SZQRM v MIBP

Case [2013] FCA 1297

FEDERAL COURT OF AUSTRALIA

SZQRM v Minister for Immigration and Border Protection [2013] FCA 1297

Citation: SZQRM v Minister for Immigration and Border Protection [2013] FCA 1297
Appeal from: SZQRM & Ors v Minister for Immigration & Anor [2013] FCCA 772
Parties: SZQRM, SZQRN and SZQRO v MINISTER FOR IMMIGRATION AND BORDER PROTECTION and REFUGEE REVIEW TRIBUNAL
File number(s): NSD 1545 of 2013
Judge(s): BUCHANAN J
Date of judgment: 5 December 2013
Legislation: Migration Act 1958 (Cth), ss 36(3), 36(4), 36(5)
Cases cited: Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91
SZQRM & Ors v Minister for Immigration & Anor [2013] FCCA 772
Date of hearing: 8 November 2013
Place: Sydney
Division: GENERAL DIVISION
Category: No catchwords
Number of paragraphs: 23
Counsel for the Appellants: The First Appellant appeared in person
Counsel for the First Respondent: Ms R Francois
Solicitor for the First Respondent: DLA Piper Australia
Solicitor for the Second Respondent: The Second Respondent filed a submitting notice save as to costs

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1545 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZQRM
First Appellant

SZQRN
Second Appellant

SZQRO
Third Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

BUCHANAN J

DATE OF ORDER:

5 DECEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The name of the first respondent be changed to ‘Minister for Immigration and Border Protection’. 

2.The appeal be dismissed with costs. 

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 1545 of 2013
ON APPEAL FROM THE FEDERAL CIRCUIT COURT OF AUSTRALIA
BETWEEN:

SZQRM
First Appellant

SZQRN
Second Appellant

SZQRO
Third Appellant
AND:

MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent

REFUGEE REVIEW TRIBUNAL
Second Respondent

JUDGE:

BUCHANAN J

DATE:

5 DECEMBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

Background

  1. The first and second appellants are husband and wife and the third appellant is their daughter, who was born in 2010.  The first appellant arrived in Australia in November 2010 and the second and third appellants arrived in December 2010.  On 24 December 2010, the first appellant lodged an application for a protection visa which included his wife and child.  On 24 February 2011, a delegate of the first respondent refused to grant protection visas to the appellants. 

  2. The appellants are citizens of Lithuania.  The first appellant claimed to fear persecution owing to the sexual orientation of himself and his wife and to their public expression of their views about those matters.  It is accepted by the first respondent that the first and second appellants’ claims are based upon membership of a particular social group (based on their bisexuality) and upon the expression of political opinions (expressing a sexually liberated ideology). 

  3. The delegate accepted that the first appellant and the second appellant may have been…

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Details
AGLC
SZQRM v MIBP [2013] FCA 1297
Case
[2013] FCA 1297
Decision Date

CaseChat Overview and Summary

In the matter of SZQRM v MIBP, the appellants challenged the decision of the Refugee Review Tribunal (RRT) to deny their application for protection visas. The appellants, who were residents in Australia, argued that they faced persecution in Lithuania due to their bisexuality and family status. The Tribunal had initially found that the appellants had a well-founded fear of persecution but later concluded that their claims were defeated by other factors, such as their ability to reside in other European Union countries. The appellants contended that the Tribunal erred in its assessment of their claims.

The central legal issues in this case revolved around the interpretation and application of the Refugee Convention in the context of the appellants' claims. The court had to determine whether the RRT correctly assessed the appellants' risk of persecution in Lithuania, considering their bisexuality, family status, and the likelihood of their re-engaging in behaviour that might expose them to persecution. Additionally, the court needed to examine whether the RRT appropriately considered the appellants' ability to reside in other EU countries and how this affected their claims for protection visas.

The Federal Court found that the RRT did not err in its decision to deny the appellants' protection visas. The Court held that the RRT correctly assessed the appellants' risk of persecution in Lithuania, noting that the appellants had discontinued the behaviour that might expose them to persecution for reasons unrelated to fear of persecution. The Court also found that the RRT appropriately considered the appellants' ability to reside in other EU countries, which reduced the likelihood of persecution in Lithuania. The Court concluded that the RRT's decision was not flawed and dismissed the appeal with costs.

The Court ordered that the name of the first respondent be changed to 'Minister for Immigration and Border Protection' and that the appeal be dismissed with costs, in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The name of the first respondent be changed to ‘Minister for Immigration and Border Protection’.

2. The appeal be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The delegate accepted that the first appellant and the second appellant may have been the subject of some physical attacks in Lithuania but did not accept that the first appellant had substantiated a claim of a well-founded fear of persecution based on his membership of a particular social group, namely “bisexual people who are married with children in Lithuania”. The delegate found that the chance of the first appellant experiencing serious harm or mistreatment that would amount to persecution was remote. The decisions of the Refugee Review Tribunal On 24 March 2011, the appellants applied to the Refugee Review Tribunal (“the RRT”) for review of the delegate’s decision. In a decision given on 18 August 2011, the RRT affirmed the decision not to grant protection visas. In that decision, the RRT accepted that the first and second appellants had a well-founded fear of persecution in Lithuania arising from their membership of a particular social group, namely bisexual men and bisexual women. However, the RRT in that decision concluded that the appellants’ claims for protection visas were defeated by other matters. The decision of the RRT given on 18 August 2011 was set aside by order made by consent by the Federal Magistrates Court of Australia (as it then was) on 9 May 2012. Those consent orders were based upon the fact that the RRT found that the appellants (or at least the first and second appellants) had a right to enter and reside and work in Ireland on a temporary and permanent basis without giving them an adequate opportunity to address that issue. The RRT then conducted a further hearing. In the further hearing which it conducted, the RRT was not bound by the findings or conclusions made in the earlier RRT decision, but it was entitled to, and did, also have regard to the material earlier considered by the RRT in the first decision. After an initial hearing on 28 August 2012, the reconstituted RRT received further written submissions from the first appellant. Those written submissions addressed a suggestion raised by the RRT that he may have a right to enter and reside in a country of the European Union (“EU”) other than Lithuania. On 13 September 2012, the RRT wrote to the appellants inviting them to attend another hearing to discuss the possibility that it may be open to them to apply for residency in the United Kingdom. A further hearing was held by the RRT on 16 October 2012, at which that issue was further discussed. In a decision handed down on 30 October 2012, the RRT again affirmed the decision of the delegate not to grant the appellants protection visas. In its findings, the RRT did not accept that the appellants had a well-founded fear of persecution should they return to Lithuania. The RRT found that they had discontinued the behaviour which they claimed might expose them to persecution in Lithuania and had done so for reasons which were not related to any fear of persecution. Accordingly, there was no real chance that they would face persecution in Lithuania. The possibility that they might be recognised in that country was remote and could be further reduced by residing in a different place within Lithuania. The RRT also found, in passages to which I shall refer, that the first and second appellants would not be exposed to persecution in Lithuania through the public expression of their views about sexuality, an activity in which they had not engaged in Australia.

Ratio Decidendi

Legal Principle Established

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