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MIGRATION - Application to review decision of Refugee Review Tribunal - whether breach of s.424A or lack of procedural fairness - whether Tribunal erred in failing to consider applicant's complaints to authorities to be an expression of political opinion.

SZAWT v Minister for Immigration [2004] FMCA 875 (30 November 2004)

SZAWT v Minister for Immigration [2004] FMCA 875 (30 November 2004)
Last Updated: 6 December 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAWT v MINISTER FOR IMMIGRATION
[2004] FMCA 875




MIGRATION - Application to review decision of Refugee Review Tribunal - whether breach of s.424A or lack of procedural fairness - whether Tribunal erred in failing to consider applicant's complaints to authorities to be an expression of political opinion.




Migration Act 1958

V v MIMA (1999) 92 FCR 355

SZARH v MIMIA [2004] FMCA 615

Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323

Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244

Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670

WAGP OF 2002 v MIMIA [2002] FCAFC 266

Kioa v West (1985) 159 CLR 550

Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 5797

SHKB v MIMIA [2004] FCA 545

MIMA v Singh (2002) 209 CLR 533

Randhawa v MILGEA (1994) 52 FCR 437

Applicant:
SZAWT




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SYG1202 of 2003




Delivered on:


30 November 2004




Delivered at:


Sydney




Hearing dates:


26 August 2004 & 30 September 2004




Judgment of:


Barnes FM




REPRESENTATION

Counsel for the Applicant:


Nil




Solicitors for the Applicant:


Nil




Counsel for the Respondent:


Mr D. Jordan




Solicitors for the Respondent:


Australian Government Solicitor




ORDER

(1) That the application is dismissed.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SYG1202 of 2003

SZAWT



Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal (the Tribunal) handed down on 10 June 2003 affirming a decision of a delegate of the respondent not to grant the applicant a protection visa.

2. The applicant is a citizen of Russia who claimed to fear persecution for reason of race, namely his Tatar ethnicity and also for reason of political opinion on the basis that he had complained to the Russian authorities against racially motivated violence and extortion and these complaints were perceived as an expression of political opinion.

3. The applicant claimed that he was born and lived in St Petersburg and that his father was a Tatar and his mother was Russian. He claimed that his father was threatened, injured and then in 1993 murdered because of his ethnicity and that the authorities covered this up by an official finding that the death was caused by alcohol poisoning despite the fact that his father did not drink.

4. The applicant said that he himself did not experience problems by reason of his Tatar ethnicity until 1998. Early that year a police jeep ran into and damaged his parked car. He claimed that he reported the accident to the municipal authorities and when he followed up his complaint they told him not to call them. He said that he told them that he would not leave it at that, but in fact did not pursue the matter further. However about a month after the traffic accident he was attacked by four men, one of whom called him a "bloody Tatar" or something similar. He was "pretty sure" that these men were related to the law and order authorities, claiming that the militia knew about his ethnic origin because he had given evidence to the police concerning his ethnic origin after his father died. The applicant said that he was hospitalised for 15 days and while in hospital a militia officer came to see him and he told him what had happened. He claimed that two months later he was subject to another attack and spent a week in hospital, that he complained to a militia investigator but nothing happened. He believed both attacks were linked to the traffic accident and to the militia.

5. The applicant also claimed that towards the end of November 1999 he was approached by militia officers at his car repair business (which had operated successfully since 1996) who told him that he would have to fix their vehicles free of charge. They hit him and said that if he did not agree they would find a more convincing method. He contended that this occurred because of his ethnicity. They told him that the reason was that he was a Tatar and that he was "a nothing, a nobody". The applicant stated that he complained to the public prosecutor's office twice but received no reply to his letters. A week later he was arrested by the militia, taken to the militia station, beaten and threatened with further physical violence if he continued "to do stupid things". He believed that the reason for this was that he had made written complaints although the militia men did not tell him this expressly. He said that he was forced to sign a confession to being drunk and abusive and to pay a fine but was not taken before a court. He contended that there was a direct link between the public prosecutor's office and the militia and that the public prosecutor's office had not helped him, in fact their actions were aimed against him as were the militia's actions.

6. The applicant claimed that from November 1999 until April 2000 he acceded to the demands of the militia and fixed their vehicles without charge. Consequently his business became unprofitable. He complained that the actions of the militia were aimed at depriving him of his livelihood and ruining him. In April 2000 he told the militia that he refused to do any more work for them for free. The next day he was arrested, officially because he looked like a wanted criminal. He was detained overnight and beaten up. That same night his business was burnt down.

7. The applicant then consulted a lawyer who advised him to write an official complaint to be presented to the Central Municipal Court. The applicant told the solicitor he knew and could recognise the people who were persecuting him and the specific militia department. He told the solicitor they were persecuting him because of his nationality or ethnicity. The applicant claimed, however, that as far as he knew the matter never went to court. He claimed that a week later he was kidnapped by members of the militia in uniform but wearing masks, beaten and warned that his family would be harmed if the letter of complaint was not withdrawn. The applicant, his wife and son then went into hiding at a friend's place. In May 2000 the applicant's mother was approached by the militia trying to find him. His solicitor took no further action despite consultations with him and he felt that some pressure had been exerted on the solicitor.

8. In June 2000 the applicant and his wife travelled to Finland with the intention of seeking asylum but they did not do so. Instead they returned shortly afterwards when they learned that the militia had approached the applicant's mother-in-law who was minding their son and told her to say hello to her son-in-law. An attempt to obtain a further visa to enter Finland was unsuccessful and the applicant and his wife obtained visas to enter Australia through a travel agency which arranged false references on their behalf.

9. The applicant and his wife arrived in Australia on 21 August 2000 and lodged applications for protection visas on 24 August 2000. Only the applicant made specific claims pursuant to the Refugees Convention.

10. The Tribunal did not accept that the applicant was persecuted in the way he claimed or for the reasons he claimed. It considered that the applicant had fabricated his claims to provide a basis for his application for a protection visa. This finding was based on a number of matters, in particular the absence of any report suggesting that Tatars are persecuted in Russia for reason of their ethnicity in the way the applicant claimed had occurred in his case. The Tribunal referred at some length to country information indicating that Tatars are the second largest ethnic minority in Russia, noting that the human rights situation in Russia was well reported by both international organisations and non-government organisations and concluding that if Tatars were persecuted as claimed by the applicant it would have been reported. This conclusion was confirmed by the inability of the applicant or his adviser to identify any reports of Tatars being persecuted even though the issue was clearly raised by the Tribunal during the hearing and further submissions were lodged after the hearing. The Tribunal did not accept the claims that the authorities concealed or camouflaged instances of persecution that were going on or that the lack of information about the persecution of Tatars was the direct result of the authorities' policy to conceal facts of ethnically or racially motivated persecution. Given the extent of the Tatar community in Russia, and in particular in St Petersburg, where the applicant had lived, the Tribunal did not accept that it would have gone unreported if Tatars were being singled out for persecution by the militia or persons related to the law enforcement authorities as the applicant claimed occurred in his case or if the public prosecutor's office and the courts were failing to protect Tatars from such persecution. The Tribunal did not accept that Tatars were being singled out for persecution in the way the applicant claimed to have been.

11. The Tribunal also had regard to the applicant's failure even to consider moving to Tatarstan despite the persecution he claimed to have been experiencing in St Petersburg. It considered that if the applicant had been experiencing the problems he claimed to have experienced by reason of his Tatar ethnicity in St Petersburg he could have moved to the Autonomous Republic of Tatarstan. This issue was raised with the applicant in the course of the hearing.

12. The Tribunal considered the objections raised by the applicant to this possibility but found that even if the applicant's claims were to be accepted (which they were not) it was clear that they were local in nature and there was nothing in his account to suggest that he was regarded by the Russian authorities at the national level as an opponent of "the regime's course and policies" as claimed or that the Russian authorities at the national level would have any reason to pursue or persecute him if he had moved to Tatarstan. It found, contrary to the claims by the applicant, nothing in the evidence before it to suggest that persons of Tatar ethnicity or indeed ethnic Russians were exposed to persecution or ill-treatment if they moved to Tatarstan.

13. The Tribunal went on to provide an alternative basis for its conclusion in finding that, even if events had occurred as claimed by the applicant, having regard to the absence of any information indicating that Tatars are persecuted in Russia by reason of their ethnicity, it would not accept that the applicant was singled out by the militia or persons related to the law enforcement authorities in St Petersburg to be attacked, unlawfully arrested and victimised by virtue of his Tatar ethnicity or that the public prosecutor's office or the courts failed to protect him from persecution for reasons related to his ethnicity.

14. In relation to the claim that the applicant feared being persecuted by reason of his political opinion expressed by his writing a letter or replying to the court (albeit that the matter did not get before the court) the Tribunal found that even if it were to accept his evidence what he claimed to have done was to pursue legal remedies which he believed were available for the persecution he claimed to have suffered. The Tribunal distinguished the situation from that considered by the Full Court of the Federal Court in V v MIMA (1999) 92 FCR 355. It accepted that, as stated in V, an attitude of resistance to systemic corruption in government authorities could amount to an expression of political opinion, but considered that what the applicant claimed to have done was &quo;
t;more aptly described as the reporting of alleged criminal conduct by individual members of the militia rather than any form of opposition to or defiance of the authorities". It had regard to the fact that, despite the applicant's assertions to the contrary, there was nothing in the evidence to suggest that the Russian authorities viewed the applicant's actions as an expression of political opinion and it considered his evidence indicated his problems were confined to the local level. Hence, even if it were to accept the applicant's evidence, it would not accept that he had a well-founded fear of being persecuted by reason of his political opinion if he returned to Russia now or in the reasonably foreseeable future. In conclusion the Tribunal found that it did not accept the applicant's evidence nor that any persecution he claimed to fear had the requisite connection with one of the five Convention reasons. Hence it was not satisfied that the applicant had a well-founded fear of being persecuted for a Convention reason if he returned to Russia.

15. The applicant filed an application for review in this court on 30 June 2003. The application identifies two grounds as follows:

1. The Tribunal failed to address relevant matters, such as the applicant's credible accounts, the current political situation in Russia, available country information and etc [sic].

2. The Tribunal was in error considering the applicant's complaints to higher authorities as not an expression of political opinion.

16. The applicant filed written submissions on 19 August 2004 which contend that the Tribunal breached s424A(1) of the Migration Act 1958 in failing to give him an opportunity to comment on credible and relevant information, in particular that the Tribunal failed to raise with him the issue of the "local nature of the persecution" during the hearing. It was contended that this information was relevant and significant to the decision to be made and that the Tribunal ought to have given the applicant an opportunity to comment on it and that in failing to do so the Tribunal failed to observe the rules of natural justice as well as breaching s424A(1).

17. The applicant also submitted in written submissions that the Tribunal erred in distinguishing the decision of the Full Court of the Federal Court in V v MIMA, as the key element of both cases was whether a person's opposition to and attempt to expose corruption (eg unlawful activities) amounted to Convention-related persecution. It was contended that the applicant's decision to apply to higher authorities to defend his constitutional rights and expose criminal and unlawful activities of local authorities and its agents made his case very similar, if not identical, to V in which the court had noted that "the appellant was persecuted because of his attitude of resistance to systematic corruption of, and criminal activity by, government officials".

18. Finally, the applicant contended that other evidence of the Tribunal's failure to comply with s424 (it appears this is meant to be a reference to s424A), was the case of another applicant (who was identified by name and file number) which had been heard by the Federal Magistrates Court a few weeks prior to the hearing, in which the respondent's counsel had agreed that the matter should be remitted to the Tribunal for further determination. On 30 September 2004 the applicant also filed what he described as supplementary information that there were another three cases where similar issues were addressed and resolved by the court, all of which were referred back to the Tribunal for further determination in September 2004. Subsequently he provided a copy of a decision of Federal Magistrate Raphael in SZARH v MIMIA [2004] FMCA 615 which I refer to below and stated that the other two cases had been remitted by consent.

19. The solicitor for the respondent provided the court with copies of consent orders in relation to the two other matters referred to in the applicant's submissions and copies of the applicant's outline of submissions in each of those matters. They do not assist the applicant. The fact that in two unrelated matters the respondent consented to remittal where applicants had contended that a Tribunal had breached s424A(1) in rather different circumstances does not establish jurisdictional error in the present case. It does not follow that because one applicant succeeds on the basis of a claim of breach of s424A(1) in having his matter remitted by consent that another claim in different circumstances about a breach of s424A(1) must necessarily succeed. That is not the case.

20. The first ground in the application, that the Tribunal failed to address relevant matters, appears to be a contention that the Tribunal failed to take into account relevant considerations although this is not elaborated upon directly in the written submissions of the applicant. The Tribunal is obliged to take into account relevant considerations or the integers of the applicant's claim in the sense considered in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 and Htun v Minister for Immigration & Multicultural & Indigenous Affairs (2001) 194 ALR 244. It is not obliged to refer to every item of evidence and the weight to be given to particular items of evidence is a matter for the Tribunal. The Tribunal did address the applicant's claims, the current political situation in Russia and available country information. The fact that it did not accept these claims does not establish a failure to take into account relevant considerations.

21. The applicant also contended that the Tribunal did not give him an opportunity to deal with its conclusion that his difficulties were essentially local in nature. It was submitted that the Tribunal failed to comply with s424A of the Migration Act 1958 and also denied him procedural fairness.

22. The Tribunal is obliged under s424A(1) of the Act to give particulars of any information which it considers would be the reason or part of the reason for affirming the decision under review to the applicant for comment. However the Tribunal is not obliged to put its thought processes or reasoning to the applicant. As was pointed out by the Full Court in WAGP OF 2002 v MIMIA [2002] FCAFC 266 at [26] "To permit an applicant for review of a delegate's decision to comment on each deficiency in his or her evidence, as viewed by the RRT, has the potential to allow protracted and almost never-ending process of review, the result plainly not intended by the legislature". A conclusion by the Tribunal that there is an inconsistency between two pieces of information would not of itself be "information" for the purposes of s424A(1) (see WAGP at [33]). Nor is the Tribunal's finding that "even if the applicant's claim were to be accepted, it is clear that his problems were local in nature". No breach of s424A is established.

23. The applicant also put his claim on the alternative basis that there was a lack of procedural fairness. This is not a case which is covered by s422B of the Act. While the applicant provided the court with a copy of the transcript of the Tribunal hearing which he relied on to support his contention that the Tribunal did not raise with him its view of the local nature of his problems, in fact the transcript reveals that there was no lack of procedural fairness. The Tribunal is, as the applicant contended, obliged to give him an opportunity to comment on information that is credible, relevant and significant to the decision to be made (see Kioa v West (1985) 159 CLR 550 at 629 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah (2001) 206 CLR 5797). In this case the critical issue (insofar as it related to the Tribunal's view that his problems were local in nature) was clearly the question of whether he could relocate to another part of Russia. Such issue was put to the applicant. He was made aware of its significance and had the opportunity to make submissions and provide evidence in relation to this issue which encompassed the issue of whether his problems were local in nature. As was appreciated by the Tribunal, the focus of the definition of refugee in the Refugees' Convention is not upon the protection that an applicant's country of nationality might be able to provide in some particular region (such as St Petersburg) but upon a more general notion of protection by that country. As was pointed out by Black CJ in Randhawa v MILGEA (1994) 52 FCR 437 in considering the reasonableness of relocation the Tribunal must consider barriers to relocation but while "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 matter more specific attention the extent of the decision-maker's task will largely be determined by the case sought to be made out by the applicant" (at [17]).

24. It is apparent from the material before the court including the transcript that the question of relocation was raised with the applicant. It was first raised in an interview with the delegate and addressed in the delegate's decision. The applicant had raised as an impediment to relocation his concern that he would have to complete formalities involving the militia and he was afraid to approach them. The original decision-maker addressed that issue and also the fact that it was illegal for any city administration to deny registration to a person seeking to move to another part of Russia (although there had been some problems with the registration process where people were trying to relocate to some of the larger cities such as Moscow and St Petersburg). This issue was also addressed in a written submission from the applicant's migration agent to the Tribunal on 2 January 2001. Moreover, in the Tribunal hearing the issue of relocation was canvassed in some detail. In particular the Tribunal asked the applicant why he did not think that he could move to Tatarstan. Implicit in this suggestion was the notion that his problems were confined to a particular area. It was made clear in the course of the hearing that the location and the possible local nature of the persecution claimed by the applicant was a significant matter. Not only was an opportunity given but the opportunity was taken to address this issue. The issue of relocation was the subject of further written submissions from the applicant's adviser after the hearing on 18 April 2003 in which the adviser took issue with the Tribunal's suggestion that the applicant was able to relocate within Russia. That submission addressed the applicant's claim that after he had applied to the court he became a political enemy of the Russian authorities and hence could not relocate. This claim was considered but rejected by the Tribunal.

25. In the Tribunal reasons for decision the Tribunal specifically addressed the issue of relocation and the matters raised by the applicant and his adviser, in particular his assertion that because he was a witness to human rights violations he posed a danger to the authorities and that he believed that the next step would have been to get rid of him physically. In that context the Tribunal concluded there was nothing in the applicant's account to suggest that he was regarded by the Russian authorities at the national level as an opponent of the regime's course and policies as had been suggested by his representative in the post-hearing written submission (something which addressed whether his problems were local) or that the Russian authorities at the national level would have any reason to pursue him or persecute him if he had moved to Tatarstan. Indeed, as the Tribunal pointed out, it had put to the applicant that as far as the local militia department in St Petersburg was concerned his evidence suggested that they would have been happy to see him move to Tatarstan. It is clear from all the material before the court that the critical issues were brought to the attention of the applicant and that he had the opportunity to comment on such issues. No denial of procedural fairness is established.

26. Moreover the applicant's complaint about the Tribunal's failure to raise with him its view about the local nature of any persecution does not traverse or challenge in any way the alternative basis for the Tribunal decision that even if the persecution occurred as claimed, it did not bear any Convention motivation and that any persecution he claimed to fear did not have the requisite connection to one of the five Convention reasons. The Tribunal found that even if the events complained of had occurred it did not accept that they occurred for reasons relating to the applicant's ethnicity or by reason of any political opinion imputed to the applicant.

27. As clarified in written submissions the applicant's second main ground was that the Tribunal erred in finding that his complaint to "higher authorities" was not an expression of political opinion. It was contended that the Tribunal failed to understand that the applicant's claim was, as had been the case in V v MIMA, that his decision to apply to higher authorities to defend his rights and expose criminal and unlawful activities of local agents and its authorities was a reflection of his opposition to and attempt to expose corruption and that he had claimed that he was persecuted because of his attitude of resistance to systemic corruption of and criminal activity by government officials.

28. The Tribunal correctly identified that, in some circumstances, resistance to systemic corruption could be regarded as an expression of political opinion. It referred to the Full Court's decision in V and also to the decision of Merkel J in Zheng v Minister for Immigration & Multicultural Affairs [2000] FCA 670 at [33]. Having correctly identified the applicable principles the Tribunal found as a matter of fact that in this case the applicant's actions did not represent an attitude of resistance to systemic corruption, but rather, what the applicant claimed he had done (and this was only on the basis that his evidence was accepted which it was not), was to pursue the legal remedies he believed were available for the persecution he claimed to have suffered and hence he was reporting alleged criminal conduct by individual members of the militia rather than exhibiting any form of opposition or defiance to the authorities. In other words it did not accept that his actions were an expression of political opinion. The Tribunal also took into account the fact that, as in Zheng, there was nothing in the evidence to suggest that the Russian authorities viewed the applicant's actions as an expression of political opinion.

29. In V the Full Court of the Federal Court considered whether there had been a failure by a Tribunal to comply with s430 of the Migration Act. In that context it held that the Tribunal erred in failing to make findings about aspects of an applicant's claims, in particular whether corrupt elements in Russia might target him because of his opposition to and attempts to expose corruption and in relation to his claims of political persecution. The applicant in that case claimed not only that he had been approached by a corrupt official, refused to co-operate, had been approached by the mafia to pay protection money and had been subject to an attempted kidnapping but also that he had been involved with a friend in obtaining information about institutionalised corruption with the intention of challenging systemic corruption. In that context Wilcox J considered whether opposition to corruption could be considered an expression of political opinion (see [15]-[16]) and suggested that it was "enough that a person holds (or is believed to hold) views antithetic to instruments of government, and is persecuted for that reason" (at [16]). However, while his Honour rejected the submission that an attitude of resistance to systemic corruption of and criminality by government officials could not fall within the description of political opinion he stated: "Whether the particular resistance amounts to an attitude having a political dimension, or whether it is simply a product of other causes such as fear of detection, is, of course, a question of fact for determination in the particular case" (at [18] and see to the same effect Hill J at [32]). As Merkel J suggested in Zheng at [33]-[35] "It needs to be emphasised that where individual, rather than systemic, corruption is exposed it is less likely that the act of exposure will be one in which a political opinion will be seen to have been manifested. This is because the exposure in that instance is more likely to be seen as the reporting of criminal conduct rather than as any form of opposition to, or defiance of, State authority or governance". As his Honour also went on to say, the question of whether there is a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the well-founded fear of persecution is a question of fact for the Tribunal.

30. In this case it is clear from reading the Tribunal reasons for decision as a whole that the Tribunal considered but did not accept that the applicant's actions were an expression of actual or imputed political opinion. Such a question was a matter for the Tribunal. Its conclusions were open to it on the material before it and no jurisdictional error is demonstrated in the manner in which it approached its task. The Tribunal understood and applied the law correctly. It did not fail to consider or ask itself whether the particular conduct of the applicant amounted to an attitude having a political dimension. It considered whether a political opinion was manifested or apparent in the actions of the applicant. It did not accept that his actions were an expression of political opinion or that they would be so viewed by the Russian authorities. These findings were a matter for the Tribunal.

31. After the hearing the applicant provided the court with a copy of the decision in SZARH v MIMIA [2004] FMCA 615 in which Raphael FM found a jurisdictional error in that a Tribunal had failed to ask itself whether there was a causal nexus between the actual or perceived political opinion said to have been manifested by the exposure of corruption and the alleged well-founded fear of persecution. In that case an applicant claimed to have made a documentary exposing local government corruption which resulted in him being physically assaulted and threatened. His Honour observed that it would not be difficult to ascribe an imputed political motive to the actions of the applicant and his colleague who were investigative journalists and film-makers with no personal relationship with the corrupt officials and whose purpose in exposing the corruption was to broadcast it to the community. In those circumstances the Tribunal had erred in failing to consider or ask itself whether the conduct experienced by the applicant could amount to persecution by reason of actual or imputed political opinion. It had confined itself to a consideration of the motivation for the harm inflicted on the applicant, which it assessed as being the result of common criminal activity and therefore outside the Convention. His Honour referred to SHKB v MIMIA [2004] FCA 545 in which Selway J had commented at [12] that an attempt by a Tribunal to draw a distinction between Convention-based reasons and retribution involved an error, pointing out that as the High Court held in MIMA v Singh (2002) 209 CLR 533 where an act of revenge or retribution is derived from or arises out of a political act or campaign then the act of revenge or retribution may be a political act (see 544-545, 550-553 and 577-578). However in this case the Tribunal did not err in the same manner as it considered whether, but did not accept that what the applicant had done was an actual or perceived manifestation of political opinion. It considered the motivation of the applicant in pursuing legal remedies and also the absence of any evidence to suggest that the Russian authorities viewed the applicant's actions as an expression of political opinion. What was critical was that the particular actions of the applicant were not considered by the Tribunal to have the requisite political dimension (cf Y at [17]-[18] per Wilcox J). The question of a causal nexus did not arise as it was found that the conduct of the applicant was not an expression of political opinion.

32. In his oral submission the applicant contended that the Tribunal "missed out" the fact that he had applied to the General Prosecutor's Office and to the City Court which he claimed indicated that his problems were not local as such organisations were State authorities. However it is not apparent that the Tribunal failed to take into account or misunderstood the applicant's claims in this regard. First the Tribunal did not overlook the fact that he had applied to these bodies. The Tribunal decision makes several references to the applicant's claims about the prosecutor's office and the court, referring not only to his claim to have been singled out by the militia or persons related to the law enforcement authorities in St Petersburg but also to his claims about his complaints and that the public prosecutor's office and the court failed to protect him from persecution. While the Tribunal did not accept either of these aspects of the claims it is clear that it understood the way in which the matters were put forward by the applicant. The applicant did not put to the Tribunal that the fact that the public prosecutor's office and the central municipal court were State authorities was an impediment to relocation. It does not in any event necessarily follow that because the public prosecutor's office and the central municipal court are State authorities that the problems of the applicant were not local in nature. The claims made by the applicant in the Tribunal hearing made it clear that he was complaining about persons in a specific local militia department. The Tribunal found, as was open to it on the material before it that there was nothing in the applicant's account to suggest that the Russian authorities "at a national level" regarded him as a political opponent or would have had any reason to pursue or persecute him if he had moved to Tatarstan. The applicant's claims in this respect were considered but rejected.

33. No jurisdictional error is established. Hence the application must be dismissed.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Barnes FM

Associate:

Date: 30 November 2004
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