SZAZV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 644

FEDERAL COURT OF AUSTRALIA

SZAZV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 644 SZAZV v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS NSD 1832 OF 2004 LINDGREN J 23 MAY 2005 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD 1832 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZAZV

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE OF ORDER: 23 MAY 2005

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The appeal be dismissed. 2. The appellant pay the respondent's costs. 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 1832 OF 2004

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT

BETWEEN: SZAZV

APPELLANT

AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: LINDGREN J

DATE: 23 MAY 2005

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia ('FMCA') given on 19 November 2004. Pursuant to s 25(1A) of the Federal Court of Australia Act 1976 (Cth), the Chief Justice has determined that the appeal should be heard by a single judge. 2 The proceeding before the FMCA was an application for review of a decision of the Refugee Review Tribunal ('the Tribunal') made on 30 May 2003 and handed down on 25 June 2003. The Tribunal affirmed a decision of a delegate of the respondent Minister (respectively 'the Delegate' and 'the Minister') not to grant a protection visa to the appellant. 3 The appellant is a national of The Republic of Ukraine. He claimed to have a well‑founded fear of being persecuted for membership of a particular social group in Ukraine. In a statement which accompanied his application for a protection visa, he identified the particular social group as 'homosexuals'. The appellant referred to incidents in which he and his partner suffered abuse and physical violence from religious extremists, skinheads and Ukrainian ultra‑nationalists. He complained that it had been useless to complain to the police, who had in fact informed those responsible of the complaint with the result that he and his partner were beaten by them and warned never to complain again. 4 The appellant claimed that his partner was murdered and that their café in Stryy was destroyed. He said that following the funeral of his partner, he was beaten by skinheads and warned that he would be murdered as his partner had been, because the assailants would not tolerate homosexuals in Ukraine. Following this he decided to flee the country. 5 On 22 June 2001 the appellant was granted a Subclass 421 (Sport) visa in order to enter Australia to attend the World Veterans Athletic Championships in Brisbane. The visa permitted him to remain in Australia until 16 August 2001. Apparently he left Ukraine on 2 July 2001. He arrived in Australia on 4 July 2001. On 14 August 2001, the appellant applied for the protection visa, and the application was refused by the Delegate on 10 October 2001. 6 In his application for the protection visa, the appellant gave 'Stryy' as the place of his birth, as the place where he attended school from September 1975 to June 1985, as the place of issue of his passport on 14 July 1998, as his 'address' from October 1992 until he left Ukraine in July 2001, and as the place where he was owner‑manager of the 'Viterets' café from January 1995 until he left Ukraine in July 2001. However, according to the Tribunal's reasons for decision, in his application for the sports visa, he gave his address as Kiev. Kiev is the capital city of Ukraine, and is in the north of the country whereas Stryy is a much smaller city in the west. 7 The question of the appellant's place of residence in Ukraine came to assume some importance, because, in substance, his claim seems to have been that it was immaterial that homosexuals may not be persecuted in the capital, because they are persecuted in Stryy. 8 The appellant claimed before the Tribunal that he could not relocate to Kiev because he would need 'propiska'. (Apparently, a propiska is an official document which indicates the city, town or other place within Ukraine, where the holder is entitled to live.) He said that his religion was Greco-Catholic, that Kiev preferred Russian Orthodox, and that he would be persecuted in Kiev for his religion. He told the Tribunal that people from western Ukraine were discriminated against by Russians and eastern Ukrainians. He said that he was sure that he would be denied propiska and would not be able to afford to buy an apartment or a house in a large city, and could only live in a hostel subject to strict supervision. 9 The appellant explained to the Tribunal that his reference to 'Kiev' in his application for the sports visa was due to the fact that he had gone to Kiev as a visitor for a few days or weeks. When the Tribunal member ('the Member') showed the appellant a copy of his application for the sports visa which indicated that he lived in Kiev, he did not dispute its contents, but said that it was irrelevant to continue the discussion and that it was a 'moral injury' for him to do so. 10 The Member recorded that the appellant's adviser asserted that 'the documents in the [sports visa] application were fraudulent,' but the Member rejected the adviser's claim, apparently on the basis that the appellant himself, upon being shown the application, did not make the same claim [of fraudulent documents]. 11 The Tribunal was satisfied that homosexuals in Ukraine are a particular social group and had no reason to doubt that the appellant was a homosexual. However, the Tribunal concluded that the appellant had not fled persecution but had left Ukraine in order to attend a sporting event in Australia. Moreover, the Tribunal was 'not satisfied that homosexuals suffer persecution in Ukraine' (at 8). 12 The Member was of the view that the provision of a Stryy address was irrelevant to obtaining a sports visa, and, implicitly, accepted that the appellant had had no reason to state in the application for that visa that he lived in Kiev if he did not in fact live there. The Member also noted that the World Veterans Athletics Association accreditation for the Brisbane championships had indicated a Kiev address for the appellant. The point is that apparently the appellant had provided Kiev as his place of residence in Ukraine to the organisers of the Championships. The Member observed that question 13 on the form of application for the sports visa asking for the applicant's postal address was left blank, and this led the Member to conclude that the appellant had intended to convey that his postal address was the same as his home address (Kiev) which he had stated in his answer to question 12 on the form of application. The Member said: 'Therefore I am satisfied the [appellant] lived in Kiev.' (The Member accepted that the appellant was born in Stryy and was a western Ukrainian, but his place of residence at the time of leaving Ukraine in 2001 was a different matter.) 13 The Member noted that the appellant had not made claims of persecution elsewhere than in Stryy. Having found that the appellant had lived, not in Stryy but in Kiev, the Member said that 'therefore' he was not satisfied that the instances of persecution which the appellant claimed to have suffered in Stryy had happened at all. Those instances were that the appellant and his partner had owned a restaurant or café in Stryy; that he had been attacked and threatened in Stryy; that he had reported assaults to the Ukrainian police and not been protected by them; that he and his partner had suffered from government harassment while they were running the restaurant; and that he had had a partner who had been killed in Stryy. 14 The Member observed that the appellant had not provided documentary information in relation to his partner, or the partner's death or the joint ownership of the café. The Member noted that the Delegate had also mentioned in his reasons for refusing a protection visa the lack of documentary evidence provided by the appellant in support of his claims. The Member did not accept the appellant's explanation for not having produced documentary support, that he had not had an interview with the Department of Immigration and Multicultural and Indigenous Affairs (the 'Department'). 15 In relation to its conclusion that homosexuals do not suffer persecution in Ukraine (noted above at [11]), the Tribunal relied upon a substantial body of country information to the effect that homosexuality had been decriminalised in Ukraine since 1991 and that there had been a rapid growth in homosexual cultural and social activity, particularly in major centres such as Kiev. This finding would not necessarily meet the appellant's case if in fact he lived in Stryy, and it was not reasonable to expect him to relocate to Kiev. 16 The appellant's application to the FMCA did not identify any jurisdictional error. The application in the FMCA was accompanied and supported by an affidavit of the appellant. It traversed the merits of the Tribunal's decision. Raphael FM considered that the arguments advanced by the appellant before him were attempts to persuade him that the Tribunal had erred in the factual findings which it had made. However, his Honour was satisfied that the conclusions reached by the Member were available to the Member on the evidence and were not reached in jurisdictional error. 17 Before Raphael FM, as before this Court, the appellant contended that the Tribunal erred in failing to investigate further his claim to have resided in Stryy. His Honour, however, thought that this complaint had no prospect of success, and referred , in support, to Azzi v Minister for Immigration and Multicultural Affairs (2002) 120 FCR 48 per Allsop J at [111]-[113] and the cases cited therein; Applicant M17/2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003]FCA 1364 per North J at [29]; Minister for Immigration and Multicultural Affairs v Anthonypillai (2001) 106 FCR 426 per Heerey, Goldberg and Weinberg JJ at [86]; and Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 at [43] per Gummow and Hayne JJ, with whom Gleeson CJ agreed. Those authorities are generally to the effect that only rarely will the Tribunal err in law by not exercising its power under s 427(1)(d) of the Migration Act 1958 (Cth) to make an investigation. 18 In his Amended Notice of Appeal filed in this Court on 28 February 2005, the appellant again complained that the Tribunal should have asked him to produce documents establishing where he had resided in Ukraine, and should have investigated this issue further. In the Amended Notice of Appeal, the appellant states: '… the Tribunal member had never asked me to produce my 'propiska' which I say would have proved conclusively that I was resident in Stryy and was the owner of the café; and … the Tribunal did not ask me to prove that I was divorced.' 19 In support of his appeal, the appellant, who is not legally represented, referred to WAFP v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 319 ('WAFP'). In WAFP, a Full Court allowed an appeal from the FMCA on the basis that the Tribunal had committed a jurisdictional error by failing to have regard to important material, which was before it, going to a central consideration, namely, the legality of the appellant's departure from Sudan. The Tribunal had failed to refer to an interview of the appellant by an officer of the Department of Immigration and Multicultural Affairs, in which he had stated that he had had to cross the Sudanese border into Eritrea illegally. The Tribunal relied on the fact that the appellant had placed a cross in a box on his application for a protection visa indicating that he had left Sudan lawfully, and on the basis of that evidence, found that he had in fact left lawfully. The Full Court, however, said that the failure to refer to the interview and to take it into account in considering whether the appellant had departed Sudan illegally, amounted to an error of law, because it was a failure to have regard to relevant material, so fundamental that it went to jurisdiction. The Full Court cited Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [82]. 20 The present case is different from WAFP. There was not, so far as the evidence reveals, any evidence before the Tribunal which it failed to take into account showing that the appellant had in fact lived in Stryy, as he alleged. It is true that since arriving in Australia, the appellant stated in his application for the protection visa that he lived in Stryy, but the Member referred to this in his reasons, when he said of the appellant (at 9), 'he provided an address in Stryy in his protection visa application'. 21 The real complaint made by the appellant is not that the Tribunal failed to take into account any material that was before it, but that it should have made further enquiries. In particular, the appellant says that the Tribunal ought to have made further enquiries of the appellant himself and given him the opportunity to get documents for it establishing that he had lived in Stryy rather than in Kiev. (It is to be noted that down to this day, the appellant has not produced any such documents for the purpose of demonstrating the material that he would have placed before the Tribunal if it had done as he says it should have done.) The appellant knew that his place of residence in Ukraine was in issue, but did not seek an opportunity to provide documents to the Tribunal. His reaction upon being shown, at the Tribunal hearing, the reference to 'Kiev' in his application for the sports visa was noted earlier (at [9]). 22 It is also to be noted, as the Member recorded, that from the making of the application for the protection visa, it appears that the appellant was 'represented by … a registered migration agent, who [had] acted for him since [the] application was commenced.' The Member inferred that it was 'surprising therefore' that the appellant would not have some supporting documents. 23 In my opinion the Tribunal was not required, as a matter of law, whether by reason of natural justice requirements or otherwise, to seek from the appellant or any other person documentary evidence touching upon his place of residence in Ukraine before finding that that place was Kiev. 24 The learned Federal Magistrate correctly concluded that the Tribunal's decision was not infected by jurisdictional error. It was open on the evidence before it for the Tribunal to come to the conclusions it did, and it was not obliged to seek to become possessed of further evidence before it did so. Accordingly, the appeal should be dismissed with costs. 25 I note that the learned Federal Magistrate correctly observed, for the appellant's assistance, that if he does have documentary evidence which supports his claims to have lived and operated a café in Stryy, it may be possible for him to persuade the Minister to make a determination under s 48B of the Migration Act 1958 (Cth) ('the Act') that s 48A of the Act not apply to him. I certify that the preceding twenty‑five (25) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.