SZIIF v Minister for Immigration

[2009] FMCA 370

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZIIF v MINISTER FOR IMMIGRATION & ANOR [2009] FMCA 370

MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether s.91R(3) of the Migration Act 1958 (Cth) is engaged where the Refugee Review Tribunal elicits evidence from the applicant about conduct by inaction in Australia but the applicant makes no claims of conduct in Australia in support of his refugee claims – whether the Refugee Review Tribunal considered all relevant circumstances of the applicant in considering whether it was reasonable for the applicant to relocate within India.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91R(3); 91S; 474; pt.8 div.2

SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105
SZKBK v Minister for Immigration and Citizenship [2008] FCAFC 105
SZJXO v Minister for Immigration and Citizenship [2008] FCAFC 105
SZHFE v Minister for Immigration and Indigenous Affairs (No 2) [2006] FCA 648
SZIMY v Minister for Immigration and Citizenship [2007] FCA 249
SZHTC v Minister for Immigration and Citizenship [2007] FCA 1199
SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722
SZMJD v Minister for Immigration and Citizenship [2008] FMCA 1297
SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216
NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37
Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265
SZATV v Minister for Immigration and Citizenship [2007] HCA 40
Januzi v Secretary of State for the Home Department [2006] 2 AC 426
Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 487
Abebe v The Commonwealth (1999) 197 CLR 510 at 576
SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225

Applicant: SZIIF

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: REFUGEE REVIEW TRIBUNAL

File number: SYG 3084 of 2008

Judgment of: Emmett FM

Hearing date: 31 March 2009

Date of last submission: 31 March 2009

Delivered at: Sydney

Delivered on: 29 April 2009

REPRESENTATION

Counsel for the Applicant: Mr J. Young

Solicitors for the Applicant: Ms N. Chyra, Simon Diab and Associates

Counsel for the Respondent: Ms K. Stern

Solicitors for the Respondent: Ms K. Dunn, Clayton Utz

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3084 of 2008

SZIIF

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and Part 8 Division 2 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of a decision of the Refugee Review Tribunal dated 28 October 2008 and handed down the same day.

2. The applicant claims to be a citizen of the Ukraine and of homosexual orientation (“the Applicant”).

3. The Applicant arrived in Australia on 26 October 2001 having departed legally from Borispol airport on a passport issued in his own name and a subclass 456 temporary business visa issued on 12 October 2001.

4. On 3 December 2001, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.

5. On 14 October 2002, a delegate of the First Respondent (“the Delegate”) refused the Applicant’s application for a protection visa. 

6. On 11 November 2002, the Applicant lodged an application for review of the Delegate’s decision by the Refugee Review Tribunal. 

7. On 13 December 2005, the Refugee Review Tribunal (“the First Tribunal”) affirmed the decision of the Delegate not to grant a protection visa. 

8. The Applicant sought judicial review of that decision and, on 5 May 2006, by consent, Federal Magistrate Emmett remitted the matter to the Refugee Review Tribunal for determination according to law.

9. On 19 October 2006, the Refugee Review Tribunal, differently constituted, (“the Second Tribunal”) affirmed the decision of the Delegate not to grant a protection visa.

10. On 19 June 2008, the Federal Court of Australia remitted the matter to the Refugee Review Tribunal for determination according to law.

11. On 28 October 2008, the Refugee Review Tribunal, again differently constituted, (“the Tribunal”) affirmed the decision of the Delegate not to grant a protection visa. This is the decision currently under review.

12. On 25 November 2008, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision. 

Legislative framework

1. Section 65(1) of the Act authorises the decision-maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application is to be refused.

2. Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees (“the Convention”). 

3. Australia has protection obligations to a refugee on Australian territory.

4. Article 1A(2) of the Convention relevantly defines a refugee as a person who:

   “owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”

5. Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Applicant’s application for a protection visa

1. The Applicant provided a statement in support of his protection visa application in which he stated that he feared persecution in the Ukraine from employers, hate groups and the general public by reason of his homosexuality.

The Delegate’s decision

1. On 14 October 2002, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant is not a person to whom Australia has protection obligations under the Convention.

The Tribunal’s review and decision

1. On 18 July 2008, the Tribunal wrote to the Applicant informing him that his application had been remitted for reconsideration by the Refugee Review Tribunal and inviting the Applicant to provide any documents or written arguments he wished the Tribunal to consider.

2. On 24 July 2008, the Tribunal wrote to the Applicant informing him that the Tribunal had considered the material before it but was unable to make a favourable decision on that material alone. The letter invited the Applicant to attend a hearing on 25 August 2008 to give oral evidence and present arguments. The Applicant attended that hearing and gave evidence.

3. The Applicant provided further documents to the Tribunal in support of his review application together with his response to hearing invitation indicating that he wished to attend the hearing. The Applicant also sent to the Tribunal post-hearing one further document received on 2 September 2008.

4. On 25 August 2008, the Applicant gave evidence at the hearing before the Tribunal at which the Tribunal explored the Applicant’s claims with him further and put to the Applicant matters of concern it had arising out of his evidence.

5. The Tribunal noted that it had before it the Department’s file, the files of the First and Second Tribunals, hearing tapes from the First and Second Tribunals and hearing tapes from the hearing before the Tribunal on 25 August 2008. 

6. The Tribunal found the Applicant was not a witness of truth.

7. The decision of the Tribunal is accurately summarised by counsel for the First Respondent, Ms Stern, in her written submissions as follows:

   “The Tribunal Decision

   6. The Tribunal affirmed the decision not to grant the applicant a protection visa on the following bases:

   a) The Tribunal did not consider that the applicant was a credible witness and rejected the factual basis of the applicant’s claim ([128-138]: pp 261-164). The Tribunal did not accept on the evidence before it that the applicant was homosexual, that he was a gay activist or a member of a gay organisation in Ukraine or that he was persecuted for reasons of his sexual orientation or his membership of a gay organization in Ukraine. The Tribunal accordingly did not accept that there was a real chance that the applicant would be persecuted on account of his sexual orientation if he were to return to Ukraine ([139]: p.264).

   b) Even if the Tribunal had found that he was a homosexual and a gay activist in Ukraine it would not accept that there was a real chance that he would be persecuted if he were to return to Ukraine ([140]: p.264). Applying the test set out by the High Court in SZATV v. Minister for Immigration and Citizenship [2007] HCA 40 at [23]-[25] it would be reasonable for the applicant to relocate to Kiev and he would not face a real chance of being persecuted in Kiev ([144]: pp.265-266).

   c) In any event, the Tribunal did not accept that on the evidence before it there was a failure of the Ukrainian State to meet the standards of protection of homosexuals as required by international standards, applying the test set out by the High Court in Respondent S152/2003 (2004) 205 ALR 487 at [26] ([122] & [141]: pp.260 & 264-5).”

The proceeding before this Court

1. The Applicant was represented before this Court by Mr Young, of counsel.

2. The First Respondent was represented by Ms Stern, of counsel.

3. Counsel for the Applicant confirmed that the Applicant relied on the grounds contained in the application filed on 25 November 2008.

4. The grounds of the application are expressed to be as follows:

   “1. The Second Respondent made jurisdictional error by acting in breach of Section 91R(3) of Migration Act 1958 by having regard to conduct of the applicant in Australia without having decided that such conduct was engaged in for purposes other than strengthening the applicant’s claims to be a refugee.

   2. The Second Respondent made jurisdictional error by finding that it would be reasonable for the applicant to relocate to Kiev without having determined that it would be practicable for him to do so.”

Ground 1 – Section 91R(3)

1. Counsel for the Applicant submitted that the Tribunal had regard to the inaction of the Applicant in joining any gay activist organisations in Australia in making adverse credibility findings in respect of the Applicant’s claims of being a homosexual in the Ukraine. Counsel for the Applicant submitted that s.91R(3) of the Act required the Tribunal to disregard such inaction and that its failure to do so resulted in a breach of s.91R(3) by the Tribunal. Counsel for the Applicant submitted that inaction in Australia was capable of being conduct in Australia caught by s.91R(3).

2. In support of that submission, counsel for the Applicant referred the Court to SZJGV v Minister for Immigration and Citizenship [2008] FCAFC 105 (“SZJGV”), in which the Full Court also considered SZKBK v Minister for Immigration and Citizenship [2008] FCAFC 105 (“SZKBK”) and SZJXO v Minister for Immigration and Citizenship [2008] FCAFC 105 (“SZJXO”). In SZKBK the applicant claimed to be a member of a Seventh Day Adventist church in China and attended a Christian church in Sydney. The tribunal in that case found that the applicant’s failure to attend church regularly in Australia and to have failed to have located a Seventh Day Adventist church in Australia formed part of its reason for its adverse credibility findings in respect of the applicant’s claims. Counsel for the Applicant submitted that in the circumstances the Full Court in SZKBK had regard to inaction by that applicant in failing to attend a Seventh Day Adventist church in Australia as conduct that enlivened s.91R(3) of the Act. Counsel for the Applicant referred to the following passages in SZJGV:

   “Once engaged, s 91R(3) precludes the decision-maker from having regard to “any conduct” engaged in by the applicant in Australia unless the decision-maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s 91R(3).” [at 22]

   “Decision-makers are, subject to the proviso in para (b), required to disregard “any” conduct in Australia by the applicant. The conduct is to be disregarded in determining “whether” an applicant has a well-founded fear of persecution for a convention reason. The conduct may suggest that such a fear is or is not well-founded. In either case it must be disregarded. If the tribunal brings the conduct into account it will contravene s 91R(3).” [at 24]

3. Counsel for the First Respondent submitted that SZJGV was not relevant to the case before this Court because the Full Court of the Federal Court of Australia made clear that, in each of the cases being considered by the Full Court in SZJGV, SZKBK and SZJXO, the tribunals had received evidence from the applicants about conduct in Australia in support of their refugee claims. That evidence had then been considered by the tribunals in making adverse credibility findings in respect of the applicants.

4. Counsel for the First Respondent submitted that s.91R(3) was not engaged in the case before this Court because the inaction by the Applicant in joining any activist groups in Australia was not conduct or information relied upon by the Applicant in support of his claims. Counsel for the First Respondent submitted that the information about the Applicant’s failure to join any gay activist organisations was information elicited by the Tribunal (and by an earlier Refugee Review Tribunal) in an attempt to explore whether or not there was evidence or material to support the Applicant’s claim of homosexuality.

5. In relation to that information, the Tribunal stated as follows:

   “I noted that at the moment I did not have any evidence before me other than the applicant’s own evidence to support his claim that he was homosexual. The applicant said that he lived by himself and that he did not have a boyfriend now. He said that if he had wanted to prove this it would have been easy for him to have gone to Oxford Street and to have paid money to someone to come to the hearing as a witness. He said that he had taken an oath on the Bible to tell the truth. I noted that the applicant had been in Australia for almost seven years at the date of the hearing before me. I noted that at the hearing before the second Tribunal he had said that the reason he had not made any contacts in the gay community in Australia was that he had been concentrating on his work, his church and his studies. The applicant said that at that time he had been really busy.

   I noted that, when the second Tribunal had been exploring with the applicant all the various ways in which he could provide some sort of evidence that he was in fact gay, the applicant had said that it was difficult because of the language barrier…”

6. Counsel for the First Respondent submitted that this Court is bound by the principle espoused in SZHFE v Minister for Immigration and Indigenous Affairs (No 2) [2006] FCA 648 (“SZHFE”) by Jacobson J where his Honour found that s.91R(3) is only enlivened when an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution. In SZHFE the applicant had failed to take any steps in a period of seven years prior to his application for a protection visa to have articulated any fear of persecution in his home country or made enquiries about seeking to obtain refugee protection. In that case, the tribunal had regard to the applicant’s inaction as evidence that the applicant did not have a well-founded fear of persecution.

7. Moreover, the Full Court of the Federal Court in SZJGV considered SZHFE. In particular, the Full Court in SZJGV found that the question as to whether or not s.91R(3) was enlivened only when an applicant sought to rely on his or her conduct in Australia to support his or her claim to be a refugee did not arise on those appeals and therefore did not need to be resolved.

8. In the circumstances, Counsel for the First Respondent submitted that this Court is bound by the decision of Jacobson J in SZHFE where he stated at [30] that:

   “The effect of the submission is that s 91R(3) is only enlivened where an applicant seeks to rely on conduct in Australia to support a claim to have a well-founded fear of persecution (emphasis added). In my opinion this is plainly the effect of s 91R(3) and the subsection is not enlivened in the present case.”

9. SZHFE was the subject of a special leave application to the High Court of Australia by the applicant for a protection visa. Kirby and Callinan JJ stated that they agreed with the analysis of Jacobson J. The analysis to which the High Court was referring was as referred to above as it was clearly the ratio upon which SZHFE was decided.

10. I accept the summary provided by Counsel for the First Respondent in her written submissions of decisions of the Federal Court of Australia where SZHFE has been considered and followed:

    “SZHFE has been considered by the Federal Court in SZIMY v. Minister for Immigration and Citizenship [2007] FCA 249 at [11] (Tribunal’s reliance upon negligible interest in Falun Gong since arriving in Australia did not engage section 91R(3)), SZHTC v. Minister for Immigration and Citizenship [2007] FCA 1199 at [25] (Tribunal’s reliance on applicant’s failure to resume his alleged practise of Falun Gong in Australia did not engage section 91R(3)), and SZGDJ v Minister for Immigration and Citizenship [2008] FCA 722 at [17]-[22] (Tribunal’s reliance upon applicant’s lack of involvement with activities of the Awami League in Australia in reaching credibility findings did not engage section 91R(3)). It was also recently followed by Barnes FM in SZMJD v. Minister for Immigration and Citizenship [2008] FMCA 1297.”

11. In relation to SZIMY v Minister for Immigration and Citizenship [2007] FCA 249 (“SZIMY”) above, Conti J referred to and followed SZHFE in finding that s.91R(3) had no relevant operation where the applicant had not relied on conduct in Australia to strengthen his protection visa claim “but was a case instead concerned with the situation where the tribunal reached conclusions from the available material about a lack of activity in Australia.” Conti J found that the appellant’s conduct in Australia involving her failure to communicate with other Falun Gong practitioners or join public practice sessions in Australia was “plainly not conduct engaged in to support her claims, and hence s 91R(3) had no relevant operation.”

12. SZIMY was also the subject of a special leave application to the High Court of Australia before Kirby and Hayden JJ. Special leave was refused on the basis that, inter alia, the complaint of a breach of s.91R did not have “any reasonable prospect of successful challenge in this court.”

13. In the circumstances, I am satisfied that the law, as it presently stands, is that s.91R(3) of the Act is not enlivened where an applicant has made no claims of conduct in Australia in support of his refugee claims. Such are the facts in the case before this Court. A fair reading of the Tribunal’s decision does not suggest that any evidence was given by the Applicant of any conduct in Australia in support of his refugee claims. Counsel for the Applicant sought to make the submission that it was difficult to untangle from the Tribunal’s decision record evidence that had been given by the Applicant in support of his refugee claims and evidence that was elicited by the Tribunal.

1. However, a fair reading of the Tribunal’s decision record does not suggest that it was part of the Applicant’s claims that he had tried to become involved in homosexual and gay activist organisations in Australia and had failed. A fair reading of the Tribunal’s decision record makes plain that such evidence was elicited from the Applicant by questions from the Tribunal. A fair reading of the Tribunal’s decision record makes clear that the Tribunal put to the Applicant that nothing in his behaviour since he had been in Australia suggested any involvement in gay activism at all. The Tribunal noted the Applicant’s responses. In addition, the Tribunal stated the following:

   “As I was at pains to stress to the applicant in the course of the hearing before me, I am not using some sort of template to impose particular expectations on him with regard to how he should behave. I accept that a lot of gay people are not in relationships, that the gay community is much more than Mardi Gras and Oxford Street and that there are obviously gay people who prefer a quiet life and who are not involved in any organisations. However the basis for the applicant’s claims is that he was a gay activist in Ukraine who was involved in an organisation which tried to help gay people. I do not consider it unreasonable, therefore, to expect that the applicant would have wanted to become involved in similar organisations in this country or that he would have wanted to seek out friends in the gay community in Australia as he claims to have done in Ukraine.

   ...I consider that the applicant’s evidence that he did not see the need for any organisation to campaign for gay rights in Australia and that he was not aware of any incidents of violence against homosexuals in Australia casts doubt on his claim that he was a gay activist in Ukraine who was involved in an organisation which tried to help gay people and that he was persecuted for that reason. Once again I consider that this is also relevant to the applicant’s overall credibility.

   For the reasons given above, I do not consider that the applicant is a credible witness. I consider that he has demonstrated that he is prepared to lie if he believes that it will assist his case despite having taken an oath on the Bible. I do not accept on the evidence before me that the applicant is homosexual, as he claims, that he was a gay activist or a member of a gay organisation in Ukraine or that he was persecuted for reasons of his sexual orientation or his membership of that gay organisation in Ukraine.”

2. There was no transcript of the Tribunal hearing provided to this Court, nor did the Applicant provide any evidence to this Court to suggest that the Tribunal’s decision record is not accurate. At the directions hearing on 4 February 2009 the Applicant was given an opportunity to file a transcript of the Tribunal hearing. The Applicant was directed to ensure than any such transcript was verified by affidavit. The Applicant was also directed to give notice if he wished to rely on tapes at the hearing, however, no step was taken by the Applicant to file or tender any such evidence. In the circumstances, the Court accepts as accurate the Tribunal’s summary of the oral evidence given by the Applicant and exchanges it had with the Applicant at the Tribunal hearing.

3. Accordingly, there was no enlivenment of s.91R(3) and Ground 1 is not made out.

Ground 2 – Relocation

1. At the heart of the submission by counsel for the Applicant in support of Ground 2, was that the Tribunal had failed to consider the practicalities faced by the Applicant in considering whether or not it was reasonable for the Applicant to relocate to Kiev if he were to return to Ukraine.

2. In support of his submission, counsel for the Applicant referred the Court to SZBJI v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 216 where Allsop J, in applying NAIZ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 37 (“NAIZ”), held that a tribunal was obliged to consider the “practical realities” in respect of an applicant in considering whether it would be reasonable for the applicant to relocate. In NAIZ, the applicant was a 55 year old unemployed widow in Fiji who claimed that she needed to be “looked after”. The Full Court found that the tribunal had failed to consider that specific practical reality as to whether or not that applicant would have anyone to look after her if she were to relocate within Fiji.

3. The Court asked counsel for the Applicant to identify the practical realities in respect of the Applicant before this Court that the Tribunal had failed to consider. The only specific practical reality to which counsel for the Applicant referred was the fact that the Applicant would not be in his home town or the place of his birth. However, that was a matter to which the Tribunal turned its mind and noted that the Applicant had successfully relocated within Australia, not being the town of his birth or his upbringing. Otherwise, counsel for the Applicant was unable to identify any particular claim by the Applicant that gave rise to a “practical reality” specific to this Applicant.

4. A fair reading of the Tribunal’s decision makes clear that the Tribunal considered the public attitudes towards homosexuals in Kiev and noted there is a small gay scene including clubs and bars. Further, the Tribunal noted that it put to the Applicant that homosexuals are reported to feel quite comfortable living, studying and working in Kiev and that Kiev had a “lively gay scene”.

5. The Tribunal specifically considered the principles espoused in Randhawa v Minister for Immigration, Local Government and Ethnic Affairs (1994) 124 ALR 265 as to what is required in considering relocation. In particular the Tribunal noted:

   “The issue is whether it is reasonable, in the sense of practicable, for the applicant to relocate to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution. What is ‘reasonable’, in the sense of ‘practicable’, will depend upon the particular circumstances of the applicant and the impact upon him or her of relocation within his or her country of nationality.”

6. Further, the Tribunal referred to the High Court’s decision in SZATV v Minister for Immigration and Citizenship [2007] HCA 40 (“SZATV”) where Gummow, Hayne and Crennan JJ at [24] noted that what is reasonable in the sense of practicable would depend upon the particular circumstances of an applicant and the impact on that person of relocation within the country of nationality. The passage to which the Tribunal in the case before this Court had regard noted that whether relocation is reasonable and practicable is not confined to “the basic norms of civil, political and socio-economic rights” (SZATV at [25]; Januzi v Secretary of State for the Home Department [2006] 2 AC 426 at 457 per Lord Hope of Craighead).

7. Counsel for the Applicant submitted that in considering relocation the Tribunal had regard only to the general issues of life for gays in Kiev in finding “that the situation for gays and lesbians in Kiev was better than in other areas of Ukraine and that gays and lesbians felt quite comfortable living, studying and working there.”

8. However, a fair reading of the Tribunal’s decision record makes clear that peppered through the Tribunal’s summary of exchanges it had with the Applicant at the hearing are references put to the Applicant by the Tribunal about information before the Tribunal that indicated that:

   a)public attitudes towards homosexuals were generally tolerant in Kiev;

   b)there was a small gay scene with clubs and bars; and

   c)homosexuals were reported to feel quite comfortable living, studying and working in Kiev.

9. In particular, the Tribunal noted that the Applicant’s representative had asserted that the Applicant could not relocate within Ukraine because of the propiska system. The Tribunal noted that it put to the Applicant that a new system of registration had been introduced in 2005 that replaced most elements of the propiska system and that human rights groups had said that a person could now live, work and receive services anywhere in Ukraine. The Tribunal noted that it put to the Applicant that information before it suggested that the situation for homosexuals was more tolerant in Kiev than it was in the more rural areas in the Ukraine. The Tribunal noted the Applicant’s responses in respect of all these issues.

10. A fair reading of the Tribunal’s decision record does not suggest that there was any particular claim or practical reality (such as in NAIZ) made by the Applicant that the Tribunal would be required to consider in relation to relocation, beyond those to which it had regard and which it put to the Applicant. A fair reading of the Tribunal’s decision record suggests that there were several opportunities during the Applicant’s exchanges with the Tribunal where the Applicant could have raised issues peculiar to him that may have required individual consideration of the practical effect on the Applicant of that specific matter.

11. In the circumstances, the Tribunal’s finding that it was reasonable and practicable for the Applicant to locate to Kiev was open to it on the evidence and material before it and for the reasons it gave.

12. A fair reading of the Tribunal’s decision record does not support the allegation in Ground 2 that the Tribunal failed to consider what was reasonable, in the sense of practicable, for the Applicant in considering whether or not the Applicant could locate to Kiev.

13. Accordingly, Ground 2 is not made out.

State protection

1. Counsel for the Applicant submitted that the Tribunal was only considering the issue of state protection in the context of considering the issue of relocation. However, the Tribunal specifically stated that its finding on relocation was “in the alternative”. A fair reading of the Tribunal’s decision makes clear that the Tribunal was not satisfied that state protection was not available to the Applicant in the Ukraine.

2. Counsel for the First Respondent submitted that the Tribunal independently considered the issue of whether or not state protection was available to the Applicant. Counsel for the First Respondent submitted that the Tribunal concluded that, on the evidence before it, there was no failure on the part of the Ukrainian authorities to provide protection to homosexuals in the sense of a failure to meet the standards of protection required by international standards (Minister for Immigration and Multicultural Affairs v Respondents S152 of 2003 (2004) 205 ALR 487 (“Respondents S152 of 2003”)).

3. The Tribunal concluded, on the evidence and material before it, that it was not satisfied that there was a real chance that the Applicant would be persecuted for reasons of his homosexuality and his involvement in gay activism in the Ukraine, whether as an individual or as a member of an organisation, if he were to return to Ukraine in the reasonably foreseeable future. The Tribunal put to the Applicant that information before it indicated that police in the Ukraine, for the most part, treat homosexuals who claim to be victims of crimes as victims and follow the required procedures in conducting an investigation. The Tribunal concluded that there was no failure on the part of authorities in the Ukraine not to take reasonable measures to protect the lives and safety of homosexuals in the Ukraine to the standards of protection required by international standards (Respondents S152 of 2003 at [26]-[27]). 

4. This conclusion was based on the Tribunal’s application of the correct legal principles to the facts as it found them to be. The Tribunal’s findings were open to it on the evidence and material before it and for the reasons it gave.

5. In the circumstances, I reject the submission by counsel for the Applicant that there was no finding by the Tribunal that state protection was not available to the Applicant.

6. Having found that it was not satisfied that state protection was not available to the Applicant, the Tribunal was entitled to conclude, as it did, that the Applicant had not satisfied the relevant criteria for being a refugee. That criterion is essential to any claim made by the Applicant for a well-founded fear of persecution for a Convention-related reason.

7. It is for the Applicant to satisfy the Tribunal that he meets the criteria required for being a refugee (Abebe v The Commonwealth (1999) 197 CLR 510 at 576; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225 at [14]-[16]). If the Tribunal is not so satisfied s.65(1) of the Act makes clear that the Tribunal, as the relevant decision maker, must affirm the decision under review and refuse the Applicant a protection visa.

Conclusion

1. A fair reading of the Tribunal’s decision makes clear that the Tribunal understood the claims being made by the Applicant; explored those claims with the Applicant at a third Refugee Review Tribunal hearing; and had regard to all material provided in support, including post hearing material. The Tribunal put to the Applicant matters of concern it had about his evidence and noted the Applicant’s responses. The Tribunal also put to the Applicant independent country information before it and invited the Applicant to comment upon it. The Tribunal then made findings based on the evidence and material before it. Those findings of fact were open to the Tribunal on the evidence and material before it and for the reasons it gave. A fair reading of the Tribunal’s decision makes clear that the Tribunal reached conclusions based on the findings made by it and applied the correct law in reaching those conclusions.

2. In the circumstances, the Tribunal complied with its obligations under the statutory regime in the making of its decision, including the conduct of its review.

3. The Tribunal’s decision is not affected by jurisdictional error and is therefore a privative clause decision. Accordingly, pursuant to s.474 of the Act, this Court has no jurisdiction to interfere.

4. The proceeding before this Court should be dismissed with costs.

I certify that the preceding seventy (70) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate:  S. Kwong

Date:  29 April 2009