SZLAY v Minister for Immigration and Citizenship

[2008] FCA 743

FEDERAL COURT OF AUSTRALIA

SZLAY v Minister for Immigration and Citizenship [2008] FCA 743

SZLAY v MINISTER FOR IMMIGRATION AND CITIZENSHIP AND REFUGEE REVIEW TRIBUNAL

NSD 323 OF 2008

WEINBERG J
22 MAY 2008
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 323 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG J
DATE OF ORDER:	22 MAY 2008
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellant pay the first respondent’s costs, to be taxed in default of agreement.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 323 OF 2008

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN: SZLAY
Appellant

AND:

MINISTER FOR IMMIGRATION AND CITIZENSHIP
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:	WEINBERG J
DATE:	22 MAY 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. When the matter was called on this morning, the solicitors acting on behalf of the appellant sought an adjournment of this appeal.  The circumstances leading to that application are set out in a letter dated 21 May 2008 addressed to my chambers, and received last night.  The author of that letter, Mr D. L. Bitel, a partner with Parish Patience Immigration Lawyers, stated that when the appellant’s case was first dealt with by his firm, another solicitor, no longer employed by that firm, had responsibility for its carriage. 

2. Mr Bitel stated:

   Upon careful examination of this case, it is my view that there is a further appellable point going to the grounds of persecution that were [sic] not fully pleaded in the Notice of Appeal filed 7 March 2008.  This point goes to the accepted facts by the Tribunal:

   1.        That the criminal law of Mongolia proscribes conduct, that is intrinsic to the identity of our client as a homosexual;

   2.        It is noted that the Tribunal raised the issue of the law to the applicant; and

   3.        That failure to consider this fact constitutes the Tribunal’s error.”

3. Mr Bitel added that his firm had briefed counsel, who was unable to appear before me this morning.  He attributed to counsel the view that this new point was arguable if the Court granted leave for it to be added to the notice of appeal.  Mr Bitel’s letter concluded by stating that it was not proposed to argue the other grounds of appeal, as pleaded.

4. The appellant today submitted that the appeal should be adjourned so that counsel could be retained to argue the new ground.  He also submitted that leave should be granted to amend the notice of appeal so that the new ground could be included.  The Minister opposed both the adjournment and the grant of leave to amend the notice of appeal. 

5. In my opinion, the adjournment should be refused, as should be the application for leave to amend.

6. The Federal Magistrate, against whose orders this appeal was brought, referred specifically in her reasons for judgment to a submission made by the appellant’s former solicitor to the effect that the evidence showed that:

   “s 113 of the Penal Code of Mongolia which prohibited ‘immoral gratification of sexual desires’”

   could be used against homosexuals.

7. The former solicitor submitted to the Federal Magistrate that the RRT’s failure to have regard to the existence of such a law supported the appellant’s application for review.

8. The point about s 113 of the Penal Code had been previously addressed by the RRT in its reasons for decision when it referred to a report by the International Gay and Lesbian Association (“IGLA”), dated 31 July 2000, to the effect that, although there were no laws covering homosexuality as such, s 113 “could be used against homosexuals”. 

9. The RRT referred, in addition, to a Canadian Immigration and Refugee Board report in 2003 regarding the treatment of homosexuals in Mongolia.  That report referred back to an earlier report by the IGLA, which stated:

   “Mongolia has no sodomy laws per se, but lacks any specific human rights protection on the basis of sexual orientation and does not recognize same-sex relationships [through] a domestic partnership or civil union policy.  Although Mongolia’s queers fear rejection from family and friends and some have reported getting into fist fights with family, there are no organised hate groups.”

10. It is plain that the treatment of homosexuals in Mongolia was at the forefront of the delegate’s consideration and that of the RRT as well.  It was also central to the judgment of the Federal Magistrate.   The appellant was well aware of the terms of s 113 of the Penal Code when he sought review of the RRT’s decision in the Federal Magistrates Court.  He did not at any stage argue that he faced persecution in Mongolia by reason of any legal strictures against homosexuality that operated in that country.  Quite to the contrary.  His case had always been presented on the basis that, although there were no laws against homosexual acts as such in Mongolia, conduct of that nature would be subject to social opprobrium.

11. The appellant did not provide any adequate explanation as to why counsel could not have been retained at an earlier stage to argue this point.  His solicitor, appearing before me, conceded that he had been considering the new ground for several days, but claimed that he had been unable to retain counsel to argue it in the time available.  I am not persuaded by that explanation.

12. There is nothing in the material before the RRT, which suggests that, as a matter of practical reality, homosexuals in Mongolia face prosecution under the Penal Code. Indeed, such evidence as there was before the RRT suggested quite the contrary.  Importantly, that was the appellant’s own position in answer to questions put to him during the course of the hearing. 

13. The proposed new ground of appeal is devoid of merit.  For that reason primarily, but also because no adequate explanation has been given for the dilatory conduct of the appellant in retaining counsel for today’s hearing, the application for an adjournment has been refused.  Leave to amend the notice of appeal is also refused.

14. The appellant has indicated that, in these circumstances, he wishes to abandon his appeal.  That is entirely proper because the existing grounds of appeal have no prospects of success.  It follows that the appeal must be dismissed, with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Weinberg.

Associate:

Dated:       22 May 2008

Counsel for the Appellant:	Mr R. Balzola
Solicitor for the Appellant:	Parish Patience Immigration Lawyers
Counsel for the First Appellant:	Mr D. Goodwin
Solicitor for the First Appellant:	DLA Phillips Fox

Date of Hearing:	22 May 2008
Date of Judgment:	22 May 2008