SZATV v Minister for Immigration and Citizenship

• Jurisdiction: Australia Federal only
• Judge: Gummow,Hayne,Crennan JJ,Kirby J,Callinan J
• Judgment Date: 30 August 2007
• Neutral Citation: [2007] HCA 40,2007-0830 HCA B
• Court: High Court
• Docket Number: S62/2007
• Date: 30 August 2007

SZATV

Appellant

and

Minister for Immigration and Citizenship & Anor

Respondents

[2007] HCA 40

Gummow, Kirby, Hayne, Callinan and Crennan JJ

S62/2007

HIGH COURT OF AUSTRALIA

SZATV v Minister for Immigration and Citizenship

Immigration — Refugees — The appellant was a Ukrainian national who faced persecution in his home region on account of the expression of his political beliefs through journalism — Whether the principle of internal relocation is consistent with the Convention relating to the Status of Refugees — Whether the Refugee Review Tribunal erred in holding that it was reasonable for the appellant to relocate elsewhere in Ukraine — Whether postulated relocation involves denial of fundamental right to free expression of political beliefs protected by Convention.

Immigration — Refugees — Well-founded fear of persecution — Whether a well-founded fear of persecution may be confined to a particular region of a country — Whether persecution may reasonably be avoided by relocation — Whether persecution may reasonably be avoided by living ‘discreetly’ — Relevance of practicability — Relevance of territorial distinctions.

Words and Phrases — ‘discreet’, ‘owing to’, ‘practicable’, ‘protection’, ‘refugee’, ‘relocation’, ‘well-founded fear of persecution’.

Migration Act 1958 (Cth), s 36(2).

Convention relating to the Status of Refugees, Art 1A(2).

Representation

J T Gleeson SC with N J Owens for the appellant (instructed by Corrs Chambers Westgarth)

S J Gageler SC with P S Braham and T Reilly for the first respondent (instructed by Australian Government Solicitor)

Submitting appearance for the second respondent

ORDER

• 1. Appeal allowed with costs.

• 2. Set aside the order of the Federal Court of Australia made on 31 October 2005 and in its place order:

  • (a) appeal allowed with costs; and

  • (b) set aside the orders of the Federal Magistrates Court made on 1 August 2005 and in their place order that:

    • (i) a writ of certiorari issue directed to the Refugee Review Tribunal, quashing its decision made on 30 April 2003;

    • (ii) a writ of prohibition issue directed to the Minister, prohibiting the Minister from giving effect to the Refugee Review Tribunal's decision made on 30 April 2003;

    • (iii) a writ of mandamus issue directed to the Refugee Review Tribunal, requiring it to determine according to law the application for review made on 23 May 2002; and

    • (iv) the Minister pay the applicant's costs.

Gummow, Hayne and Crennan JJ.

The Facts

1 The appellant was born in 1960 in the city of Chernovtsy, situated in what was then the Union of Soviet Socialist Republics (‘the USSR’). Upon the dissolution of the USSR the appellant acquired Ukrainian nationality.

2 Chernovtsy (formerly Czernowitz) is situated in the west of Ukraine, close to the Carpathian mountain range and to the northern border of Romania. In the 19th century it was the chief city of the Bukovina region in the Austro-Hungarian Empire and was developed as an important educational and commercial centre; in 1919, under the Treaty of St Germain it passed to Romania and after World War II to the USSR 1.

3 Between 1981 and 1987 the appellant studied at the Chernovtsy State University and in 1987 he qualified as a civil engineer. The appellant married in 1981 and a child of the marriage, a son, was born in 1983. The appellant's wife and son remain in Ukraine.

4 In 1991 the appellant obtained a cadet-journalist position on a newspaper ‘ The Young Bukovinez’ and thereafter worked part-time as a freelance journalist. In December 1995 he was accepted as a qualified journalist on a new publication ‘ Chernovtsy-City’. In the period that followed the appellant researched and published articles in that newspaper on the subject of government corruption, in particular that of the regime of Theophil Bauer who had been appointed governor of the Chernovtsy region by a decree of the then Ukrainian President Kuchma.

5 The appellant arrived in Australia on 12 June 2001 and on 24 July of that year he lodged an application for a protection (Class XA) visa to be issued pursuant to the Migration Act 1958 (Cth) (‘the Act’). A delegate of the Minister (the first respondent in this Court) refused to grant a protection visa and on 30 April 2003 that decision was affirmed by the Refugee Review Tribunal (‘the Tribunal’) (the second respondent in this Court).

The Tribunal Decision

6 The Tribunal accepted, as a serious problem in Chernovtsy, regional government corruption and the willingness of regional government officials to intimidate and to threaten public critics, such as journalists, with serious harm. It

also found that by reason of his political views the appellant had been subjected to ‘a systematic campaign of harassment’ which included physical mistreatment. But in the penultimate paragraph of its reasons, par [81], the Tribunal concluded:

‘In summary I find that the [appellant] 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 Chernovtsy region, it is reasonable for the [appellant] to relocate elsewhere in Ukraine. Accordingly, I am not satisfied that his fears of persecution upon his return to Ukraine are well founded.’

7 Section 483A of the Act provided that the Federal Magistrates Court had the same jurisdiction as the Federal Court in relation to a matter arising under the Act. With respect to the decision of the Tribunal, the parties accept that the effect of s 483A was to confer upon the Federal Magistrates Court the jurisdiction provided for in s 39B of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’).

8 An application to the Federal Magistrates Court by the appellant was dismissed on 1 August 2005, it being held that the complaints he made did not establish a case of jurisdictional error on the part of the Tribunal. An appeal to the Federal Court of Australia was heard by Tamberlin J and dismissed on 31 October 2005.

The ‘Relocation Principle’

9 In this Court, active opposition to the appeal was provided by the Minister. The Tribunal entered a submitting appearance. The appellant identifies as the primary issue the correctness of the ‘internal relocation principle’ which was expounded by the Full Court of the Federal Court in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs2.

10 In Randhawa, after referring to the text of the Convention relating to the Status of Refugees (‘the Convention’) and in particular to that part of the definition of the term ‘refugee’ in Art 1A(2), Black CJ said 3:

‘Although it is true that the Convention definition of refugee does not refer to parts or regions of a 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 of the real protection of their county of nationality elsewhere within that country. The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. If it were otherwise, the anomalous situation would exist that the international community would be under an obligation to provide protection outside the borders of the country of nationality even though real protection could be found within those borders.’

11 The appellant points to the absence from the text of the Convention definition of any reference to relocation to a safe area within the country of nationality or a former habitual residence. He correctly submits that any notion of ‘relocation’ and of the ‘reasonableness’ thereof is to be derived, if at all, as a matter of inference from the more generally stated provisions of the definition.

12 The Convention definition is drawn into Australian municipal law by s 36(2) of the Act. It supplies a criterion for the grant of a protection visa. Provision is now made in the Act by way of further specification of some of the general terms used in the Convention definition of ‘refugee’. Sections 91R and 91S 4 are examples. However, no such provision is made respecting any ‘relocation principle’.

13 On the other hand, § 208.13 of the United States Code of Federal Regulations, which is headed ‘Establishing asylum eligibility’, provides in part:

‘An applicant does not have a well-founded fear of persecution if the applicant could avoid persecution by relocating to another part of the applicant's country of nationality or, if stateless, another part of the applicant's country of last habitual residence, if under all the circumstances it would be reasonable to expect the applicant to do so.’

14 Further, with respect to the European Union, a Council Directive of 29 April 2004 5 contains the following as Art 8, with the heading ‘Internal protection’:

‘1. As part of the assessment of the application for international protection, Member States may determine that an applicant is not in need of international protection if in a part of the country of origin there is no well-founded fear of being persecuted or no real risk of suffering serious harm and the applicant can reasonably be expected to stay in that part of the country.

2. In examining whether a part of the country of origin is in accordance with paragraph 1, Member States shall at the time of taking the decision on the application have regard to the general circumstances prevailing in that part of the country and to the personal circumstances of the applicant.

3. Paragraph 1 may apply notwithstanding technical obstacles to return to the country of origin.’

15 But, as indicated above, in Australia any ‘principle’ respecting ‘internal relocation’...