Case: SZATV v Minister for Immigration and Citizenship (2007) 237 ALR 634
Outcome: applied
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 S ZFDV 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. 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. Associate: Dated: 2 November 2007 The appellants appeared in person Counsel for the First Respondent: Mr C Mantziaris Solicitor for the First Respondent: Blake Dawson Waldron Date of Hearing: 31 October 2007 Date of Judgment: 31 October 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1667.html