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MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT applied the correct test of effective protection in a third country - whether findings of fact reasonably open - application dismissed.

PRACTICE AND PROCEDURE - Observations on the desirability of applicants refining their applications to clearly identify the real area of dispute, following the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth.

SZAAX v Minister for Immigration [2003] FMCA 43 (19 February 2003)

SZAAX v Minister for Immigration [2003] FMCA 43 (19 February 2003)
Last Updated: 5 March 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAAX v MINISTER FOR IMMIGRATION
[2003] FMCA 43



MIGRATION - Review of Refugee Review Tribunal decision affirming a delegate's refusal of a protection visa - whether the RRT applied the correct test of effective protection in a third country - whether findings of fact reasonably open - application dismissed.

PRACTICE AND PROCEDURE - Observations on the desirability of applicants refining their applications to clearly identify the real area of dispute, following the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth.



Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.36, 474, 475A

Minister for Immigration v Thiyagarajah (1997) 80 FCR 543

Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2

Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437

Applicant:
SZAAX



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ1001 of 2002



Delivered on:


19 February 2003



Delivered at:


Sydney



Hearing date:


19 February 2003



Judgment of:


Driver FM



REPRESENTATION

Solicitors for the Applicant:


Michael Jones, Solicitor



Counsel for the Respondent:


Mr T Reilly



Solicitors for the Respondent:


Australian Government Solicitor



ORDERS

(1) Application dismissed.

(2) Applicant to pay the Minister's costs and disbursements of and incidental to the application, fixed at $4,000.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ1001 of 2002

SZAAX


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT
(Revised from transcript)

1. This ex tempore judgment relates to an application to review a decision of the Refugee Review Tribunal ("the RRT") made on 27 August 2002 and handed down on 18 September 2002. The matter proceeded today on the basis of an amended application filed in court, which sought relief under s.39B of the Judiciary Act 1903 (Cth) and s.475A of the Migration Act 1958 (Cth) ("the Migration Act"). The applicant claims a declaration that the decision of the RRT is not a privative clause decision within the meaning of s.474 of the Migration Act, a declaration that the decision is void and of no effect, an order that the RRT reconsider the applicant's application for review according to law, and costs.

2. The grounds of the application are that the RRT misunderstood the principle of "effective protection" which led the RRT to apply a wrong test as to whether Australia had protection obligations in respect of the applicant. Since such a determination is fundamental to the jurisdiction of the RRT, the applicant asserts that the RRT failed to make a decision under the Migration Act which would be protected as a privative clause decision, and its decision is void for jurisdictional error.

3. Obviously, this application is based upon the decision of the High Court in Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2, in which the High Court decided that, in addition to the Hickman provisos determining the application of the privative clause, a decision is not a privative clause decision protected by s.474 if the decision is infected by an error of law going to jurisdiction, including a breach of procedural fairness.

4. We are dealing today with an amended application. I note that in this matter, as in a number of other matters that I have dealt with since the High Court decision, the High Court decision does appear to have had a positive impact in that it has encouraged applicants' legal representatives to refine the area of challenge to RRT decisions to draw out what is the real area of dispute. That is a development to be commended and encouraged.

5. Mr Jones, for the applicant, has filed written submissions. The background facts are dealt with in paragraphs 1 to 5 of those submissions, as indeed they are in written submissions filed on behalf of the respondent Minister, by Mr Reilly. The background facts are accurately dealt with in those written submissions in paragraphs 1 to 3. Briefly, the applicant is a Russian citizen who was born in what is now the Republic of Georgia. He relocated to Russia in 1980 and lived there until 1999. He married and had two children there. In 1999, he went with his family to live in Georgia and travelled to Australia alone on 21 February 2000. His wife and children later returned to Russia. It seems that the applicant formerly had Soviet citizenship and that, following his relocation to Russia, that has translated into citizenship of the Russian Federation, although he was born in the Republic of Georgia.

6. The applicant applied for a protection visa on 22 March 2000 which was refused by a delegate of the respondent on 26 April 2000. He applied to the RRT for a review of that decision on 19 May 2000. The RRT's decision was handed down on 18 September 2002. The RRT found that the applicant was a citizen of Russia, considered claims in evidence relating to the treatment of "Caucasians" in Russia, and made no finding as to whether the applicant had a well-founded fear of persecution in that country.

7. The RRT applied Article 33 of the Refugees Convention and s.36 of the Migration Act, which provides that:

(1) There is a class of visas to be known as protection visas.

Note: See also Subdivision AL.

(2) A criterion for a protection visa is that the applicant for the visa is:

(a) a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol; or

(b) a non-citizen in Australia who is the spouse or a dependant of a non-citizen who:

(i) is mentioned in paragraph (a); and

(ii) holds a protection visa.

(3) Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national.

(4) However, if the non-citizen has a well-founded fear of being persecuted in a country for reasons of race, religion, nationality, membership of a particular social group or political opinion, subsection (3) does not apply in relation to that country.

(5) Also, if the non-citizen has a well-founded fear that:

(a) a country will return the non-citizen to another country; and

(b) the non-citizen will be persecuted in that other country for reasons of race, religion, nationality, membership of a particular social group or political opinion;

subsection (3) does not apply in relation to the first-mentioned country.

(6) For the purposes of subsection (3), the question of whether a non-citizen is a national of a particular country must be determined solely by reference to the law of that country.

(7) Subsection (6) does not, by implication, affect the interpretation of any other provision of this Act.

8. The RRT found that the applicant would be accorded effective protection in Georgia and that it was therefore unnecessary to consider whether he is also excluded from Australia's protection in accordance with s.36(3) of the Migration Act. Mr Jones, in his written and oral submissions, has put to me that the RRT committed an error of law going to jurisdiction in that the RRT applied the wrong test to the question of whether effective protection is available in a third country.

9. Mr Jones submits that the RRT was incorrect in applying a test with two elements, namely whether the applicant would suffer convention persecution in Georgia and whether he was at risk of refoulement from Georgia to Russia. Mr Jones submits that before it is open to a decision-maker under the Migration Act to determine that effective protection is available in a third country, it is necessary to consider the reasonableness of location in that third country in the same way that it is necessary to consider the reasonableness of internal relocation in a country where persecution is present in some parts but not other parts.

10. Mr Jones took me to the decision of Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 52 FCR 437. In that case, the Federal Court drew attention to the need to consider the reasonableness of internal relocation in cases where Convention based persecution is found to exist in an applicant's country of nationality in some parts but not other parts.

11. In his submissions, Mr Reilly disputes the central proposition put on behalf of the applicant. Mr Reilly submits that there is no authority for the test of reasonableness proposed by Mr Jones and that it is plainly wrong. He submits that the concept of effective protection derives from Article 33 of the Refugees Convention which poses essentially the same test as Article 1A of the Convention and the same standard applies in both cases. Mr Reilly took me to the Federal Court decision in the Minister for Immigration v Thiyagarajah (1997) 80 FCR 543, in particular at page 565 at letter A.

12. Mr Reilly submits that the RRT was satisfied that any discrimination that the applicant may suffer in Georgia did not rise to the level of persecution and concluded that the applicant did not have a well-founded fear of persecution in Georgia (RRT decision, court book, pg 108.1). Mr Reilly submits that the RRT was correct to hold that the applicant had effective protection in Georgia (court book, pg 108.2), and that the RRT applied the right test in so holding.

13. On this question, I am persuaded by Mr Reilly that the weight of authority establishes that there is no reasonableness test in relation to relocation to a third country of refuge. It is understandable that a reasonableness test is necessary when considering the question of internal relocation in a country where Convention based persecution is found to exist at least in part. However, there is no logical reason to distinguish between an applicant sent back to a country of origin where there is no Convention based persecution and an applicant being sent to a third country of refuge where there is no Convention based persecution.

14. I find, therefore, that the RRT applied the correct test in satisfying itself that the applicant would not be subject to convention based persecution if he relocated to the Republic of Georgia. I accept that the conditions in the country of refuge may influence a finding on the question of whether Convention based persecution exists. The applicant in this case was concerned that he would require an internal identification document known as a "propiska"; that he would be unable to obtain such a document; and that without it he would be unable to work or obtain a driver's licence and that he would be unable to obtain education for his children.

15. While making no specific finding on those assertions, it is apparent from the reasons for decision of the RRT that the presiding member doubted the accuracy of the applicant's concerns based upon country information that no internal identification documentation of the kind believed to be required by the applicant would in fact be required. The RRT made no finding of fact on the questions of whether the applicant would be able to work and the extent to which he would be able to obtain education for his children. The RRT member was, however, satisfied that whatever hardship, or indeed discrimination as a Russian citizen, the applicant would suffer in Georgia, that did not amount to convention based persecution and, on that basis, found that the applicant could obtain effective protection in Georgia and, accordingly, Australia had no protection obligations in relation to him.

16. In my view, that conclusion was reasonably open to the RRT on the material before it.

17. Accordingly, as the RRT applied the correct test of effective protection in a third country, and made findings of fact that were reasonably open to it, I find that no jurisdictional error was committed by the RRT.

I will dismiss the application.

18. I will order that the applicant pay the respondent's costs of and incidental to the application, which I fix in the sum of $4,000.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 28 February 2003
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