SZKDY v Minister for Immigration and Citizenship [2007] FCA 1667

FEDERAL COURT OF AUSTRALIA

SZKDY v Minister for Immigration and Citizenship [2007] FCA 1667

IMMIGRATION – Tribunal correctly applied the relocation principle – no jurisdictional error SZKDY v Minister for Immigration and Citizenship [2007] FMCA 1038 affirmed NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37 cited Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 cited SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 applied SZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660 applied SZKDY and SZKDZ v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL NSD 1429 OF 2007

GYLES J

31 OCTOBER 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1429 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKDY and SZKDZ

Appellants

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GYLES J

DATE OF ORDER: 31 OCTOBER 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. The appeal be dismissed. 2. The appellants pay the costs of the first respondent assessed in the sum of $2,500.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1429 OF 2007

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZKDY and SZKDZ

Appellants

AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

JUDGE: GYLES J

DATE: 31 OCTOBER 2007

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 This is an appeal from a decision of Emmett FM of 4 July 2007 in which her Honour dismissed an application for judicial review of a decision of the Refugee Review Tribunal (the Tribunal)(SZKDY v Minister for Immigration and Citizenship [2007] FMCA 1038). The Tribunal affirmed a decision of the Minister's delegate to refuse the appellants a protection visa. The appellants' notice of appeal was drafted prior to them seeing the reasons of the learned Federal Magistrate and does not include any appropriate ground of appeal. That remains the position, there having been no amendment to it. 2 The substantial point at issue in the case is the so-called "relocation" principle. The appellants are citizens of Bulgaria and live together in a de-facto relationship. The female appellant sought a protection visa on the basis that she held a well-founded fear of persecution by her former husband and her membership of a social group defined as "Bulgarian women suffering domestic violence." The male appellant's claim is made on the basis of his association with the female appellant. The Tribunal accepted that she was a member of such a social group and that she would have a well-founded fear of persecution by her former husband if it were not for her ability to relocate within Bulgaria. 3 The Tribunal, in considering that question, applied the law as it was understood at that time which was prior to the decisions of the High Court in SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634 and SZFDV v Minister for Immigration and Citizenship (2007) 237 ALR 660. The learned Federal Magistrate considered the appeal on the basis of the existing decisions of the Full Court of this Court, namely, Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437 and NAIZ v Minister for Immigration, Multicultural and Indigenous Affairs [2005] FCAFC 37, and found that there was no error in the Tribunal's conclusion based upon those principles. The Federal Magistrate set out a summary of the Tribunal's findings on that issue. 4 The appellants, although not having framed any ground of appeal, referred me to some writings on relocation which, again, are based upon Randhawa 52 FCR 437. They submit that Bulgaria is a small country and that, effectively, relocation could not be effective because, as it was put, "Everybody knows everybody else," and presumably, that they could easily travel to where the other person is. That basis for attacking the judgment of the Federal Magistrate cannot succeed because it raises what is, essentially, a question of fact. It is not the task of the Federal Magistrates Court to make findings of fact. That is the province of the Tribunal. On judicial review, the Federal Magistrates Court is limited to assessing whether or not there was jurisdictional error. 5 Although the appellants point to no error in principle or law by the learned Federal Magistrate which would support an appeal, I have looked carefully at the matter because of the fact that, subsequent to the decisions by the Tribunal and Emmett FM, the High Court considered the issue. I have had assistance from counsel for the Minister in analysing the approach of the High Court in the relevant decisions as to whether or not that amounts to any revision of the principles laid down in Randhawa 52 FCR 437. It is not necessary, for the purposes of this case, to consider that in a general way. I should focus upon the facts of this particular case. 6 The basic test accepted by the High Court in SZATV 237 ALR 634 is whether it be reasonable, in the sense of being practicable, for the appellant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution, noting, however, that what is reasonable in the sense of "practicable" must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality (SZATV 237 ALR at 23–24). 7 When I turn to the Tribunal's decision, the Tribunal posed the question in this way: "The Tribunal next considered whether the applicants could relocate within Bulgaria to avoid the harm that they fear. According to Australian law, if it can reasonably be expected that an applicant can relocate to another part of their country and live safely then the applicant does not have a well-founded fear of persecution in relation to that country. What is reasonable will depend on the circumstances of the individual case." The Tribunal then went on to consider a number of aspects of those factual issues. I cannot find that the Tribunal proceeded upon a basis which is inconsistent with the decisions of the High Court to which I have referred. For the purposes of this case, it does not seem that there is any operative difference between the approach of the High Court and the approach applied by the Tribunal which, in turn, the Federal Magistrate found was not in error. 8 There is no need for me to comment about the findings about social group and persecution, as those matters were accepted for the purposes of the exercise by the Tribunal. The appellants' complaint is, in my view, a complaint about the merits of the decision-making by the Tribunal. Those merits, of course, are a matter of opinion, and although the appellants may not agree with the conclusion, in my view, it was a conclusion open to the Tribunal in the sense that it correctly identified the principle and then considered the facts which related to it. 9 I am bound to dismiss this appeal by each of these appellants. The orders of the Court are: (1) Appeal dismissed. (2) The appellants are to pay the costs of the first respondent assessed in the sum of $2500. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.