SZGIK v Minister for Immigration
[2007] FMCA 575
•27 March 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZGIK v MINISTER FOR IMMIGRATION & ANOR | [2007] FMCA 575 |
| MIGRATION – Protection available under Bulgarian law against discrimination for sexual orientation. |
| Migration Act 1958, ss.424A, 427(6)(a), 474 |
| Applicant: | SZGIK |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 3252 of 2006 |
| Judgment of: | Turner FM |
| Hearing date: | 27 March 2007 |
| Date of last submission: | 27 March 2007 |
| Delivered at: | Sydney |
| Delivered on: | 27 March 2007 |
REPRESENTATION
| The applicant appeared in person |
| Counsel for the Respondents: | Mr J. Smith |
| Solicitor for the Respondents: | Ms S. Zarucki of Clayton Utz |
ORDERS
The application is dismissed.
The name of the first respondent is amended to the Minister for Immigration and Citizenship.
The applicant is to pay the costs of the first respondent fixed in the amount of $4,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3252 of 2006
| SZGIK |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application filed on 8 November 2006 for an order to show cause why a remedy should not be granted in respect to a decision of the Refugee Review Tribunal (“the Tribunal”) dated 29 September 2006 and handed down on 19 October 2006 which affirmed the decision of the delegate for the Minister for Immigration and Multicultural Affairs not to grant the applicant a protection visa. The applicant has not filed an amended application.
The applicant was born on 8 December 1970 and claims to be from Bulgaria and of Orthodox faith (“the Applicant”).
The applicant is married with one child.
The applicant arrived in Australia on 3 October 2004 on a visitor’s visa.
The applicant lodged an application for a protection visa with the Department of Immigration and Multicultural Affairs on 16 November 2004. In this application he claimed that if he returned to Bulgaria he would be persecuted because he is a homosexual. The applicant claimed that in Bulgaria he was beaten by both ordinary people and the police, and that as a result of the harassment and persecution, he could not sustain his business. Although the applicant married and had a son, this did not help (Court Book “CB” 24-25).
This application was refused by a delegate of the first respondent on
22 December 2004.
On 27 January 2005 the applicant filed an application for review of the decision of the Minister’s delegate with the Refugee Review Tribunal. The applicant gave oral evidence before the Tribunal on 16 March 2005, at which time he maintained the claims made in his original protection visa application.
On 19 April 2005 the Tribunal (“T1”) handed down its first decision,
affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa (CB 54). The applicant applied for judicial review by the Federal Magistrates Court and on 10 April 2006 Federal Magistrate Raphael made orders by consent that the decision of the Tribunal be quashed and the matter be remitted to the Tribunal for determination according to law (CB 56).
The applicant appeared before the Tribunal on 24 July 2006 (CB 166) to present oral arguments and evidence. At the hearing the applicant maintained the claims made in his original protection visa application.
On 19 October 2006 the Tribunal (“T2”) handed down its second decision, dated 29 September 2006 affirming the decision of the Minister’s delegate refusing to grant the applicant a protection visa. In considering the applicant’s claims, the Tribunal found (CB 172-5) (emphasis added):
The applicant claims and I accept he is a national of Bulgaria, and accordingly, for the purposes of the Convention, his claims have been assessed against Bulgaria as his country of nationality.
Applicant D states that he is a married man with one child. I accept that homosexuals can also be married to persons of the opposite sex. Applicants D and V claim, and I accept, they were partners together in Bulgaria and claim to fear harm for their homosexuality in Bulgaria. They both agreed to a joint hearing before both T1 and T2. They both claim they were harmed on 2 occasions in 2004. They fled Bulgaria together and fear returning to Bulgaria as they will not be protected from harm for reasons of their homosexuality.
The applicants were both born prior to 1968. Homosexuality has been legal in Bulgaria since 1968. Whilst there is no legal recognition of same sex couples and in 1999 several dozen Bulgarian gays published a petition demanding the right to marry their partners, the Bulgarian Supreme Court has ruled unanimously to allow a gay man to inherit half the estate of his deceased long-time partner.
I accept that homosexuals are a particular social group in Bulgaria but I do not accept that V and D suffered Convention related harm in Bulgaria for their homosexuality.
Firstly, the applicants told the Tribunal that they fled Bulgaria because they were assaulted especially in May 2004 when they were attacked. D has been in possession of a valid passport since 22 December 2003. V has been in possession of a valid passport since 23 June 2000. Both D and V were aware that Bulgaria’s citizens in 2004 were able to travel to Schengen countries without a visa. Despite having passports and despite having the ability to travel to Schengen countries such as Austria, Belgium, Denmark, Finland, France, Germany, Iceland, Italy, Greece, Luxembourg, Netherlands, Norway, Portugal, Spain and Sweden ( and despite having an Australian visa since August 2004 the applicants did not depart Bulgaria until October 2004. When put to them at hearing that they could have left Bulgaria for any of the Schengen countries they stated that leaving Bulgaria is a serious problem and it is necessary to organise things, especially financial matters. Their response to T2’s s.424A letter was to state that they did not leave Bulgaria because they had to organise finance and book tickets. I reject their explanation. It does not ring true. I am of the view that had the applicants feared harm in Bulgaria they would have left Bulgaria for anyone of the Schengen countries where they were able to travel without a visa. It indicates a lack of a subjective fear of persecution.
Secondly, when asked to provide the description of their attackers as given to the Bulgarian police, neither V nor D were able to describe their assailants other than to state they were “young people”, they were people they had seen. They claim that they knew their faces “because from time to time we had met them and remembered their faces”. I accept that Veliko Trnovo is a small town (population 73 500 in 2005 about the size of Coffs Harbour that has a population nearing 70 000 When pressed by T2 to describe their assailants neither V nor D were able to describe their attackers other than referring to them as ‘normal people’. I do not accept as plausible that 2 people who claim to have been attacked to such a degree that one of them was hospitalised and had to have 10 days off work are unable to provide to the police or to the Tribunal any description of the persons who attacked them.
D has provided a translation of a medical certificate indicating he suffered chronic post traumatic headache. Even accepting this translation without citing the original, it does not suggest D suffered any ongoing medical problems. The evidence does not suggest that either D or V have suffered memory loss.
Thirdly, the applicants claim to have suffered two serious assaults in 2004. When T2 asked the applicants what they expected the Bulgarian police to do for them in view of the circumstances, V responded that ‘he wanted the police to help them’. The evidence is that the police arrived at the scene of the crime and took statements. But in view of the applicants inability to describe their attackers other than value terms such as ‘young people’ or ‘normal people that they had seen around’ these descriptions do not suggest that the police were ineffective or had refused protection to the applicants. I am of the view that victims of crime who are not able to describe their attackers other than as persons they had seen before or young people, cannot claim that the police did not protect them. Neither D nor V reported the “refusal” by the police to act in relation to their assault in Bulgaria. When put to D and V by s.424A letter the applicants responded that they “had no faith”. I am satisfied that the police did everything they could be expected to do in the circumstances. Neither D nor V complained to the police or to the Anti-Discrimination Commission or to the Ombudsman.
The applicants claim that according to a 2001 report by the Bulgarian Helsinki Committee, Bulgarian police refuse to register complaints by homosexuals and will not act against gay violence. According to the Bulgarian Helsinki report 2005 some of the main criticisms leveled at Bulgaria by the European Commission and by the representatives of a number of EU member countries had to do with the effectiveness of the country's judicial system. Further, the Sofia District Court found that university officials had unlawfully refused homosexual men access to the university's sauna, explicitly indicating the victims' sexual orientation as the reason for the refusal. The Canadian IRB report stated that although police have been held accountable for exceeding their powers and for the disproportionate use of force (10 Apr. 2002) and a number of organizations reported that Bulgarian police officer have victimized vulnerable groups including the homosexual community (COE 10 Apr. 2002, 4; BHC Oct. 2001; BGO Gemini 2003; ILGA-Europe Mar. 2001, 11 the Canadian IRB was unable to find statistics indicating the prevalence of police abuses since 2001 among the sources consulted.
I am satisfied on the information before me that the applicants D and V did not flee Bulgaria fearing Convention related harm.
I am required to consider the situation if D and V return to Bulgaria now or in the foreseeable future. I accept that homosexuals are a particular social group in Bulgaria.
Independent evidence (cited above) indicates that Bulgaria is a parliamentary democracy with a functioning legal system where citizens and residents are able to express both their political and religious views.
The evidence before me indicates that persons who are arrested or charged for an offence are able to appear before an independent judiciary. Whilst there is criticism of that judiciary the independent evidence does not suggest it is ineffectual or that minorities such as homosexuals suffer discrimination or harm in the legal system for a Convention related reason. There are a number of human rights organisations in Bulgaria, including Amnesty International and Human Rights Watch who report on human rights issues. (see: US State Department Report 2004).
The independent evidence cited above indicates that Bulgarian law provides protection against discrimination on the grounds of sexual orientation in the fields of employment, health care, and education, recruitment to the military, housing, accommodation, and a range of services available to the public. The law provides protection against harassment and victimization. It also explicitly defines the term sexual orientation as heterosexual, bisexual, homosexual orientation.
Desislova Petrova of Gemini Bulgarian Gay Organisation suggests that homosexuals are discriminated against in housing and employment but the applicants do not claim that they have been or would be discriminated in this way or that they suffered harm for their homosexuality in employment or housing in Bulgaria. The evidence is that both applicants were employed until they left Bulgaria.
I accept that there is societal discrimination of homosexuals in Bulgarian society and that discriminatory practices remain at different levels of society. The independent evidence (cited above) indicates that there was not one case of discrimination based on sexual orientation reported to the Police or the Supreme Court. In April 2005, Parliament approved Bulgaria’s first national Ombudsman. I accept that whilst the 1st gay parade in Bulgaria has been cancelled because of church pressure the gay community was able to hold a festival in 2005. According to Sofia News Agency in November 2004 Bulgaria’s First Gay Politician came out.
Since independence, in Bulgaria there has been an emergence of homosexual advocacy groups, homosexual social and cultural groups and homosexual venues and events.
The evidence before me does not suggest that the Bulgarian state does not have the ability or is unwilling to protect its gay residents and citizens from Convention related harm.
In relation to police treatment of homosexuals, there is no evidence before me to support the view that homosexuals are unable to access police protection. There is an Ombudsman who investigates complaints. The Ombudsman’s reports are available to international agencies.
The independent information (US State Department Report 2004) indicates that corruption pervades the police and judiciary. The independent information does not suggest that crime or corruption is targeted at any specific sector of Bulgarian society for a Convention related reason.
The independent evidence indicates that a wide variety of domestic and international human rights groups operate without government restriction, investigating and publishing their findings on human rights cases. Non-governmental organisations and human rights monitors such as US State Department Reports 2006, Amnesty International 2004, Human Rights Watch 2002 and International Helsinki Federation 2006 do not indicate homosexuals are harassed or persecuted in Bulgaria or that they are required to live discreetly in order to live as homosexuals. Amnesty International 2004 Bulgaria does not indicate homosexuals suffer Convention related harm or that police do not protect homosexuals in Bulgaria. If homosexuals suffered Convention related harm in Bulgaria I would expect to find some reference in these independent reports.
I have considered whether or not D and V need to live discreetly in Bulgaria as practising homosexuals. The independent evidence does not suggest that D and V are unable to live openly as homosexuals in Bulgaria.
I do not accept there is a real chance the applicant will suffer harm now or in the foreseeable future if he were to return to Bulgaria and I am not satisfied the applicant has a well-founded fear of persecution for a Convention related reason.
The Tribunal affirms the decision not to grant the applicant a Protection (Class XA) visa.
The applicant then filed the application in this Court, seeking judicial review of the Tribunal’s decision pursuant to Migration Act 1958 (Cth).
Claims made before the Court
The applicant submitted to the Court that he did not have the opportunity to put further material to the Tribunal. The applicant wished to present that further factual material to the Court at the hearing, however, it is not open to this Court to receive further factual information that was not presented to the Tribunal; it is the function of this Court to determine whether the Tribunal made errors of law or reviewable errors of fact. The Tribunal had to decide the matter on the basis of the material before it.
The applicant stated to the Court that he wished to obtain further information to put before the Tribunal. There is no evidence to suggest that the applicant requested (and was refused) an adjournment by the Tribunal. The applicant was aware that there is a procedure available to request an adjournment; indeed, the applicant had done so in proceedings before the first Tribunal. The form where that request is set out is at Court Book 47.
Is it up to the applicant to establish his case before the Tribunal. A failure by the applicant’s solicitor to follow instructions does not constitute an error of law by the Tribunal, nor does it prevent the Tribunal from making a determination on the case. There is nothing to show that the applicant complained to the Tribunal during the hearing that his instructions were not being followed. The applicant was able to put a case to the Tribunal as recorded throughout the decision of the Tribunal.
A s.424A letter was sent to the applicant on 16 May 2006 (CB 59). A detailed response was sent by his solicitor to the Tribunal on 6 June 2006 (CB 123-7). Written submissions were also put by the applicant’s solicitor to the Tribunal (CB 131-2).
The applicant has complained that his interpreter was asked to leave the hearing by the Tribunal. The Court is not able to ascertain exactly who was asked to leave the hearing, though there is some suggestion that it was an interpreter or an adviser. Under s.427(6)(a) of the Migration Act, an applicant is not entitled to representation at a Tribunal hearing, therefore if the person excluded from the hearing was an advisor of the applicant, no breach of the Act occurred.
The Court is also satisfied that the applicant was assisted by an interpreter throughout the Tribunal hearing. The interpreter present before the Court was present to assist the applicant during the whole hearing before the Tribunal. The form appearing at Court Book 136 confirms this was so.
The application
In his application, the applicant set out two grounds as follows:
1) The RRT wrongly applied test of “Convention reason”.
2) The RRT wrongly applied tests “Available State protection” and “Persecution feared”.
Grounds of the application
Ground 1 asserts that the RRT wrongly applied the test of “Convention reason”. Nothing has been put to establish this contention and it is rejected.
Ground 2 asserts that the Tribunal wrongly applied the tests of “available state protection” and “persecution feared”. The Tribunal found that there was nothing to indicate that the police were ineffective or had refused protection to the applicant (CB 173.7). The Tribunal found that independent evidence indicates that Bulgarian law provides protection against discrimination on the grounds of sexual orientation in various fields, and that
The law provides protection against harassment and victimisation. It also explicitly defines the term sexual orientation as heterosexual, bi-sexual, homosexual orientation. (CB 174.6)
At CB 175.2 the Tribunal found:
The evidence before me does not suggest that the Bulgarian state does not have the ability or is unwilling to protect its gay residents and citizens from Convention related harm.
Those findings were properly open to the Tribunal. The Court rejects the contention of misapplication of the test of “available State protection”.
There is nothing put to establish that the Tribunal erred in applying the test of fear of persecution or “persecution feared”. Having found that state protection is available and that the applicant will be able to live openly as a homosexual in Bulgaria (CB 175.9) it was open to the Tribunal to conclude that the applicant did not have a well-founded fear of persecution. This ground is rejected.
Conclusion
The respondents have shown cause why orders the relief sought should not be granted.
The Court finds that the Tribunal’s decision is a privative clause decision that has not been infected with jurisdictional error. In such circumstances, and pursuant to s.474 of the Migration Act, there is no jurisdiction for this Court to interfere.
Accordingly, the application is dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Turner FM
Associate: Sarah James
Date: 17 April 2007
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