remainder of the country must be considered (Kumarkulasingham Durairajasingham v Minister for Immigration & Ethnic Affairs (1997) 50 ALD 469 at 479; Nouredine v Minister for Immigration and Multicultural Affairs (1999) 91 FCR 138 at 14; Sabaratnasingam v Minister for Immigration and Multicultural Affairs [2000] FCA 261).
The Tribunal noted that the leading Australian case on the issue of relocation is Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The Tribunal found that the applicant could reasonably relocate to another area of Russia where he would not face a real chance of persecution for a Convention reason. As set out accurately by the respondent, in making this finding, the Tribunal noted:
(a) The applicant did not practice Judaism;
(b) The applicant was well educated;
(c) The applicant had demonstrated his versatility in employment;
(d) There was no impediment to the applicant's mother also relocating with the applicant if she so chose;
(e) The applicant's difficulties arose from the fact that he was well known in Krasnodar and that relocation would allow the applicant to achieve a degree of anonymity sufficient to remove any real chance of persecution;
(f) Although instances of societal discrimination against Jews had been reported in many parts of Russia, there was no evidence of concerted violence against Jews;
(g) Given that the applicant was not of Jewish religion and that his name did not indicate any connections with Judaism, the applicant would be able to move to another area of Russia;
(h) Further the Tribunal found that even if the applicant were to inform people of his Jewish origins, there would be no real chance of his being subjected to Convention persecution.
Consideration
By his amended application dated 10 February 2004 the respondent submits the applicant seeks to impugn each of the critical findings of fact made by the Tribunal. Those findings were:
(1)That the applicant could reasonably relocate to another part of Russia where he would not face a real chance of persecution;
(2)Protection was available from the authorities and was not selectively withheld for a Convention reason.
In order for the applicant to be successful, he must demonstrate that the Tribunal's decision was affected by jurisdictional error, that error being a failure to exercise jurisdiction or an excess of jurisdiction as described in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24. Judicial review in this Court is not a reconsideration of the merits of the case, and in perusing the Tribunal's reasons, the Court should do so in a not overly critical manner "with an eye keenly attuned to the perception of error" (Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259).
The Relocation Finding
The applicant argues that the Tribunal did not raise the issue of relocation with the applicant and that this was a failure to afford to the applicant procedural fairness, constituting jurisdictional error. It was said by the applicant that in relation to this most critical issue, the denying to the applicant of natural justice could not be said to have had no bearing on the outcome.
I reject that submission. In making its finding that the applicant was able to relocate, the Tribunal did not take into account and fail to put to the applicant any adverse material of which the applicant was unaware. The applicant was clearly aware that relocation was a critical issue for determination by the Tribunal, and in that regard, the applicant made submissions to the Tribunal on that issue. The applicant stated to the Tribunal that he could not relocate because attitudes toward Jews in Russia were the same everywhere and because he did not have the money to relocate. Otherwise the Tribunal was not required to notify the applicant of its mental processes or to provide him with an opportunity to comment on its provisional reviews (Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 591 to 592; Pilbara Aboriginal Land Council Aboriginal Corp Inc v Minister for Aboriginal & Torres Strait Islander Affairs (2000) 103 FCR 539 at 555 to 557.
The Tribunal was required to address whether the applicant's fear of persecution was well founded in relation to the whole of Russia and not just the regional area in which he lived, (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437). If there was another area in which the applicant did not face a real chance of persecution for Convention reasons, then the Tribunal was required to consider whether the applicant could reasonably be expected to relocate to that area. The Tribunal considered the reasonableness of relocation of the applicant in its consideration of whether there were any financial, logistical or other barriers which could have made it unreasonable to expect the applicant to relocate; factors such as the applicant's education and employability, the ability of his mother to move with him and the lack of need for religious practice were all matters taken into account by the Tribunal.
The Tribunal made a conclusion that it was reasonable on the material before it for the applicant to relocate. That was a finding of fact in the province of the Tribunal to determine. Nowhere in the reasons is it apparent that the Tribunal misunderstood or misapplied the relevant principles when it came to determining the issue of relocation. Thus the argument of the applicant that the Tribunal failed to carefully consider the issue of reasonableness of relocation is not one which I accept.
The Tribunal found that the applicant's treatment in Krasnodar arose from the fact that he was well known in the area. Accordingly, if he moved to another area, he would be in the same position as any other person of Jewish origin. Whilst the applicant disagreed with this finding, it was a finding of fact which the Tribunal was entitled to make on the material before it. The Tribunal found there was no real chance of persecution of Jews in general in Russia.
The question of relocation was considered by the Tribunal in its reference to the decision in Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437. The reasons include a statement from Black CJ as follows (at 442):
…a person's fear of persecution in relation to that country (of nationality) will remain well-founded with respect to the country as a whole if, as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.
It is not for the decision-maker to address a series of specified matters but rather as stated by Black CJ (Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437 at 443):
Once the question of relocation had been raised for the delegate's consideration, she was of course obliged to give that aspect of the matter proper consideration. However, I do not consider that she was obliged to do this with the specificity urged by counsel for the appellant. I agree that it would ordinarily be quite wrong for a decision-maker faced with a relocation possibility to take the general approach that there must be a safe haven somewhere without giving the issue more specific attention, but the extent of the decision-maker's task will be largely determined by the case sought to be made out by an applicant. In the present case the applicant raised several issues, all of which were dealt with by the decision-maker. If the appellant had raised other impediments to relocation the decision-maker would have needed to consider these, but having regard to the issues raised by the appellant and to the material that was before the decision-maker on the issue of relocation she was entitled to come to the conclusion that the appellant could reasonably be expected to relocate elsewhere in India.
The State Protection Finding
The Tribunal made a finding of fact that "the actions of the police do not indicate a disregard of the applicant's report or a lack of action on the ground of some characteristic of the applicant". Although this finding was made in the context of the police response to the complaint arising from the incident in May 2000, I accept the respondent’s submissions that there is no reason why the finding should be confined to that incident. Later in its reasons the Tribunal referred to having dealt with the applicant and his adviser's concerns about protection being afforded by the authorities.
The applicant contends that the Tribunal failed to consider all of the applicant's claims and evidence in relation to police inactivity. I find no basis to that submission. The Tribunal did deal with the issue of State protection and did not fail to consider any component integer of the applicant's claim. It is not necessary for the Tribunal to refer in its reasons to every piece of evidence and every contention made by an applicant (Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 at 46).
The ultimate question for the Tribunal was whether the applicant faced a real chance of persecution in other areas of Russia to which he might relocate. The availability of State protection was one of the matters relevant to that question and the Tribunal considered the availability of State protection also in that context.
In light of the factual material which was before the Tribunal, I cannot find there was any jurisdictional error attended upon the decision. The Tribunal was entitled on the issue of relocation to come to the conclusion that the applicant could reasonably be expected to relocate elsewhere in Russia. Likewise, the Tribunal was entitled on the material before it to come to the conclusion that State protection was afforded to the applicant, that is, it did not meet the test as explained by Professor Hathaway in The Law of Refugee Status 1991 (at page 134):
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 social-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 this instance, State protection was evident and refugee status was not established.
Accordingly the application will be dismissed with costs.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Hartnett FM
Associate: Sophie Killen
Date: 16 March 2005
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