VWEF v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 798

FEDERAL COURT OF AUSTRALIA

VWEF v Minister for Immigration & Multicultural & Indigenous Affairs
[2004] FCA 798

VWEF  v  MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

V 344 of 2004

RYAN J
18 JUNE 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 344 of 2004

BETWEEN:	VWEF Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE OF ORDER:	18 JUNE 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.The applicant is to pay the 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
VICTORIA DISTRICT REGISTRY	V 344 of 2004

BETWEEN:	VWEF Applicant
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS Respondent
JUDGE:	RYAN J
DATE:	18 JUNE 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. There is before the Court an application under s 39B of the Judiciary Act 1903 (Cth) for review of a decision of the Refugee Review Tribunal (“the Tribunal”) made on 3 February 2004. By that decision the Tribunal affirmed the refusal by a delegate of the respondent Minister to grant the applicant a protection visa. The applicant is a national of Lithuania who arrived in Australia on 29 June 2002, on a subclass 421 visa, which permitted him to stay until 9 July 2002. On that day, 9 July 2002, he applied for a protection (class XA) visa.

2. The applicant claimed to have a well-founded fear of persecution by reason of membership of a particular social group, homosexuals, if he were to return to Lithuania.  He based that claim on experiences of what he said had been victimisation in his native country, taking the forms of ostracism and numerous incidents of verbal and physical abuse.  He claimed that his family had been threatened and their house had been unsafe for him to live in.  He also claimed to have been unable to live a normal existence, and to have felt physically and emotionally degraded.  He adduced medical reports tending to establish that he had been assaulted in December 2000, and again on 30 May 2002. 

3. The case which the applicant sought to make at the hearing before the Tribunal has been summarised in these paragraphs from the Tribunal’s reasons, at pp 5-6;

   ‘The applicant said Lithuania still had difficulties accepting homosexuality, even people who had been his friends could isolate him if they find out.  The police would discriminate against him.  If children broke his windows it would be treated as a game and the authorities would not take it seriously.  He was supported by his family.  At work also there was a good atmosphere, and he had told his friends about work his sexual orientation.  But people in the neighbourhood, and even people he went to school with, were not as understanding.  The applicant was beaten up a few times; he did not always go to the doctor.  An old school friend (mentioned in the hospital report) had criticised him for mixing with different people.  The applicant was also beaten up in the staircase of his apartment building more than once.  He did not know who had done this. 

   The Tribunal asked the applicant if he reported these incidents to the police.  The applicant said he did, but not every time.  He was reluctant to go to the police because he did not want to have to explain why he was beaten up.  When he was beaten by his friend, he did not report it because the perpetrator was his friend.  The Tribunal asked the applicant what sort of reaction he got from the police when he did complain to them.  The applicant said that they would ignore him, and not take his complaints seriously.  He felt they regarded him as the criminal, who deserved the treatment he received.  The Tribunal put it to the applicant that it would be difficult for the police to do anything if he was not able to identify the perpetrators.  The applicant said he was afraid to go to the police because they did not accept him. 

   The Tribunal observed that the applicant had not applied for asylum in various European countries when he visited them.  The applicant said he wanted to get as far away from Europe as possible.  Lithuanians were everywhere in Europe. 

   The Tribunal referred to the country information indicating that Lithuania had decriminalised homosexuality and had also instituted legislative provisions to protect homosexuals from discrimination and to criminalise incitement of hatred against homosexuals.  The applicant said this did not change the attitudes among people.  There would still be discrimination in the community.  He misses his family and loves country, he would like to go back but he does not feel safe.  He worries that the legislation will not be enforced.  He is sensitive to the atmosphere of prejudice, and feels much more relaxed in Australia.  The attitudes in Lithuania would not change for another 50 years.  He did not expect to be protected by the law; the government could not protect him by keeping him locked up in a room.  He wanted to live freely.  He has a lot of hobbies that take him outdoors; he is a sportsman who enjoys fishing and swimming.

   The Tribunal noted that Lithuania had a lobbying group to advance the interests of homosexuals.  The applicant said such organisations had a difficult job.  He noted that there were a couple of venues for homosexuals in his town, but they were targeted by young people who went there to attack the patrons.  The applicant did not want to attend such places.  Vilnius was not much different.’

4. The Tribunal then reviewed a body of country information which included a reference to a new Criminal Code introduced in Lithuania in September 2000, which made it an offence, pursuant to Article 169, to discriminate against a member of a group on the ground, amongst others, of “sexual orientation”. Article 170 of the same Code makes it an offence punishable by up to three years imprisonment to:

   ‘jeer, disdain, instigate to hatred or initiate discrimination towards a population group or its members because of their sex, sexual orientation, nationality …..’  etc

5. Despite the introduction of the new Code, the country information noted that there remained “a degree of societal prejudice against sexual minorities in Lithuania” but homosexual lobby groups and gay clubs and bars appear to operate openly and without hindrance.  The Tribunal also referred to country information which indicated that Lithuania had ratified the European Convention on Human Rights and was about to join the European Union.  As well, it had ratified most other major human rights treaties and international conventions on human rights, all of which have been incorporated as part of Lithuanian domestic law. 

6. Under the heading “Findings and Reasons”, the Tribunal concluded (at p 8);

   ‘Based on the information on the Department’s file, the Tribunal finds that the applicant is a Lithuanian national. 

   The Tribunal accepts that the applicant is homosexual, and that homosexuals are a particular social group in Lithuanian society.  It accepts, based on the country information and the applicant's own experiences, that he faces a real chance of community violence in Lithuania in connection with his sexual orientation.

   However, the Tribunal does not accept that the harm the applicant fears constitutes persecution within the meaning of the Convention.  As noted earlier, persecution within the meaning of the Convention means harm that is official or officially tolerated or uncontrollable by the authorities of the country of nationality.  Availability of state protection does not require that the authorities provide a guarantee against harm (Thiyagarajah v MIMA (1997) 73 FCR 176 at 179; Svecs v MIMA (1999) FCA 1507). In Svecs v MIMA Hely J stated:

   The issue is not whether the authorities can guarantee that the applicants will not suffer harm for a Convention reason, but whether, in the language of the Full Court in A, B and C v Minister for Immigration and Multicultural Affairs (1999) FCA 116 at par 42, [the relevant country] has “effective judicial and law enforcement agencies, is governed by the rule of law and has an infrastructure of laws designed to protect its nationals against harm of the sort said to be feared” by the applicants.’ (original emphasis)

7. The Tribunal, after that quotation, continued:

   ‘Lithuania is a constitutional parliamentary democracy with a police force and an independent judiciary (United States Department, Country Reports on Human Rights Practices 2002, released by the Bureau of Democracy, Human Rights, and Labour on 31 March 2003).  The country information cited above indicates that it would be contrary to law for the police in Lithuania to discriminate against homosexuals.  It would certainly be an offence for the police themselves to perpetrate violence against someone on the basis of their homosexuality.  Even if a particular officer was unresponsive to an initial complaint by the applicant, he would have further avenues to assert his rights.  His own evidence indicated that he had been fairly tentative in doing so. 

   The Tribunal understands that the applicant feels more comfortable in a country with a more liberal attitude to individuals' sexual orientation, and that he feels safer in a country which probably experiences less community violence against homosexuals.  However, the Tribunal is not satisfied that the applicant has a well-founded fear of persecution within the meaning of the Convention.’

8. The application to this Court imputes a variety of legal errors to the Tribunal.  That document I have been informed by the applicant was prepared with the assistance of a migration agent but no assistance has been afforded in developing the grounds there set out, which are that the decision of the Tribunal:

   ‘(a)was made without jurisdiction or is affected by an error of jurisdiction;

   (b)is affected by an error of law;

   (c)is an unreasonable decision that no reasonable decision-maker could have made it;

   (d)is based on a finding for which there was no evidence or other material;

   (e)       takes into account irrelevant considerations;

   (f)       fails to take into account relevant considerations;

   (g)was an improper exercise of the power conferred by the Migration Act 1958;

   (h)was not made in good faith or was not a bona fide attempt to exercise the powers conferred on the Tribunal;

   (i)was not capable of reference to the powers given to the Tribunal under the Migration Act 1958;

   (j)       was otherwise contrary to law.

9. As well as failing to provide written particulars or amplification of those grounds, the applicant, who today appears in person with the assistance of an interpreter, has been unable to advance any argument in support of any of those grounds.  Nor have I, after a careful reading of its reasons, been able to discern any jurisdictional error by the Tribunal.  It was a question of fact for the Tribunal whether the applicant had a well-founded fear of persecution in Lithuania by reason of his membership of the homosexual community.  The Tribunal answered that question in the negative, because it concluded that any adverse consequences which might be visited on the applicant would not be inflicted, condoned or connived at by the authorities in Lithuania.

10. The Tribunal also found that Lithuanian domestic law now provides the applicant with an adequate means of redress against discrimination of the kind which he fears if it were to reach the level of persecution, as that concept has been explained, for example, by Brennan CJ in Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 233. In my view, the Tribunal asked itself the correct question. It did not take into account any irrelevant consideration or fail to take account of a relevant consideration in arriving at its answer to that question. There is no ground for the suggestion made in the written application that the Tribunal’s decision was not made in good faith or was in some other respect ultra vires.  For these reasons the application must be dismissed with costs. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Ryan.

Associate:

Dated:            23 June 2004

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Mr R Knowles
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	18 June 2004
Date of Judgment:	18 June 2004