SZLAY v Minister for Immigration
[2008] FMCA 156
•15 February 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLAY v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 156 |
| MIGRATION – Review of decision by Refugee Review Tribunal – whether Refugee Review Tribunal’s decision affected by jurisdictional error – whether the Refugee Review Tribunal’s findings were open on the evidence – whether the Refugee Review Tribunal failed to take account of relevant considerations – whether the Refugee Review Tribunal properly applied the law to the facts. |
| Judiciary Act 1903 (Cth), s.39B Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 474; pt.8 div.2 |
| Re Ruddock; Ex Parte Applicant S154/2002 (2003) 201 ALR 437 Abebe v Commonwealth (1999) 197 CLR 510 SJSB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 225 NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 |
| Applicant: | SZLAY |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File number: | SYG 2139 of 2007 |
| Judgment of: | Emmett FM |
| Hearing date: | 4 February 2008 |
| Date of last submission: | 4 February 2008 |
| Delivered at: | Sydney |
| Delivered on: | 15 February 2008 |
REPRESENTATION
| Solicitors for the applicant: | Mr R. Turner, Parish Patience Immigration Lawyers |
| Counsel for the respondent: | Mr G. Johnson |
| Solicitors for the respondent: | Ms P. Nandagopal, DLA Phillips Fox |
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 2139 of 2007
| SZLAY |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
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 (“the Tribunal”) dated 31 May 2007 and handed down on 12 June 2007.
The Applicant claims to be from Mongolia of Mongolian ethnicity and of homosexual orientation (“the Applicant”).
The Applicant arrived in Australia on 26 December 2006, having departed legally from Buyant Ukhaa Airport on a passport issued in his own name and a visa issued on 30 June 2006.
On 8 February 2007, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural Affairs (“the Department”) under the Act.
In his protection visa application, the Applicant claimed that he feared persecution from the Mongolian authorities, his family and society in Mongolia in general.
On 5 March 2007, a delegate of the First Respondent (“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 Refugees Convention as amended by the Refugees Protocol (“the Convention”). The Delegate cited the availability of temporary residence both in Germany and the United States of America, as evidenced by the valid visas in the Applicant’s passport.
Further, the Delegate stated in her decision “I am not satisfied that he has substantiated his claim of being a homosexual who was discriminated against and/or persecuted on account of his sexual orientation. To the contrary, I find that the applicant had completed 20 years of education, graduated with a “Diploma of German Language” (1:20) and is currently studying Politics at the Frankfurt University.”
On 22 March 2007, the Applicant lodged an application for review of the Delegate’s decision by the Tribunal. The Applicant provided no further material in support of the review application. On 31 May 2007, the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
On 10 July 2007, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.
Legislative framework
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.
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.
Australia has protection obligations to a refugee on Australian territory.
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.”
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 Tribunal proceeding
On 20 April 2007, the Tribunal invited the Applicant to attend a hearing on 16 May 2007. The Applicant attended the hearing and gave oral evidence in which he expanded upon his written claims. The Tribunal noted that it discussed with the Applicant his travels, his employment and financial position, his family and his claims.
The Tribunal noted that, although the Applicant claimed to have a well-founded fear of persecution arising from his homosexuality, he had been supported by his family financially for the ten years since his homosexuality was discovered and never in those ten years applied for refugee status in foreign countries visited by him.
On 16 May 2007, the Tribunal wrote to the Applicant identifying information that was inconsistent with the Applicant’s claims, including independent country information, and inviting the Applicant to comment and provide additional information.
On 29 May 2007, the Applicant’s adviser responded to the Tribunal’s letter dated 16 May 2007 and provided details of independent country information about the treatment of homosexuals in Mongolia.
The Tribunal found the Applicant was not a witness of truth.
The Tribunal stated that it gave the Applicant the benefit of the doubt and accepted that he is homosexual.
The Tribunal was not satisfied that the Applicant has a well-founded fear of persecution in Mongolia by reason of his homosexuality. The Tribunal was not satisfied that state protection for the Applicant was not available in Mongolia.
The decision of the Tribunal is accurately summarised by the First Respondent in his written submissions as follows:
“The Tribunal was ultimately not satisfied that the applicant had a well-founded fear of persecution in Mongolia for a number of reasons:
- The applicant’s failure to apply for international protection in Europe or the United States (CB 115.4).
- The fact that the applicant returned to Mongolia for about a month in November 2006 before coming to Australia (CB 114-25). The Tribunal considered that the applicant would not have returned to Mongolia even for a short amount of time, let alone for a period of about a month, if there was any real chance that he would be subject in Mongolia to serious harm amounting to persecution (CB 115.5; 115.8).
- The Tribunal was not satisfied, based upon country information, that homosexuals are persecuted in Mongolia or that there is a real chance that the applicant would be persecuted upon that basis now, or in the reasonably foreseeable future (CB 115.7).”
The proceeding before this Court
The Applicant was represented before this Court by Mr Turner, solicitor. The Applicant did not attend the hearing.
Mr Turner confirmed that the Applicant relied on the grounds identified in the application filed on 10 July 2007 as follows:
“1.The Tribunal based its decision on facts in respect of which there was no evidence.
Particulars
(i) The conditions prevailing in respect of the treatment of homosexuals in Germany and the United States of America.
2.The Tribunal failed to take into account of relevant considerations.
Particulars
(i) The Tribunal found at p. 13:
“For his part, the Applicant provides no evidence in his protection visa application or application for review that homosexuals are persecuted in Mongolia.”
(ii) “In the adviser’s reply dated 29 May 2007, a number of articles are provided about the treatment of homosexuals in Mongolia.”
(iii) A finding that “the applicant provides no evidence in his protection visa application or application for review”, when such evidence had been provided, demonstrates that the Tribunal failed to take any, or any real, account of the material provided by the applicant.
3.The Tribunal failed to properly apply the law to the facts as found.
Particulars
(i) The Tribunal at page 10 refers to:
“As reported by the International Gay and Lesbian Association (ILGA) (World Legal Survey: Legal Provisions, 31 July 2000). There are no laws covering homosexuality.” As noted by the same article, “Section 113 of Penal Code prohibiting ‘the immoral gratification of sexual desires,’ can be used against homosexuals.”
(ii) At page 13:
“The Tribunal also put to the Applicant that independent country information available to the Tribunal indicated that while there was still some social stigma attached to being a homosexual, homosexuals are not persecuted in Mongolia, and invited the Applicant to comment.”
“The Tribunal accepts the independent country information put to the Applicant in its letter of 16 May 2007 and is not satisfied that homosexuals are persecuted in Mongolia or that there is a real chance that he would be subject to persecution for a Convention reason because he is homosexual if he returns to Mongolia, now or in the foreseeable future.”
(iii) The Tribunal has failed to apply the fact of Section 113 of the Penal Code to law by finding that it accepted the independent country information which showed that “homosexuals are not persecuted in Mongolia”.
4.The Tribunal failed to carry out its statutory duty and/or applied the wrong test.
Particulars
(i) By always looking for independent support for claims of persecution the Tribunal placed too high a bar on the credibility of the Applicant and failed to properly review the claims of the Applicant.”
Ground 1
It is common ground that the only claim raised by the Applicant in his protection visa application was a fear of persecution in Mongolia by reason of his homosexuality. In affirming the decision under review, the Tribunal found that, in circumstances where the Applicant had lived in Germany for 10 years, had returned to Mongolia during that time for a month, had visited other European countries and the United States of America and yet had not sought protection, the Applicant’s asserted fear of persecution for a Convention reason was not well-founded.
The Tribunal noted that the Applicant had stated his father had been a diplomat who was embarrassed by his son’s homosexuality in Mongolia. However, the Tribunal was not satisfied that the Applicant’s parents so hated the Applicant because of his homosexuality in circumstances where they supported him in Germany over an extended period. The Tribunal found that the Applicant’s failure to seek protection in other countries indicated that the Applicant’s experiences in Mongolia were not of sufficient concern to cause him to seek protection and therefore the Applicant did not have a well-founded fear of serious harm amounting to persecution because he is a homosexual or for any other Convention related reason.
Further, the Tribunal found that, if the Applicant had a fear of harm from his parents or other family members or authorities in Mongolia or from the Mongolian society itself then the Applicant would have applied for protection or refugee status in Germany on arrival there in August 1997.
Mr Turner also submitted that, on a fair consideration of the claims and evidence put before it by the Applicant, the Applicant was claiming to have a well-founded fear of persecution in Germany and the United States of America by reason of his Mongolian ethnicity and homosexuality.
In support of this submission Mr Turner referred the Court to the Applicant’s adviser’s letter dated 29 May 2007 sent to the Tribunal in response to the Tribunal’s invitation to provided information dated 16 May 2007. In that letter the adviser stated that the Applicant did not want to live in either Germany or the United States of America “because of racism and crime”. The letter stated that “The applicant was not impressed from the insecurity situation in USA as well. He expressed his bad impression about USA during the hearing.”
In the course of exploring the Applicant’s evidence with him, the Tribunal asked the Applicant why he had not sought protection in those countries. It was in response to the Tribunal’s questions that the Applicant stated his concerns about racism in Germany.
The Tribunal noted that it put to the Applicant that the Applicant had not taken any opportunities to apply for refugee status in Germany, the United States of America and the other countries in Europe that he had visited. The Tribunal noted the Applicant’s reply that he came to Australia because he heard it would protect him and because he felt Australia was the best country.
The Tribunal noted that it put to the Applicant that he had chosen to return to Mongolia in November 2006 as indicating to the Tribunal that he did not have a well-founded fear of serious harm amounting to persecution for a Convention reason in Mongolia.
The Tribunal noted that Applicant’s adviser’s response to its concern that the Applicant did not seek protection in other countries because he did not consider he would be safe there for the rest of his life.
I do not accept the Applicant’s contention that a claim of a well-founded fear of persecution in Germany or the United States arose on the material before the Tribunal. A fair reading of the Tribunal’s decision and the Applicant’s adviser’s response disclose that the Applicant alleged that racism and crime were reasons why he may not feel secure in the United States of America or other countries. However, that is not a claim of a well-founded fear of serious harm amounting to persecution in those countries for a Convention related reason.
Mr Turner further submitted that it was not open to the Tribunal not to accept the Applicant’s claims that homosexuals in Germany were subject to serious harm. Mr Turner submitted that there was no evidence before the Tribunal as to the existence of persecution in either Germany or the United States of America of homosexuals and, in the circumstances, it was not open to the Tribunal to make that finding.
Counsel for the Respondents submitted that the Tribunal did not need to refer to positive evidence in support of any underlying proposition that the countries referred to would be safe for the Applicant. Counsel for the Respondents submitted that it was to the Applicant to forward such material as he wished and for the Tribunal to decide whether, on the material before it, the criteria for the visa was satisfied (Re Ruddock; Ex Parte Applicant S154/2002 (2003) 201 ALR 437 at [57]; Abebe v Commonwealth (1999) 197 CLR 510 at [187]; SJSB v Minister for Immigration and Multicultural Affairs [2004] FCAFC 225 at [14]-[16]).
I accept the Respondent’s submission.
In the circumstances, the Applicant’s contention that the Tribunal made an error going to its jurisdiction in not being satisfied that the Applicant would be persecuted because of his homosexuality in Germany or the United States of America is not made out.
Accordingly, ground 1 is not made out.
Ground 2
Mr Turner submitted that the Tribunal erroneously found that the Applicant provided no evidence “in his protection visa application or application for review that homosexuals are persecuted in Mongolia.” Mr Turner submitted there was material provided to the Tribunal by the Applicant’s adviser in its letter dated 29 May 2007 referring to a number of articles about the treatment of homosexuals in Mongolia.
However, a fair reading of the Tribunal’s decision suggests that the Tribunal was intending that statement to be confined to the material in the Applicant’s protection visa application and his application for review by the Tribunal. These documents contain only the Applicant’s evidence. Subsequently, during the course of the Tribunal’s review and in response to the Tribunal’s letter inviting further information, the Applicant’s adviser provided country information about the treatment of homosexuals in Mongolia. The Tribunal had regard to this material, noting with particularity the submissions made by the adviser. Indeed the Tribunal accepted that some discrimination of homosexuals may occur in Mongolia, as in many other countries.
However, the Tribunal was not satisfied that homosexuals are persecuted in Mongolia or that there is a real chance that the Applicant would be subject to persecution for a Convention reason because of his homosexuality if he were to return to Mongolia now or in the reasonably foreseeable future. The Tribunal was satisfied that the Applicant had not been subject to past harm amounting to persecution from Mongolian authorities or Mongolian society at large because of his homosexuality. Nor was the Tribunal satisfied that State protection was not available to the Applicant if harm was to befall him because of his homosexuality.
The Tribunal noted with particularity the reasons given by the Applicant as to why he did not seek protection in other countries visited by him.
However, the Tribunal was not satisfied that the Applicant had a well-founded fear of persecution amounting to serious harm by reason of his homosexuality if he were to return to Mongolia, either from family members, police or other authorities.
All those matters are findings of fact. Those findings were open to the Tribunal on the evidence and material before it and for which it gave reasons. To the extent that the Applicant seeks to cavil with those findings, the Applicant is seeking merits review which this Court cannot undertake (Abebe v Commonwealth of Australia (1999) 162 ALR 1 at [195]; NAHI v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 at [10]).
In the circumstances, I do not accept the contention that the Tribunal’s finding that, “for his part the applicant provides no evidence for his protection visa application or application for review that homosexuals are persecuted in Mongolia” was not open to it.
Accordingly, ground 2 is not made out.
Ground 3
Mr Turner also submitted that it was incorrect for the Tribunal to find the Applicant’s claim of a fear of serious harm amounting to persecution if he were to return to Mongolia was unsupported by evidence.
Mr Turner submitted that the Tribunal had failed to have regard to s.113 of the Penal Code of Mongolia which prohibited “immoral gratification of sexual desires” as supportive of the Applicant’s claims. The Applicant’s adviser submitted in his letter dated 29 May 2007, that the independent country information stated that there was limited anecdotal evidence that homosexuals had been detained pursuant to s.113 of the Penal Code and questioned about their contacts and that police kept files on known homosexuals in Mongolia, as a result of which, homosexuals “would quite likely face harassment” in Mongolia.
A fair reading of the Tribunal’s decision makes clear that the Tribunal was aware of s.113 of the Penal Code. Indeed it was the Tribunal that first raised s.113 of the Penal Code in its letter dated 16 May 2007 to the Applicant. The Tribunal referred in its decision to the detail of the adviser’s response.
A fair reading of the Tribunal’s decision discloses that the Tribunal was confining its statement that the Applicant’s claims of serious harm amounting to persecution were unsupported. The reference to s.113 of the Penal Code and the anecdotal evidence referred to above are not incontrovertible evidence of a claim by the Applicant that there is a real chance that he would be subject to serious harm amounting to persecution by reason of his homosexuality, if he were to return to Mongolia now or in the reasonably foreseeable future.
Ultimately, the Tribunal rejected the Applicant’s claims and was not satisfied that there is a real chance that the Applicant would be subjected serious harm amounting to persecution if he were to return to Mongolia now or in the foreseeable future. As stated above in these Reasons, the Tribunal’s conclusion was based on findings of fact made by the Tribunal that were open to it on the evidence and material before it and for which it provided reasons. The Tribunal applied the correct law to the facts as it found them.
In the circumstances, it was open to the Tribunal to find that the Applicant’s claims of a well founded fear of persecution for a Convention related reason were unsupported by evidence.
Accordingly ground 3 is not made out.
Ground 4
In light of the reasons referred to above, ground 4 appears to be no more than a disagreement with the findings and conclusions of the Tribunal. As such, ground 4 seeks merits review which, as stated above in these Reasons at paragraph 45, this Court cannot undertake.
Accordingly ground 4 is not made out.
Conclusion
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.
The proceeding before this Court, filed on 10 July 2007, is dismissed with costs.
I certify that the preceding fifty-eight (58) paragraphs are a true copy of the reasons for judgment of Emmett FM
Associate: S. Kwong
Date: 15 February 2008
0
5
2