SZAKD v Minister for Immigration
[2004] FMCA 78
•19 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAKD v MINISTER FOR IMMIGRATION | [2004] FMCA 78 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming ethnic and religious persecution and persecution by reason of his homosexuality in Ukraine – jurisdictional error – RRT asked itself the wrong question in assessing the claim based upon homosexuality – RRT made adverse credibility finding based upon a subjective view of what a practising Roman Catholic could be expected to do – RRT constructively failed to consider the claim based on Russian ethnicity – application granted. |
Migration Act 1958 (Cth), ss.36, 91R, 414
Appellant P119 of 2002 v Minister for Immigration [2003] FCAFC 230
Appellant S395 of 2002 v Minister for Immigration; Appellant S [2003] HCA 71
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Bin Lu & Ors v Minister for Immigration [2004] FCA 181
Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
Htun v Minister for Immigration (2001) 194 ALR 244
Mahon v Air New Zealand [1984] AC 808
Minister for Immigration v Rajamanikkam (2002) 210 CLR 222
Minister for Immigration; ex parte Miah (2001) 206 CLR 57
NACB v Minister for Immigration [2003] FCAFC 235
Plaintiff S157 of 2002 v Commonwealth of Australia (2003) 211 CLR 476
QAAH v Minister for Immigration [2004] FCAFC 9
Re Minister for Immigration; ex parte Applicant S20 of 2002 (2003) 198 ALR 59
ReMinister for Immigration; ex parte Durairajasingham (2000) 168 ALR 407
ReMinister for Immigration; ex parte Palme [2003] HCA 56
ReMinister for Immigration; ex parte PT (2001) ALJR 808
SCAT v Minister for Immigration [2003] FCAFC 80
Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] AC 1,014
Somaghi v Minister for Immigration (1991) 31 FCR 100
VAAW v Minister for Immigration [2003] FCAFC 202
WACO v Minister for Immigration [2003] FCAFC 171
| Applicant: | SZAKD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ603 of 2003 |
| Delivered on: | 19 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 19 February 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience |
| Counsel for the Respondent: | Ms M Allars |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The Court declares that the decision of the Refugee Review Tribunal made on 28 February 2003 and handed down on 21 March 2003 is invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Tribunal.
A writ of mandamus shall issue, requiring the Tribunal to re-determine the matter according to law.
The respondent shall pay the applicant’s costs and disbursements of and incidental to the application, fixed in the sum of $3,250.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ603 of 2003
| SZAKD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 28 February 2003 and handed down on 21 March 2003. The RRT affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The relevant background facts are accurately set out in paragraph 2 of written submissions prepared on behalf of the Minister by Ms Allars and
I adopt that paragraph for the purposes of this judgment:
The applicant, a citizen of the Ukraine, of Russian ethnicity and Roman Catholic religion, sought a protection visa on the ground that he had a well founded fear of persecution by the paramilitary organisation Ukranian National Assembly – Ukrainian Self Defence Organisation (“UNSO”) on account of his Russian ethnicity. He also claimed that he faced persecution in the Ukraine by reason of his Jewish Christian name, although he had been raised as, and was, a practising Roman Catholic. He also claimed on having become a practising homosexual since his arrival in Australia.
In his application for the protection visa the applicant’s claim was confined to the Convention ground of persecution by UNSO on account of his Russian ethnicity. He said that in December 1998 at a dance party he was beaten and attacked by members of UNSO and it was useless to seek the protection of the police (court book, pages 6-9).
In his application to the RRT the applicant claimed that (court book, pages 61-64):
he feared he would be attacked or discriminated against in the Ukraine because of his Russian and Jewish background;
he had a secret interest in homosexuality before leaving the Ukraine and had become a practising homosexual since his arrival in Australia, although he was still confused about his sexual identity; and
the Roman Catholic religion was unusual in his area of the Ukraine and he was a practising Catholic in Australia.
RRT’s reasons for affirming refusal of visa
The RRT accepted the applicant’s evidence that he was of Jewish ancestry, had a Russian ethnic background, and was raised in the Roman Catholic faith (court book, page 316.4). However the RRT did not accept that he was of homosexual orientation (court book, page 316.4).
The RRT disbelieved the applicant in relation to his evidence that he was a homosexual.
The RRT found that the applicant would not face a real chance of persecution on the other grounds claimed because:
i)since the Ukrainian government has banned the UNSO and does not support such ultra nationalist movements, it was not unable or unwilling to take action to protect him from harm against the UNSO (court book, page 317.1);
ii)in any even the harm he faced from UNSO was not serious harm for the purposes of s.91R of the Migration Act 1958 (Cth) (“the Migration Act”) (court book, page 317.2);
iii)he would not face harm on account of his Russian name because country information indicates that Russian speakers form a sizeable minority in the eastern part of the Ukraine and the rights of ethnic minorities are generally respected in the Ukraine (court book, page 317.9);
iv)in relation to his Jewish Christian name, anti-Semitism in the Ukraine was now restricted to less serious acts, and state protection would be available (court book, pages 319.1-320.3);
v)in relation to his Roman Catholicism, there was no evidence he had been mistreated on that account (court book, page 320.8);
vi)considered cumulatively his claims did not amount to a risk of serious harm so as to amount to persecution (court book, page 321.5).
The RRT concluded here was not a real chance that, should he return to the Ukraine, he would face persecution for a Convention reason (court book, page 321.7).
The issue of whether the applicant was in fact confused about his sexual identity is a live issue in these proceedings. However, it is clear that in his statutory declaration provided to the RRT (court book, page 63) the applicant stated that:
I am still confused about my sexual identity.
Legislation
I adopt paragraph 3 of Ms Allars’ submissions relating to the applicable legislation:
Section 36(2) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non‑citizen in Australia to whom Australia has protection obligations under the Refugees Convention as amended by the Refugees Protocol. Section 91R of the Act provides that Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article, unless that reason is the essential and significant reason for the persecution; and the persecution involves serious harm to the person and systematic and discriminatory conduct. “Serious harm” is defined in s 91R(2).
The question for the Court is whether the RRT fell into error in the sense set out by the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 (“Plaintiff S157/2002”).
The application and the evidence
This matter proceeded on the basis of an amended application filed in chambers on 16 February 2004. That application seeks the issue of constitutional writs plus costs upon the following grounds:
The RRT committed a jurisdictional error of law in that it failed to consider and decide on the applicant’s case on the basis of the facts that it found.
Particulars
(a)Failure to consider the ramifications of the finding that the applicant was confused as to his sexuality.
The RRT committed jurisdictional error of law, in that it made a finding of a fact central to its consideration of the applicant’s fear of persecution for reasons of his claimed homosexuality in the complete absence of evidence probative of that fact.
Particulars
(a)The applicant did not, as stated by the RRT, admit at the hearing that he remained confused about his sexuality.
The RRT breached the requirements of procedural fairness/natural justice in that it failed to advise of an adverse conclusion which had been arrived at which was not obviously open on the known material.
Particulars
b)The RRT concluded that the applicant’s failure to consider his claimed homosexuality in the context of his Catholicism undermined his claim that he was indeed homosexual.
At the hearing of this matter on 19 February 2004 I permitted Mr Karp to further amend the application orally to add the following ground:
The RRT constructively failed to consider the applicant’s claim of persecution based upon his Russian ethnicity.
Particulars
b)The applicant did not, as found by the RRT, live in eastern Ukraine. He lived in the city of Lviv (Lvov) in western Ukraine.
I gave leave for this amendment over the objections of Ms Allars. The issue of the error apparently made by the RRT on the question of where in Ukraine the applicant lived was identified by me during the course of the hearing.
I received into evidence the book of relevant documents (“the court book”) and an affidavit filed on 16 February 2004 by Nigel James Dobbie annexing a transcript of the hearing before the RRT.
Submissions
Mr Karp makes the following submissions on behalf of the applicant:
The applicant is a Ukrainian national born on 18 December 1975 who arrived in Australia on 22 March 2000 (court book, page 3). An application for a protection visa pursuant to s.36 of the Migration Act, 1936, was received by the Department of Immigration on 1 May 2000 (CB 13). Within the space provided (CB 6-9) in the form 866 he made claims of fearing persecution in the Ukraine because of:
a)his Russian nationality – he has a very distinctive Russian surname,
b)his Jewish antecedents – his mother is Jewish and he has a given name which is identifiably Jewish.
No further claims were made before the application was rejected by a delegate of the respondent Minister on 5 April 2001 (CB 37-45). An application to the RRT was lodged on 4 May 2001 (CB 46-49). On 13 June 2002 the applicant changed his migration agent, appointing his current solicitors (CB 55-56). An invitation to attend a hearing pursuant to s.425 Migration Act, set down for 6 September 2002, was sent by the RRT on 27 June 2002 (CB 53). On 30 August 2002 a comprehensive statutory declaration made by the applicant was submitted to the RRT (CB 61-64), along with voluminous supporting documentation (CB 67-292).
In his statutory declaration the applicant elaborated on his previous claims, and advanced two additional claims, that he feared persecution as a practicing Catholic, and as a homosexual. He stated that as a teenager he had fantasies about having sex with men, but this was impossible in the Ukraine because of his profile as a sportsman and societal discrimination, amounting to persecution of homosexuals. In his statutory declaration he stated that he had “been with women in the Ukraine because this is what was expected of me from my fellow students with whom I had these adventures but I never felt comfortable or happy” (CB 62 at [15]). He went on to say:
“In Sydney I have had had several relationships with men who I have met. I have been to several gay venues in the Oxford Street area. I have attended the Mardi Gras each year and have really enjoyed the festival. Because I am considered to be good looking I have a lot of guys making advances to me. I am still confused about my sexual identity….” (CB 63 at [18]).
At hearing the following exchange occurred:
Q161. Right, so when do you say that you first become involved in homosexual activity in Sydney?
ALast year, a year ago. That’s when there was actual contact. I did have friendships before that but I didn’t – I didn’t sort of decide on any further steps at that time.
Q162The note that I’ve made is that your first actual homosexual activity in Sydney was roughly in September 2001.
AAll right.
Q163Is that reasonably accurate?
AMmm.
Q164All right. Now - - -
AIt was winter, yeah, around September.
Q165The other thing that I noticed particularly in your statement was that you said, “I am still confused about my sexual identity.” That suggests to me that you are not a person who has finally made up your mind that you are a homosexual.
AWell, it is written like that because I have had sex with a woman as well and I cannot say that I’m a homosexual if I have sex with a woman – that’s in Ukraine.
Q166Yes, I saw that.
AI know – I know what it is and I can compare it.
Q167And I saw that severally.
AWhat is severally?
Q168Well, I saw where you said that you had had some relationships with women in Ukraine before coming to Australia but I wonder if pressing that you would care to explain to me what confuses you at the present time about your sexual identity.
AWell, I haven’t had too many contacts – had too many relationships, I’ve had only two partners. I cannot say, for instance, that I’ve been heterosexual until 24 years of age and then suddenly became homosexual, I can’t say that, that’s why but now I’m with men only. This girl who is my witness, I mean, we lived in the same place for four months but we had no relationship and she was offended by that.
Q169But you’ve now told me that you regard yourself as being exclusively homosexual. Why say only a week or so ago that you’re still confused about your sexual identity?
AWell, I don't know, because I had sex with women. I thought that it would be incorrect to write anything else.
A little later in the hearing the following exchange occurred:
Q189I suppose my other difficulty is that accepting that you are a practising Roman Catholic, how you reconcile your Roman Catholic faith with your homosexual practices in Sydney - - -
AWell, I never thought about that.
Q190.- - - because I certainly accept that you’re a Roman Catholic.
AI never thought about that.
The RRT decision
The RRT addressed the claims of Russian nationality, Jewish ancestry and Catholic religion in ways that are legally unassailable (CB 315-318, 319-321). It is the analysis of the claim of homosexuality that the applicant contends is legally erroneous.
The passage sought to be impugned is as follows:
At hearing the applicant admitted to still being confused about his sexual identity. Although the applicant sought to explain this statement it causes me to have serious doubts that the applicant is a homosexual. Further at the hearing when asked how as a practicing Roman Catholic he reconciled his homosexuality with the Catholic faith his response was that he had never considered the matter. This response, together with his confusion with respect to his homosexuality is sufficient to satisfy me that the Applicant’s claims of being homosexual are not genuine. Having regard to the current teachings of the Catholic Church, I am firmly of the view that a person of single sex orientation must have at least considered their position in the Church and whether they wished to continue practise (sic) Catholicism. … As I am not satisfied that the claims of the Applicant that he is a homosexual are genuine, it follows that I do not accept that there is a real chance of him suffering Convention based persecution upon his return to Ukraine for the reason of his being a member of a particular social group – homosexuals in Ukraine.” (CB 318)
Jurisdictional error of law
(i) Failure to deal with the applicant’s case as formulated by the RRT.
The RRT rejected the applicant’s claim that he was homosexual, citing cumulatively the statement ascribed to the applicant at hearing, that he was confused about his sexual orientation, and his failure to consider his position as a homosexual and a Catholic.
There is no finding, either overt or implied, that the RRT rejected the statement made by the applicant in writing, and incorrectly attributed to him at hearing, that he remained confused as to his sexuality. That finding as to confusion can only be of the situation current at the date of the hearing. It says nothing of how the “confusion” may be resolved. For a person to be confused about sexual orientation is not to know which way he or she will swing – towards heterosexuality, homosexuality, or perhaps bisexuality. In this case, the RRT failed to consider the ramifications of the claim that it appeared to accept, being that the applicant was confused as to his sexuality. It made no attempt to consider the objective risk of persecution should the applicant eventually decide that he was either homosexual or bisexual.
Once the RRT found that the applicant was “confused” as to his sexuality it became an “integer” of the applicant’s case (see Htun v Minister for Immigration (2001) 194 ALR 244, 259 at [42], SCAT v Minister for Immigration [2003] FCAFC 80, at [29]). A failure to deal with such an “integer” amounts to a failure of the RRT to complete the jurisdictional task required of it by Part 7 of the Migration Act, and in particular by s.414. As a result of this initial failure there was, in addition, “… a serious absence of assessment of the imponderables about the future as a required component of the assessment as to whether there was a real as opposed to a remote chance of persecution (see Htun at ALR 259-60 at [43]).
(ii) In the alternative – there was no evidence of a crucial fact found by the RRT
The RRT stated, at CB 318.5, “At hearing the applicant admitted to still being confused about his sexual identity.” It is the applicant’s case that he did not so admit, and the relevant passage from the transcript, extracted at para 4 above, bears out his contention.
This is not merely a mistake of fact. The RRT’s reasons at CB 318 indicate that the admission attributed to the applicant, considered cumulatively with the RRT’s opinion that, “a person of single sex orientation must have at least considered their position in the Church” led to the rejection of the claim of homosexuality. The attributed admission was thus a central or pivotal finding.
An administrative decision maker must base his or her decision on some evidence, probative of the issue to be decided (see Minister for Immigration v Rajamanikkam (2002) 210 CLR 222 at [25]; ABT v Bond (1990) 170 CLR 321, 367 per Deane J; Re Minister for Immigration; ex parte Applicant S20/2000 (2003) 198 ALR 59 at [163] per Kirby J; Secretary of State for Education & Science v Tameside Metropolitan Borough Council [1977] AC 1,014, 1,047; Mahon v Air New Zealand [1984] AC 808, 820 etc). Whether characterised as an element of natural justice or an independent ground of judicial review, a decision based on a finding for which there is no evidence is infected by jurisdictional error.
(iii) Further in the alternative – a breach of the rules of natural justice
The passage extracted from the transcript at para 5 above indicates that the RRT asked the applicant about the whether he had thought about how to reconcile his Catholicism with his homosexuality. To that extent, and only to that extent, the RRT complied with the requirement to put the case against the applicant to him.
That obligation, at least in this case, goes further. In Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd(1994) 49 FCR 576 at 591-592 the Full Court of the Federal Court stated the principle as follows:
Where the exercise of a statutory power attracts the requirement for procedural fairness, a person likely to be affected by the decision is entitled to put information and submissions to the decision-maker in support of an outcome that supports his or her interests. That entitlement extends to the right to rebut or qualify by further information, and comment by way of submission, upon adverse material from other sources which is put before the decision-maker. It also extends to require the decision-maker to identify to the person affected any issue critical to the decision which is not apparent from its nature or the terms of the statute under which it is made. The decision-maker is required to advise of any adverse conclusion which has been arrived at which would not obviously be open on the known material. Subject to these qualifications however, a decision-maker is not obliged to expose his or her mental processes or provisional views to comment before making the decision in question. [1]
The applicant submits that the conclusion as to the applicant’s failure to consider his sexual orientation in the context of his religion is not obvious, and should have been revealed to the applicant for further elaboration or comment.
[1] Cited with approval in Re Minister for Immigration; ex parte Miah (2001) 206 CLR 57 at 117-8 per Kirby J, and at least without disapproval in Re Minister for Immigration; Ex parte Palme [2003] HCA 56 at [22] per Gleeson CJ, Gummow & Heydon JJ; cf Re Minister for Immigration; ex parte PT (2001) ALJR 808 813A (Kirby J); Somaghi v Minister for Immigration (1991) 31 FCR 100, 108.9 (Jenkinson J), 119-120 (Gummow J); WACO v Minister for Immigration [2003] FCAFC 171 at [46].
Following the amendment of the application to add the claim in relation to the erroneous finding of the RRT on where the applicant lived, impacting upon his claim of persecution on the basis of his Russian ethnicity, I understood Mr Karp to be withdrawing paragraph 6 of his written submissions insofar as it conceded that the RRT’s decision on his claim based on his Russian ethnicity was “legally unassailable”.
Ms Allars makes the following written submissions on behalf of the Minister:
Grounds 1 and 2: “Serious harm” in s.91R of the Act
The RRT properly stated the test of “serious harm” in s.91R of the Act.[2]
[2] Court book, page 295.8. See generally QAAH vMinister for Immigration [2004] FCAFC 9 at [10] – [13].
It is assumed that this Ground relates to findings of the RRT other than those concerning the applicant’s claim based on his homosexuality, since that is the subject of Ground 4.
The RRT concluded that the applicant did not suffer “serious harm”, as that expression is defined in s.91R of the Act, from the UNSO and that there was not a real chance of his being persecuted by the UNSO if he returned. This conclusion was based on the following findings:
i)the mistreatment claimed was one relatively minor assault, when the applicant was beaten after leaving a college dance party in December 1998 (court book, page 317.3);
ii)country information indicated that the Ukrainian government had banned UNSO and was not unwilling or unable to take action against this organisation and would provide the same degree of protection to the applicant as to other citizens (court book, pages 317.4-317.6); and
iii)although the applicant claimed harassment due to his Russian surname, country information indicated the rights of ethnic minorities are respected in the Ukraine, and in particular that Russians form a sizeable minority in east Ukraine (court book, page 317.9).
On this evidence it was open to the RRT to conclude that there was no “serious harm” within the definition of that expression in s.91R(2) of the Act, given the absence of evidence of a threat to life or liberty, or significant physical harassment or ill-treatment of the applicant, or significant economic hardship, denial of access to basic services or of capacity to earn a livelihood. Further, there was no evidence in relation to the applicant himself of systematic and discriminatory conduct within s.91R(1)(c) of the Act.
The RRT concluded that the applicant did not suffer “serious harm,” by reason of his Jewish Christian name and that there was not a real chance of his being persecuted for this reason if he returned. This conclusion was based on the following findings:
i)any harm suffered was occasional resentment, jibes and insults because of his name (court book, page 320.1);
ii)country information that anti-Semitism was declining in the Ukraine (court book, pages 319.3-319.8); and
iii)in relation the applicant’s claim of difficulty in obtaining employment, country information indicated that Jewish people are able to obtain employment (court book, pages 319.10-320.1).
On this evidence it was open to the RRT to conclude that there was no “serious harm” by reason of the Jewish Christian name within the definition of that expression in s.91R(2) of the Act.
The RRT concluded that the applicant did not suffer “serious harm,” by reason of his Roman Catholicism and that there was not a real chance of this occurring if he returned. This conclusion was based on the following findings:
i)the applicant did not claim he had been harassed or harmed by reason of his religion in the Ukraine, or that he was prevented from practising that religion (court book, page 320.7); and
ii)country evidence indicated that Roman Catholicism could be practised freely in the Ukraine (court book, page 320.6).
On this evidence it was open to the RRT to conclude that there was no “serious harm” by reason of the applicant’s Roman Catholicism.
Whether considered in isolation or cumulatively, the RRT did not err in concluding that the evidence of persecution on the Convention grounds claimed by the applicant did not meet the test set out in s.91R of the Act.
Ground 3: Rational foundation for RRT’s findings
This ground is not particularised. It is assumed that it relates to findings of the RRT other than those concerning the applicant’s claim based on his homosexuality, since that is the subject of Ground 4.
The RRT reached the findings in relation to the claims of persecution by the UNSO, by reason of the applicant’s Jewish Christian name, and by reason of his Roman Catholicism on the basis of evidence, as set out in paragraphs 4.2 to 4.8 above. There was a factual basis for the findings made. This was not a case where there was no evidence on the basis of which the findings could be made.[3]
[3] See Minister for Immigration v Rajamanikkam (2002) 210 CLR 222; Appellant P119/2002 v Minister for Immigration [2003] FCAFC 230 at [26] per Mansfield and Selway JJ; VAAW v Minister for Immigration [2003] FCAFC 202.
The High Court’s decision in Appellant S106/2002 v Minister for Immigration[4] and its later application by the Full Court of the Federal Court,[5] establishes that illogical reasoning does not of itself constitute an error of law or jurisdictional error. No illogicality is in any event evident in the RRT’s reasoning.
[4] (2003) 198 ALR 59.
[5] See, for example, NACB vMinister for Immigration [2003] FCAFC 235 at [25]-[29] per Tamberlin , Emmett and Weinberg JJ.
There is no basis for the claim that there was no rational basis for the RRT’s findings.
Ground 4: Relevant consideration relating to homosexuality
The RRT found that the applicant’s claim that he was homosexual was a fabrication, basing this finding on (court book, pages 63.5, 303.5 – 303.10, 318.3 – 318.10):
i)the belated nature of the claim, raised only two weeks before the RRT hearing;
ii)his admission that he had not practised as a homosexual in the Ukraine and had not suffered mistreatment in the Ukraine because of his sexual preference;
iii)the applicant had said in his statutory declaration made to the RRT that he was confused about his sexual orientation; and
iv)his failure to explain how this was consistent with being a practising Roman Catholic.
Given the finding that there was no subjective fear by reason of homosexuality, the question of any objective risk of persecution did not arise. There was no occasion for the RRT to make any findings as to whether the state of Ukraine was unwilling or unable to protect homosexuals.[6]
The RRT’s decision in the present case was based on findings and inferences of fact which are supported by probative material, as set out in paragraph 6.1 above. The statement made by the applicant in his statutory declaration made on 28 August 2002 (court book, page 63.5) was a relevant consideration which the RRT was bound to take into account. It was open to the RRT to reach findings as to the applicant’s credibility, this being a function of the primary decision-maker, for which detailed reasons need not be given.[7] In fact reasons were given as to why the applicant was not believed as to the evidence he gave before the RRT that he was homosexual. It was for the RRT to determine what weight to give the applicant’s statutory declaration and his oral evidence. The RRT did not fail to take into account the relevant consideration of the applicant’s oral evidence.
Relief
No error has been established and therefore there can be no jurisdictional error on the part of the RRT. The Court should refuse the relief sought.
Accordingly the respondent submits that the application should be dismissed with costs.
[6] See Appellant S395/2002 v Minister for Immigration; Appellant S [2003] HCA 71.
[7] Re Minister for Immigration; Ex parte Durairajasingham (2000) 168 ALR 407, 423 per McHugh J.
These submissions were augmented by Mr Karp and Ms Allars in their oral submissions. In relation to the additional ground of review added orally, Mr Karp submits that the RRT made an error of fact going to its jurisdiction at paragraph 112 of the reasons for decision (court book, page 317) where the presiding member said:
Having considered the applicant’s situation as a member of the Russian ethnic minority in Ukraine. (sic) While I accept that the applicant may have experienced resentment and even some harassment because of his Russian surname, nevertheless I also accept the independent information available to me which suggests that the rights of ethnic minorities are generally respected in Ukraine and that Russians and Russian speakers form a sizeable minority in the eastern part of Ukraine, from which the applicant comes (UK Home Office, Immigration and Nationality Directorate, Country Information and Policy Unit, Ukraine – Country Assessment, October 2001, paragraph 5.23-5.24; US State Department, Bureau of Democracy, Human Rights and Labor, Ukraine – Profile of Asylum Claims and Country Conditions, June 1997, Section III A, Claims Based on “Nationality” – Russians).
Mr Karp conceded that this paragraph discloses two findings, one general and one specific. The general finding was that the country information suggested that the rights of ethnic minorities are generally respected in Ukraine. The specific finding was that Russians and Russian speakers form a sizeable minority in the eastern part of Ukraine, from which the applicant comes. The factual error was that the applicant does not come from the eastern part of Ukraine. He comes from Lviv, which is in the western part of Ukraine, close to the Polish border. There was no evidence before the RRT that the Russian minority is concentrated in that part of Ukraine. Mr Karp also relies upon the transcript of the RRT hearing:
You have these – these torch lit demonstrations where people walk with torches. You have all the ones, the younger ones all marching, you have men marching first, let’s say then women afterwards and they all will shout out things like “Glory to Ukraine.” Now, I don’t feel myself as part of that crowd and this puts pressure on me, I feel the pressure all around me. When I walk along the street – when I walk along the street I can’t even hold my head high, I have to keep looking at the footpath.
The applicant’s visa application (court book, page 6) included the claim that the Government of Ukraine promotes national intolerance “especially in the Western part of the country”. Mr Karp also adopted my proposition that the country information (for example, court book, page 335) pointed to some problems faced by ethnic minorities in the western regions of Ukraine.
In her oral submissions, Ms Allars pointed out that an error of fact does not invalidate a decision of the RRT unless some principle of law flowing from the error points to jurisdictional error. She characterised the error as a minor factual error forming no small part of the reasoning in relation to one element of the applicant’s claims. Ms Allars submits that notwithstanding any error about where the applicant lived in Ukraine the RRT was satisfied that Russians in Ukraine were not persecuted generally and that effective State protection was available in respect of whatever low level discrimination or other problems might confront members of the Russian minority.
I also received submissions on costs. Both Mr Karp and Ms Allars assessed the parties’ party/party costs at $6,500. Ms Allars submitted that even if the applicant is successful the respondent should recover part of her costs, given the late amendment of the application and the consequent additional costs incurred by the Minister. Mr Karp submitted that costs should follow the event, but conceded that in a recent ex tempore decision of Bin Lu & Ors v Minister for Immigration [2004] FCA 181 His Honour Emmett J reduced the costs award by 50 per cent where the applicant succeeded on an issue raised by the Court.
Reasoning
I reject the procedural fairness ground of review. I adopt Ms Allars’ submissions in relation to that ground. It is clear that at the RRT hearing the presiding member put to the applicant his doubt about the credibility of the applicant’s claim based upon his membership of the particular social group of homosexuals: transcript, pp 44-52, in particular at questions 170 and 190. The presiding member said at question 170:
Well, I think I really should put to you that the fact that you did not mention your sexual orientation until two weeks ago and the fact that you had not previously made any claims or given any suggestion that you are a homosexual by preference suggests to me that your recent discovery of homosexuality and your claims in that regard are of recent invention and a fabrication to strengthen your claims for a protection visa.
At question 190 the presiding member said:
I suppose my other difficulty is that accepting that you are a practising Roman Catholic, how do you reconcile your Roman Catholic faith with your homosexual practices in Sydney?
At paragraph 115 of the reasons for decision (court book, page 318) the presiding member states:
I put to the Applicant that his claims of being a homosexual, first made about two weeks before the hearing were a fabrication designed to strengthen his claims for a protection visa. Notwithstanding the denial of the Applicant that his claims of being homosexual are a fabrication, this is the conclusion to which I have come and notwithstanding that I have taken into account the independent evidence from two persons who have known the Applicant for some time and the submissions of his adviser.
The presiding member also said earlier in that paragraph:
At the hearing the Applicant admitted to still being confused about his sexual identity. Although the Applicant sought to explain this statement it causes me to have serious doubts that the Applicant is a homosexual. Further, at the hearing when asked how as a practising Roman Catholic he reconciled his homosexuality with the Catholic faith his response was that he had never considered the matter. This response together with his confusion with respect to his homosexuality is sufficient to satisfy me that the Applicant’s claims of being homosexual are not genuine. Having regard to the current teachings of the Catholic Church, I am firmly of the view that a person of single sex orientation must have at least considered their position in the Church and whether they wished to continue [to] practise Catholicism.
This was plainly a credibility finding. The presiding member rejected the applicant’s claim based on asserted membership of a particular social group of homosexuals on credibility grounds. The claim was not believed. Procedural fairness required that the RRT put its credibility concern to the applicant. The presiding member did put to the applicant his concern that the claim of homosexuality was a fabrication – a recent invention. The presiding member went on to test the applicant’s denial by asking questions about how the applicant saw his sexuality and how he reconciled his asserted homosexuality with his Catholic faith. The applicant’s complaint is that the presiding member did not specifically put to him the specific credibility concerns he had, based upon his answers. However, there is no obligation on the RRT to disclose its reasoning process in advance of its decision, once the opportunity is given to comment generally on a credibility concern raised by the RRT. Neither is there any obligation on the RRT to give an opportunity to comment on its reactions to evidence presented by an applicant in response to a credibility concern: WACO v Minister for Immigration [2003] FCAFC 171 at [46].
I also reject the no evidence ground in the application. The applicant asserts that the RRT found that at the hearing the applicant admitted to still being confused about his sexual identity. The applicant asserts that there was no evidence to support this finding. The respondent disputes that there was any such finding, arguing that the relevant finding was that the applicant’s claim was not genuine. I agree that that was the conclusion reached by the RRT in respect of the claim of homosexuality. However, in reaching that conclusion, at paragraph 115 of the RRT reasons, the presiding member did make a finding of fact that at the hearing the applicant admitted to still being confused about his sexual identity. The finding is arguably erroneous in that the applicant stated at the hearing before the RRT that “now I’m with men only” (see answer 168, transcript page 46). However, the answers the applicant gave to questions 165, 166, 168 and 169 do indicate a degree of uncertainty on the part of the applicant about how to describe his sexuality. As I have already noted, the applicant had referred to confusion about his sexuality in his statutory declaration. In my view, the answers by the applicant to the presiding member’s questions at the hearing did provide some evidentiary basis for the finding of fact made by the presiding member. Given that there existed some evidentiary basis for the finding, this ground of review must fail.
There remains the questions whether the RRT constructively failed to consider the applicant’s claims based upon his asserted homosexuality and his Russian ethnicity. As I have already noted, the claim of homosexuality was rejected as not credible. Mr Karp asserts that this rejection was based upon the findings that the applicant was confused as to his sexuality and that he had not thought about the need to reconcile his asserted homosexuality with his Catholic faith. In her submissions, Ms Allars asserts four bases for the credibility conclusion. In my view, there were in fact three. These were the belated nature of the claim, the finding that the applicant was still confused at the hearing about his sexuality (confirming what the applicant had previously said in his statutory declaration) and the applicant’s failure to explain how his asserted sexuality was consistent with his being a practising Roman Catholic, which had been accepted. Paragraph 115 of the RRT’s reasons is not particularly well expressed but, read as a whole and read beneficially, in my view the paragraph reasonably clearly discloses those three elements in the presiding member’s reasoning.
I reject Mr Karp’s submission that once the RRT found that the applicant was confused as to his sexuality it became an integer of the applicant’s case. If the confusion of the applicant as to his homosexuality was an integer of his case it was so not because the RRT had found it but because the applicant had asserted it in his statutory declaration. I accept that the issue of confusion as to his sexuality was part of the applicant’s claims that needed to be considered by the RRT. At the hearing, the presiding member asked questions which he apparently intended would draw out the applicant as to whether he was still confused. The presiding member decided that the applicant was still confused. This may have been wrong, but the RRT plainly considered the applicant’s claim, including his claim as to being confused. In effect, the claim was accepted.
The problem with this part of the RRT’s reasoning is not that the RRT failed to consider an element or integer of the applicant’s claim but, rather, the RRT asked itself the wrong question. The RRT was assessing the credibility of the applicant’s claim about his homosexuality. It would have been a perfectly legitimate course of enquiry for the RRT to consider and make a finding on the internal consistency and clarity of the applicant’s evidence in respect of this claim. In assessing the credibility of the claim, the question that the RRT should have asked itself was whether the answers given to the presiding member’s questions on his sexuality were confused. However, the question posed and answered by the presiding member was whether the applicant was still confused about his sexual identity, having asserted confusion in his written statement. Whether one is confused about one’s sexuality says nothing about one’s truthfulness. If, however, the evidence that one gives about one’s sexuality is confused, that may well have a bearing on an assessment of truthfulness.
The other basis on which the RRT rejected the claim of homosexuality was the failure by the applicant to consider his position in the Catholic Church. This appears to have been based on a personal assessment by the presiding member of what could have been expected of a practising Roman Catholic. The applicant himself presented nothing on that issue; he simply had not considered the issue. There is no indication that the presiding member made any enquiry through an assessment of independent information. It was simply a subjective assessment made personally by the presiding member. The rationality of the presiding member’s reasoning is dubious. It assumes that a practising Catholic (that is I assume a Catholic who attends church) would necessarily give consideration to doctrinal issues concerning homosexuality. I do not see that that necessarily follows, especially in the case of this applicant who appeared somewhat uncertain about his religious adherence: in his original protection visa application he claimed to be a member of the Orthodox Church and at the RRT hearing it took some time for the presiding member to determine whether the applicant was a Roman Catholic or an Eastern Rite Graeco Catholic.
It is apparent from a fair reading of paragraph 115 of the RRT reasons that the fact that the applicant had made his claim of being homosexual only about two weeks before the RRT hearing was a cause of concern to the presiding member but that, of itself, would not have led the presiding member to conclude that the claim of homosexuality was a fabrication. The additional factors were the confusion on the part of the applicant about his sexual identity and his failure to consider the need to reconcile his homosexuality with his Catholic faith. The latter reason appears to me to be illogical, but illogicality does not invalidate a decision: Minister for Immigration; ex parte Applicant S20 of 2002 (2002) 198 ALR 59. However, it may be a jurisdictional error to expect an applicant to behave in a particular way: Appellant S395 of 2002 v Minister for Immigration [2003] HCA 71. In that case the RRT erred by expecting a homosexual applicant to live discretely in order to avoid persecution. In this case, in my view, the RRT erred by expecting the applicant, if he were truthful, to behave like a “good” Catholic. This was an erroneous approach to the consideration of credibility that amounts to a constructive failure to exercise jurisdiction. The lateness of the claim of homosexuality was insufficient to support the adverse credibility finding alone. The resort to speculation of what a practising Catholic would do was illogical and erroneous. The failure of the RRT to ask itself the right question in respect of the remaining issue (the confusion on the part of the applicant about his sexuality) renders the credibility finding unsupported and unsupportable. This, in my view, is sufficient to establish jurisdictional error.
In addition, I find that there was a constructive failure on the part of the RRT to consider the applicant’s claim of persecution based on his Russian ethnicity. It was an element or integer of the applicant’s claim that he would suffer harm because of where he lived – in Lviv. The RRT found that the applicant’s fear was not well founded in part because the applicant lived in eastern Ukraine where there was a substantial minority of ethnic Russians. This factual finding was erroneous. The applicant lived in western Ukraine, near the Polish border. The applicant had claimed a particular risk of ethnic persecution in Western Ukraine. The country information available to the RRT indicated that Russians were less numerous in western Ukraine than in southern and eastern Ukraine. The country information also indicated that ethnic minorities faced some particular difficulties in the western regions of Ukraine. The presiding member erroneously placed the applicant on the opposite side of the country in a markedly different ethnic mix of the population. I accept that the RRT found that Russians in Ukraine are not generally a persecuted minority. I also accept that the RRT found that the applicant could avail himself of effective State protection. However, these findings cannot be divorced from the finding that the applicant lived in eastern Ukraine where Russians formed a sizeable minority. The RRT failed to consider the integer of the applicant’s claim that he faced particular difficulties in Lviv in western Ukraine. This failure also invalidates the RRT decision: SCAT v Minister for Immigration [2003] FCAFC 80 at [29].
I will grant the writs of certiorari and mandamus sought by the applicant. I will also grant declaratory relief, noting that an issue has been raised in Federal Court proceedings concerning this Court’s power to issue constitutional writs. I will also order that the respondent pay the applicant’s costs of the application. I accept the parties’ assessment of their costs and disbursements on a party/party basis at $6,500. However, I will reduce the costs award by 50 per cent, noting that the applicant has succeeded substantially not on the basis of grounds which he advanced but, rather, on the basis of grounds identified by the Court. I also take into account that the application for review was amended twice, once in the week preceding the hearing and once at the end of the hearing. Some additional work was required of both parties by reason of those amendments and unnecessary expense was incurred by the Minister.
I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 March 2004
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