YAVAS v Minister for Immigration - [2006] FMCA 320

FEDERAL MAGISTRATES COURT OF AUSTRALIA

YAVAS v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 320

MIGRATION – MRT decision – refusal of visa under health criteria – applicant with condition likely to result in significant cost to the Australian community – assessment of whether unlikely to result in “undue” cost – whether Tribunal failed to take into account relevant considerations or considered irrelevant matters – applicant from Turkish Republic of Northern Cyprus with HIV infection – refused interdependent relationship visa – no jurisdictional error found.

Acts Interpretation Act 1901 (Cth), s.8

Judiciary Act 1903 (Cth), s.39B

Migration Act 1958 (Cth), ss.424A(3)(a), 474(1), 483A, Pt.8
Migration Litigation Reform Act 2005 (Cth), Sch.1 cl.41
Migration Regulations 1994 (Cth), reg.2.25A(1), Sch.2 cl.826.223, Sch.4 items 4007, 4007(1)(c), 4007(2), 4007(2)(b)

Amarasekera & Anor v Minister for Immigration [2005] FMCA 1500
Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134
Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12
Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
Puhlhofer v Hillingdon London Borough Council [1986] AC 484

Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441

Applicant:

CEMAL YAVAS

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

Second Respondent:

MIGRATION REVIEW TRIBUNAL

File Number:

SYG1739 of 2004

Judgment of:

Smith FM

Hearing date:

2 March 2006

Delivered at:

Sydney

Delivered on:

29 March 2006

REPRESENTATION

Counsel for the Applicant:

Mr J Nolan

Solicitors for the Applicant:

Taylor & Scott

Counsel for the First Respondent:

Mr S Lloyd

Solicitors for the Respondents:

Clayton Utz

ORDERS

The application is dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1739 of 2004

CEMAL YAVAS

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL AFFAIRS

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application filed in the Federal Court on 23 April 2004 which has been transferred to this Court by order of Stone J on 2 June 2004. It seeks orders by way of judicial review of a decision of the Migration Review Tribunal (“the Tribunal”) dated 26 March 2004. The Tribunal affirmed a decision of a delegate which refused to grant a Partner (Temporary) (Class UK) visa to the applicant.
The Court has jurisdiction to grant relief in the proceeding under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”), which confers the same jurisdiction as the Federal Court under s.39B of the Judiciary Act 1903 (Cth). Section 483A was repealed by the Migration Litigation Reform Act 2005 (Cth), but the repeal does not affect the continuance of the present proceeding (see Sch.1 cl.41 of the amending Act, and Acts Interpretation Act 1901 (Cth), s.8). The powers of both Courts are subject to limitations under Part 8 of the Migration Act, which have the effect that I cannot set aside the Tribunal decision and send the matter back unless I am satisfied that the Tribunal’s decision was affected by jurisdictional error (see Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76], Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex parte ApplicantsS134/2002 (2003) 211 CLR 441 at [15] and [76]‑[77] and subsequent cases). I do not have power myself to decide whether the applicant qualifies for the visa he seeks.
The sub‑class of visa sought by the applicant was available to a person who established that he or she had “an interdependent relationship” with a nominator who is an Australian citizen or Australian permanent resident. It is unnecessary for me to examine the regulations defining such a relationship, nor the extensive evidence presented by the present applicant to establish that he had a long standing commitment to his nominator in a homosexual relationship. Both the delegate and the Tribunal assumed that their claimed relationship was genuine and continuing.
In short, they claimed to have commenced their relationship in 1979 when both were attending High School in the Turkish Republic of Northern Cyprus (“TRNC”). Separations occurred in the 1980s, during periods of study and conscription. They also had difficulty revealing their situation since “our Turkish culture does not accept and tolerate same sex relationships”, but in 1994 they moved into a flat together and lived “as very good friends” until the nominator left to visit his sister in Australia in the beginning of 1995. This visit was extended. In 1996 the nominator gained Australian permanent residency as a relative of his sister, on the basis that she was in “special need” of emotional support following the breakdown of her marriage. The applicant came to Australia on a visit in 1998, and immediately resumed his relationship and cohabitation with the nominator.
In the course of medical assessments required for the visa application, the applicant was diagnosed with HIV infection. On the medical evidence which was ultimately before the Tribunal, he remained asymptomatic, was responding to combination antiretroviral therapy, and “using the best available data the chance of Mr Yavas’ HIV disease progressing in the next 3, 6, or 9 years is 2%, 5% and 13% respectively”.
Extensive evidence and submissions were presented to the delegate and the Tribunal which described hardships if the visa were refused. For example, in his final statutory declaration given to the Tribunal, the applicant said:
At the moment, my biggest concern is that I may be forced to be separated from my partner. I can’t even begin to imagine life without my partner – where or how I could live without Umit in my life.
At present my health is good. I work full–time and live a normal and productive life. Likewise my partner has secure employment. We have a happy and comfortable life together.
In Australian culture we can live productive lives free of ostracism. If I were to return to Cyprus I would be confronted with many problems. Firstly, Cyprus has a poor government without international recognition. I have concerns that the health system is not well developed and I am very worried that I will not be able to access the treatment I need for HIV. I also believe that the world sanctions on Cyprus would even prevent me from seeking through my own initiatives. Without treatment I would be unable to live with good health, as I do in Australia.
In addition, my family is very traditional and very religious. They would be unable to understand or accept my HIV status or my sexuality as a gay man. I feel there would be a real threat to my safety. As Cyprus is a small community, my partner would very quickly find himself in a similar situation to me regarding his family.
Living in Cyprus would also have severe repercussions socially, as the community does not accept homosexuality. There would be further prejudice towards me because of my HIV status. As such I would be unable to work and support myself. I would be unable to function or contribute to the life of the community.
If I were to be sent back to Cyprus, the reality is that my health would suffer. My life would be meaningless, as I would be ostracized from my family and the community. I would be penalized physically, socially and emotionally because I am a gay man, living with HIV. There would be severe repercussions not only for me but also my partner and our families. My only wish and plea is to remain in Australia where I could maintain the life I have here, free of prejudice and ostracism so that I can function as a normal person and contribute to my community.
One criterion for the visa which was required to be satisfied at the time of decision was in Sch.2 cl.826.223 of the Migration Regulations 1994 (Cth) (“the Regulations”) that “the applicant satisfies public interest criteria … 4007 …”. This was a health requirement, which relevantly provided that:
4007(1)The applicant:
…
(c)     subject to subclause (2), is not a person who has a disease or condition …
(i)… such that a person who has it would be likely to:
(A)    require health care or community services …
during the period of the applicant’s proposed stay in Australia; [and]
(ii)provision of the health care or community services relating to the disease or condition would be likely to:
(A)    result in a significant cost to the Australian community in the areas of health care and community services …
When determining whether there could be “a significant cost”, a decision‑maker was required by reg.2.25A(1) to obtain the opinion of a Commonwealth Medical Officer and to “take the opinion … to be correct”.
In the present matter, after two deferrals so as to obtain further evidence of the applicant’s condition, a Medical Officer gave the opinion on 12 June 2001 that the applicant failed to meet the above public interest visa condition for the reasons:
This 36 year old male applicant has tested positive for HIV. The total lifetime cost for treating and providing care for patients who are HIV positive and who develop AIDS is considered to be significant and is estimated to be $239,000.
In the course of the appeal to the Tribunal, the Tribunal drew the applicant’s attention to the conclusive effects of this opinion, and invited him to apply for a further Medical Officer opinion. However, the applicant’s solicitors told the Tribunal on 16 September 2003 that they were instructed to decline the invitation to obtain a new medical assessment. No issue was taken before the Tribunal, or in the present proceedings, as to the legal effectiveness of the opinion given in 2001.
It was, therefore, conceded that the applicant must be found not to be able to satisfy public interest item 4007 unless a power of waiver were exercised. That power was provided in item 4007(2):
4007(2)The Minister may waive the requirements of paragraph (1) (c) if:
(a) the applicant satisfies all other criteria for the grant of the visa applied for; and
(b) the Minister is satisfied that the granting of the visa would be unlikely to result in:
(i)undue cost to the Australian community; or
(ii)undue prejudice to the access to health care or community services of an Australian citizen or permanent resident.
The applicant’s solicitor made legal submissions to the delegate and the Tribunal concerning the ambit of this power and the meaning of “unlikely to result in undue cost to the Australian community”. Reference was made to the interpretation provided by the Full Court in Bui v Minister for Immigration & Multicultural Affairs (1999) 85 FCR 134 at 148:
[46]… There are obviously broad judgments to be made in determining what amounts to “undue cost” and “undue prejudice”. Reading together the criteria in Item 4007(1)(c)(i) and the criterion for waiver in Item 4007(2)(b)(i) it is apparent that the occasion for the exercise of the waiver will only arise where it is already established that the cost to Australia, if the visa is granted, is likely to be “significant”. The Minister will therefore need to be satisfied that a likely “significant” cost will nevertheless not be “undue”. In the former determination he or she is evidently to be bound by the opinion of a Medical Officer of the Commonwealth.
[47]The evaluative judgment whether the cost to the Australian community or prejudice to others, if the visa is granted, is “undue” may import consideration of compassionate or other circumstances. It may be to Australia’s benefit in moral or other terms to admit a person even though it could be anticipated that such a person will make some significant call upon health and community services. There may be circumstances of a “compelling” character, not included in the “compassionate” category that mandate such an outcome. But over and above the consideration of the likelihood that cost or prejudice will be “undue” there is the discretionary element of the ministerial waiver. And within that discretion compassionate circumstances or the more widely expressed “compelling circumstances” may properly have a part to play.
Clearly, this gives a very broad ambit to the range of considerations which a decision‑maker may bring into account when deciding the precondition that a “significant” cost “would be unlikely” to be “undue”. Although the Full Court interpreted the word “may” as conferring a discretion “over and above” the decision on the precondition, it is difficult to imagine what considerations could still remain relevant to the discretion.
In view of the fluidity of the concept of “undue” it is useful, when exercising a function of judicial review over an administrative decision which addresses the “undue cost unlikely” precondition, to recall the warning of Lord Brightman in Puhlhofer v Hillingdon London Borough Council [1986] AC 484 at 518, which was extracted by Gleeson CJ and McHugh J in Minister for Immigration & Multicultural Affairs v Eshetu (1999) 197 CLR 611 (“Eshetu”) at 627:
Where the existence or non‑existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision‑making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.
In the present case it is not necessary for me to further explore the meaning of “undue” and the ambit of considerations which might be legally relevant when deciding the “undue cost unlikely” precondition and then, if it is satisfied, when exercising the residual discretion. This is because it was not contended by the applicant that the Tribunal’s reasons exhibited any error of law in its interpretation of item 4007(2). Although it was argued that the Tribunal took into account irrelevant matters and failed to take into account relevant matters, the errors which were argued occurred within the Tribunal’s discussion of topics which were accepted to be generally relevant to the legal power, and to have been appropriately isolated by the Tribunal for its express consideration in the present case.
In its “Findings and Reasons”, the Tribunal identified a list of “factors” which it thought were relevant for its consideration, and briefly explained its assessment of each of them. The factors were (numbering added):
i)The opinion of MOC (i.e. the Medical Officer).
ii)The extent of social welfare, medical, hospital or other institutional care likely to be required in Australia.
iii)Educational and occupational needs and prospects of the visa applicant in Australia over the whole period of intended stay.
iv)The potential for the applicant’s state of health to deteriorate.
v)The overall lifetime charge to Australian public funds.
vi)The willingness and ability of a sponsor, family member or other person or body to provide care and support at no public cost. In this regard it needs to be recognised that commitments such as payment of private health insurance or undertakings do not exclude the possibility of public cost (all permanent residents have a right to Medicare treatment, for example).
vii)Factors preventing the nominator from joining the visa applicant in TRNC.
viii)Whether there are Australian children of the relationship who would be adversely affected by a decision not to waive.
ix)The location and circumstances of family members of the applicant and the sponsor.
x)Humanitarian or compassionate factors.
xi)Other issues.
It then concluded:
61.Weighing up the above factors and taking into account the evidence contained on the files and given at the hearing, the Tribunal is not satisfied that the granting of the visa sought would be unlikely to result in an undue cost to the Australian community. This finding determines the outcome of the review application.
It is clear from this conclusion that the Tribunal declined to waive the health criterion because it was not satisfied under the precondition, so that it did not need to consider any remaining discretionary considerations. It has, therefore, implicitly opined that each of the above “factors” was legally relevant when considering whether “undue” cost was unlikely. As I have indicated, no challenge was made in the present judicial review grounds to this opinion. It was suggested from the bar table that the Tribunal may have been guided in its identification of these factors by administrative guidelines, but these were not tendered in evidence and no argument was presented that, if this occurred, it gave rise to jurisdictional error.
The arguments of the applicant’s counsel attacked the Tribunal’s reasoning only in relation to factors (vii), (x) and (xi). I shall address his arguments in that sequence.

The possibility of TRNC reunification (ground 2 of the application).

This ground argued that the Tribunal gave weight to an irrelevant or legally impermissible matter in its discussion of factor (vii). Its discussion was:
Factors preventing the nominator from joining the visa applicant in TRNC
56.It has been stated repeatedly that it is not feasible for the visa applicant and the nominator to live together as a gay couple in TRNC. This claim is significantly undermined in the Tribunal’s view by the fact that the couple lived together between 1994 and 1996. The visa applicant went back to TRNC recently to see his father and it appears TC, a gay friend of his, went with him for at least some of the trip. The Tribunal does not consider there to be any significant factor preventing the nominator and the visa applicant from living together in TRNC in the future on the same basis as they did in the past. There is the added possibility that if Cyprus were to reunify in the near future, the nominator and the visa applicant shall be able to reside in any country in the EU. This factor inclines the Tribunal against exercising the health waiver in this matter.
Counsel for the applicant focused upon the Tribunal’s reference to “the added possibility” in the penultimate sentence. It was submitted that this consideration “assumed great significance” and even “tipped the balance” in the Tribunal’s assessment of the claimed obstacles to the applicant and nominator returning to TRNC. It was argued that it was legally impermissible for such weight to have been given to the possibility of reunification because “the conclusion that there was a real prospect that Cyprus would be reunified in the “near future” and what could flow from that – namely that the applicant would be able to reside in any country in the EU – was based upon pure (and it is submitted, impermissible) speculation”.
Earlier in its reasons at [11], the Tribunal had recorded a finding that “it now seems quite possible that the two Cypriot states shall reunify in the near future and join the European Union (EU)”.
The applicant’s submission principally relied upon reading the Tribunal’s concluding sentence in its [56] as referring purely to the “added possibility” of reunification and access to the EU. On this reading, that possibility would appear to be the sole reason for the Tribunal’s refusal to act upon all the applicant’s claims of “factors preventing the nominator from joining the visa applicant in TRNC”.

However, I accept the argument of counsel for the Minister that this is not the correct understanding of the last sentence. In my opinion, the Tribunal’s reference to “this factor” as inclining the Tribunal “against exercising the health waiver in this matter” is a reference to its cumulative assessment of all the claimed hardship factors which it had earlier extracted from various submissions and evidence given for the applicant, and which it summarised collectively in the opening sentence of its [56] as being that “it is not feasible for the visa applicant and the nominator to live together as a gay couple in TRNC”. In my opinion, on the overall reading of the paragraph, the essential reason for the Tribunal declining to give the claimed hardships determinative effect was its assessment that they were “significantly undermined” by the fact that in the past the applicant and nominator had been able to live as a couple in TRNC.
It therefore becomes difficult to assess whether the Tribunal in fact gave any particular significance to the possibility of the applicant and nominator being able to relocate within the EU in the future. Counsel for the Minister submitted, indeed, that the challenged sentence was no more than a “side comment”, and that, even if the possibility of reunification was legally irrelevant, the Tribunal’s reference to it “could not have materially affected the decision” so as to give rise to a right to relief (citing Mason J in Minister for Aboriginal Affairs v Peko‑Wallsend Ltd (1986) 162 CLR 24 at 40 par.(c)).
In my opinion, the Tribunal’s reasons should not be read as showing that no significance at all was given to the possible effects of future reunification. In reasons which, at this point, were very compressed, the Tribunal thought it appropriate to refer to this possibility as “added” to its other reasons for rejecting the “not feasible” claims. I therefore consider that it has been given some weight, and should not be found to have had no influence upon the Tribunal’s conclusions.
However, I am not persuaded that it was legally impermissible for the Tribunal to bring the possibility of unification into its assessment. Clearly, many of the factors which a decision‑maker is obliged or permitted to consider when deciding whether or not a future significant health cost to the Australian community is “unlikely” to be “undue”, will require predictive opinions on many matters which can only be characterised as “speculative” in nature. The legislation itself requires speculation about the future of the applicant’s health costs if he is given the visa, and of hardships to himself and others if he is refused the visa. The Court on judicial review should, in these circumstances, be slow to draw a line where any relevant speculation becomes impermissible or to set a minimum evidentiary foundation for such speculation. If the topic of the speculation cannot itself be shown to be legally irrelevant, a decision‑maker’s giving weight to the speculation could only give rise to jurisdictional error if it met the demanding tests of “unreasonableness”, for example, by being “irrational, illogical and not based on findings or inferences of fact supported by logical grounds” (see Minister for Immigration & Multicultural & Indigenous Affairs v SGLB (2004) 207 ALR 12 at [38], and Eshetu (supra) at [40]‑[44], [101], [124]‑[127], [145]‑[147], [159], [183]‑[188]).
In the present case, counsel for the applicant ultimately did not contend that a future possibility of the applicant moving to a liberal country in the EU was incapable of being a permissible consideration. His attack was on the basis that there was lacking a legally sufficient factual foundation for the Tribunal to speculate upon the basis of a possibility that Cyprus might “reunify in the near future”. As I understood his submissions, they therefore fell more into the category of jurisdictional error by reason of reliance on factual findings which were “unreasonable” or “not open” or “unsupported by any evidence”, rather than findings which addressed “irrelevant considerations”. He also, without seeking to amend the application, ventured into the territory of procedural unfairness, with a submission that the Tribunal’s opinions were based on “news reports not brought to the attention of the applicant or his adviser”.
However, in my opinion these submissions fail because they were unable to establish, on the evidence before me, that the Tribunal had no information upon which it could find that there was a “possibility” of reunification. Nor is there evidence led by the applicant or found in the Court Book filed by the respondents, which establishes that the Tribunal failed to afford procedural fairness in relation to this issue. Indeed, in my opinion, the Tribunal’s reasons suggest that there may have been such information, and that the issue may have been sufficiently canvassed with the applicant and his solicitor at the hearing.
The Tribunal said, when describing the hearing:
36.The Tribunal expressed concern that a significant theme in the submission put forward in support of the health waiver was that life was difficult in TRNC, it was a closed, conservative Islamic society, and it would not be feasible for the visa applicant to live in that country with or without his partner. The Tribunal’s concern was that it appeared at the time of the hearing that the two Cypriot Republics were on the brink of reunification and that the prospect of joining the European Union on 1 May 2004 was acting as an added incentive for both sides to settle their differences. If reunification and accession to the Treaty of Rome were to occur, then the visa applicant and the nominator would immediately become nationals of an EU member country and would be free to travel and settle wherever they wished within the Union. Whatever claims they might make as to hardship would surely be much diminished by such a development. Further, the fact that the area now covered by TRNC would be in effect entering Western Europe would surely mean that the situation for homosexuals, whatever it might be at present, would surely improve? Mr Riches [the applicant’s solicitor] stated that it was by no means clear that the Cyprus problem was about to be resolved, and that even if this were to happen, why should this couple have to settle in London or Paris? Mr Riches handed to the Tribunal in the hearing some 17 pages of material downloaded from the internet. These were news items from the period 14 February 2004 until 16 February 2004. They focussed on the efforts of the United Nations to broker a deal which would lead to reunification of the island. The Turkish Government appears hostile to EU involvement. The leader of TRNC does not wish his people to be worse off in a united Cyprus. It is not clear from this material that renunciation shall proceed on or before 1 May 2004, despite more favourable impressions that the Tribunal has had from other news reports (not contained on the file).
The “17 pages” given to the Tribunal by the applicant’s solicitors are reproduced in the Court Book, but the “other news reports” consulted by the Tribunal are not reproduced nor presented in evidence to the Court by either party. In this situation, I decline to find that the Tribunal had no information upon which it could base its expressed opinion about possible reunification. I was not taken to anything in the 17 pages which, in my opinion, incontrovertibly excluded that possibility.
In relation to procedural fairness, the Tribunal’s account of the hearing is not a complete nor verbatim account. In the absence of a transcript I decline to make findings that the applicant was not sufficiently put on notice of the gist of the information which the Tribunal ultimately relied upon. Since it was not “specifically about the applicant”, he had no entitlement to be invited to give written comments (see s.424A(3)(a) of the Migration Act).
For the above reasons, I consider that this ground fails.

The TRNC criminal code (ground 3 in the application).

Counsel for the applicant submitted that the Tribunal’s reasoning in its paragraph [56] (extracted by me at [20] above) also revealed a second jurisdictional error. This was that the Tribunal failed to consider an important “factor” preventing the applicant living with the nominator in TRNC. This was that the TRNC criminal code contained “offences against nature” which rendered homosexual acts illegal in TRNC. It was argued that this was a contention which had been clearly put to the Tribunal, and which therefore was required to be taken into account by it (citing Amarasekera & Anor v Minister for Immigration [2005] FMCA 1500 at [30]‑[33]). Counsel submitted that I should infer from the absence of any discussion of this factor by the Tribunal in [56] that it was overlooked (c.f. Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [10], [35], [69], [75]).
However, in my opinion, it is clear from the Tribunal’s earlier recitation of the history of the matter and of the material on the file that it was fully aware of the applicant’s claims in relation to the criminal code. The claim was first made by the applicant’s solicitor in a lengthy submission presented to the delegate. The Tribunal in its reasons identified the making of the claim and the supporting documents:
27.…
ØIt was contended in the submission that the visa applicant satisfied all criteria for the grant of the visa sought other than the health criterion. It was also contended that granting the visa sought would be unlikely to result in undue cost to the Australian community. Various definitions of ‘undue’ were noted. In terms of compelling and compassionate circumstances, it was stated that it is both legally and practically impossible for the couple to return to TRNC and to live there as a couple. It was stated that homosexuality is a crime there, and breaches of that particular law are prosecuted. It was also stated that TRNC is a deeply conservative Muslim society, which would add further to the difficulties the couple would face. It was also stated that because TRNC remains unrecognised by most of the rest of the world, access to medication is difficult and expensive. It was stated there is no public or subsidised health care in TRNC. It was also noted that the visa applicant is an educated man with a degree and that he was already working in Australia. He was currently healthy and the report from Dr Julian Gold stated he has had an excellent response to antiretroviral therapy. It was also stated that the relationship had been a very long one, lasting for more than half of the couple’s lives.
ØA statutory declaration of the visa applicant dated 26 February 2002. He discussed how he coped when he discovered he was HIV positive and how his relationship with the nominator developed further after receipt of this news. He states that ‘a return to Cyprus would mean I would have to encounter numerous difficulties in the areas of health, family and community’. He states his family’s culture is Muslim, and they could not accept his gay life. He states Cyprus is a small country and as a consequence he would have to hide his sexuality and his HIV status. He states homosexuality is illegal and as such he would be vulnerable to police harassment. The health system in TRNC is not good and as a consequence he will not have access to the treatment he has in Australia. Further, if he cannot obtain a job then he will not be able to afford whatever treatment might be available.
Ø…
ØTranslated extract from the TRNC Criminal Code. Article 171 states that having sexual intercourse with a person ‘against nature’ is a crime punishable by up to five years imprisonment. Article 172 states committing an article 171 offence with violence is punishable by up to 14 years in jail. Article 173 states that a person attempting to commit an article 171 offence shall be punished by up to three years imprisonment. (emphasis added)
The Tribunal also identified how the delegate had dealt with the claim concerning illegality:
28.…
ØThe nominator and the visa applicant lived together as a couple in TRNC between 1994 and 1996 despite the claims that it is legally and practically impossible to do so. While it was possible they may have faced some difficulties upon return, as a compassionate circumstance this did not outweigh the costs to the Australian community of granting the visa sought;
The Tribunal also noted a submission made to it by the applicant’s solicitors on 18 November 2003, which referred to their difficulty in finding evidence of police harassment and arrests. The submission said:
There are direct consequences in this situation for the Applicant and his Sponsor and it is submitted they comprise compelling factors preventing the couple returning to TRNC to live if the visa is refused. Both the Applicant and the Sponsor assert that homosexuality is viewed as a crime in Northern Cyprus and that police harassment and arrests are common place. Despite considerable efforts, it has proved impossible to confirm this assertion by documentary proof. The writer’s instructions are that during a recent private visit to Turkey Ms Derya Han from the Multicultural HIV/AIDS Service made strenuous efforts to investigate the policies and laws of the TRNC in relation to both prevention and treatment of HIV and in relation to discrimination, official or otherwise, against homosexuals. This information proved impossible to gather because, in Ms Han’s words, people “simply didn’t want to talk about that”. There appears to be no information publicly available on these matters in the Internet from sources such as Amnesty International or the UN; the reason is that TRNC is so isolated by the international community that very little, other than tourist destinations, is made available or reported. All the material about Cyprus on the web concerns the UN and internationally recognised Republic of Cyprus which the TRNC refer to as the “Greek Cypriots”. (For example, a “UNAIDS” country report on Cyprus is available that paints quite a favourable picture, and is attached. However it is noted that in all respects this refers to and describes the position on the island other than the area claimed by Turkish Cypriots and Turkey to be TRNC).
It is submitted that to require the Applicant and/or his Sponsor to return to TRNC would be grossly lacking in compassion by the Australian community if it was to occur. TRNC is a small, isolated, shunned community in which the prevailing attitude is that of a “siege mentality” and resentful of the stance that the world community, including Australia, has taken. It has very limited public resources or community facilities: although it has proved impossible to document this, it is submitted that anti‑retroviral medications required by the Applicant to maintain his health are not publicly available in TRNC, other than those with the financial means to import them for their own private use. The Applicant’s and Sponsor’s declarations, and those of the Sponsor’s sister have testified to the narrow, inward looking and conservative Islamic culture that prevails. It is submitted that the Applicant and Sponsor would face persecution if they attempted to live there as a couple, but even if this cannot be conclusively demonstrated, it is submitted that there is strong evidence for the Tribunal to find that they would both face at the very least, social isolation, humiliation and possibly even violence from their families and the wider community if they were forced to return to live there. (emphasis added)
The Tribunal then referred to its own investigations concerning the claim of illegality, and how they were raised at the hearing. A document found by the Tribunal was not tendered in evidence before me. The Tribunal said:
34.The Tribunal obtained a brief document from the Internet concerning the legality or otherwise of homosexuality in Cyprus. This was handed to the representative in the hearing. This document stated in part that homosexual acts between consenting adults were decriminalised on 21 May 1998 in the Republic of Cyprus (i.e. Greek Cyprus) although there are still provisions in the criminal law which target gay men. In relation to TRNC the author of the document states that nothing had been found in relation to legality or otherwise but that in Turkey, homosexuality is legal in the sense that it is not criminalised, and that the age of consent is 18.
In this context, I am not persuaded to draw the inference that the issue was overlooked when the Tribunal arrived at its ultimate conclusions. In my opinion, the Tribunal shows that it was fully aware that one of the factors which the applicant claimed rendered it “not feasible” (to use the Tribunal’s description) for him and the nominator to live together as a gay couple in TRNC was the presence of the criminal offences in the criminal code. I am not persuaded that it overlooked this when arriving at the conclusion about “feasibility” which it gave in paragraph [56]. I consider that, as did the delegate, the Tribunal more probably concluded that any illegality of their conduct had not prevented them from living together in the past, and discounted this claim for that reason. I find that its reason for rejecting the claim is implicit in its general conclusion that all the applicant’s claims about “feasibility” were “significantly undermined” by the applicant’s past conduct.
I therefore reject this ground.

The circumstances of the nominator’s Australian sister (ground 1 in the application).

Submissions in support of this ground examined the Tribunal’s reasoning in relation to its factor (x):
Humanitarian or compassionate factors
59.As well as the claim that it is not possible for a gay couple to live in TRNC, it was stated in the hearing that it is necessary for the nominator to be in Australia to look after his sister. The Tribunal does not consider this to be a particularly significant factor because the nominator presently lives a considerable distance away from his sister, and he has a full‑time job. His sister has one daughter who is a welfare worker and another who is a teacher. The Tribunal considers that to the extent the nominator’s sister requires substantial assistance due to her medical conditions, the nominator is not in a position to provide such assistance and the nominator’s sister would be able to obtain assistance from either her own children or from welfare and related services in Western Sydney.
The ground as framed in the application, contends that this reveals that the Tribunal “took into account an irrelevant consideration, namely the circumstances in which the Applicant’s nominator obtained his Australian visa and subsequently Australian citizenship, not being the immigration history of the applicant or nominator”.
A somewhat different contention was made by the applicant’s counsel in his written submissions. This accepted the relevance of the topic which was addressed by the Tribunal, but argued that the Tribunal’s assessment of the factor was flawed because it failed to take into account evidence “of regular visits and regular communications between the nominator and his sister and the ongoing importance to her (and for that matter the nominator and the applicant) which could not be discounted so casually. It must be remembered that the nominator received a visa to remain in Australia precisely because of the ongoing care and support which he provided to his sister and her family”. (emphasis in original).
However, the Tribunal showed in its recitation of the background to the matter that it undoubtedly was fully aware of the basis upon which the applicant’s nominator obtained permanent residence in Australia. Indeed, the ground as originally framed in the application is so premised. I consider that counsel’s arguments attacking the Tribunal’s reasoning in relation to the circumstances of the nominator’s sister did no more than criticise the factual and discretionary assessments performed by the Tribunal in relation to those circumstances. I am not persuaded that the Tribunal failed to take into account anything which it was bound to consider.

The longevity of the relationship (not raised in the application).

The applicant’s counsel’s written and oral submissions raised a fourth ground of review, which argued that the Tribunal erred when assessing this element in the applicant’s claims. The Tribunal referred to it at the conclusion of its discussion of the factors:
Other issues
60.The Tribunal notes it is claimed that the relationship has been on foot since 1979 and that it has been submitted that the longevity of the relationship ought to be considered a special factor warranting the grant of the visa. The Tribunal remains concerned that the nominator in effect abandoned the visa applicant in TRNC for several years when he came to Australia.
61.Weighing up the above factors and taking into account the evidence contained on the files and given at the hearing, the Tribunal is not satisfied that the granting of the visa sought would be unlikely to result in an undue cost to the Australian community. This finding determines the outcome of the review application.
Counsel argued that the Tribunal’s implicit diminishing of the weight which it gave to this factor was based on “pure impression contradicted by the evidence”, and therefore revealed the taking into account of an irrelevant consideration.
However, I accept the submission of counsel for the Minister, that the Tribunal’s reference to the substantial period of separation before the applicant resumed his relationship with the nominator in Australia in 1999 was “a clearly relevant consideration; the weight to be attached to it was a matter for the Tribunal”. I am not persuaded that the Tribunal’s discussion of this topic reveals any jurisdictional error.
For all the above reasons, I am unable to find jurisdictional error affecting the Tribunal’s decision. It is therefore a privative clause decision within s.474(1) of the Migration Act, and I must dismiss the application.

I certify that the preceding forty‑eight (48) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 29 March 2006