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MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for reasons of membership to a particular social group - whether the persecution can be categorised as `serious' in accordance with Convention requirements - whether the applicant could gain effective protection from country of nationality - whether the Tribunal denied the applicant procedural fairness by failing to take into account findings of other Tribunals differently constituted.

SZABC v Minister for Immigration [2003] FMCA 156 (17 April 2003)

SZABC v Minister for Immigration [2003] FMCA 156 (17 April 2003)
Last Updated: 2 May 2003

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZABC v MINISTER FOR IMMIGRATION
[2003] FMCA 156



MIGRATION - Review of decision of the Refugee Review Tribunal - application for protection visa - whether the applicant has a well-founded fear of persecution for reasons of membership to a particular social group - whether the persecution can be categorised as `serious' in accordance with Convention requirements - whether the applicant could gain effective protection from country of nationality - whether the Tribunal denied the applicant procedural fairness by failing to take into account findings of other Tribunals differently constituted.



Judiciary Act 1903 (Cth), s.39B

Soboleva v Minister for Immigration [2001] FCA 528

NABW v Minister of Immigration [2002] FCA 464

Thiyagarajah v Minister for Immigration (1997) 73 FCR 176

Minister for Immigration v Prathapan (1998) 86 FCR 95

Applicant:
SZABC



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 1063 of 2002



Delivered on:


17 April 2003



Delivered at:


Sydney



Hearing date:


17 April 2003



Judgment of:


Raphael FM



REPRESENTATION

For the Applicant:


Self Represented



Counsel for the Respondent:


Mr S Lloyd



Solicitors for the Respondent:


Clayton Utz



ORDERS

(1) Application dismissed.

(2) Applicant to pay the respondent's costs assessed in the sum of $4,250.00 pursuant to Part 21 Rule 21.02(2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 1063 of 2002

SZABC


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant in this matter is a Russian citizen who arrived in Australia on 11 March 2000. On 7 April 2000 he lodged an application for a protection (Class XA) visa with the Department of Immigration & Multicultural & Indigenous Affairs. On 28 April 2000 a delegate for the Minister refused to grant a protection visa and the applicant sought review of that decision on 30 May 2000. Two years later, on

11 September 2002, after interviewing the applicant, the Refugee Review Tribunal made its decision. It handed the decision down on 2 October 2002.

2. The Tribunal affirmed the original decision of the delegate. The applicant now seeks review of that decision. In his application filed on 28 October 2002 he says:

"The Refugee Review Tribunal decision should be set aside."

In his affidavit in support he states:

"The Tribunal's approach was subjective towards the current situation regarding treatment of homosexuals in Russia. Not all available country information on Russia was used. Some important information was deliberately overlooked by the Tribunal."

3. In accordance with the usual orders, the applicant was required to file and serve an amended application and an affidavit setting out his grounds of objection to the Tribunal's decision but no such documents eventuated.

4. The applicant was born in 1973 in the Ukraine. He is now a Russian citizen and travelled to this country on a Russian passport. He told the Tribunal that his problems began in 1991 when he was doing his military service. He claims to be a homosexual. He claims that he received humiliating treatment during the course of his national service. He was caught on two occasions trying to escape and punished.

5. When the applicant left the army he commenced work as a driver. At first he had no difficulties but later when his workmates discovered his sexual orientation things began to go wrong. His workmates teased and humiliated him. His situation was no better at home. His neighbours insulted him on the street. They wrote offensive graffiti on his door and set it alight. He claims to have been beaten several times and treated for concussion.

6. The applicant argues that the treatment of homosexuals in Russia amounts to systemic persecution. He says that he was beaten up several times. He said that some of his beatings were administered by skinheads or homophobic thugs. He claims to have needed medical attention about five times. The applicant did attempt to report some of these incidents to the police but he claims that there was no interest expressed by them. He even went to lodge a complaint against the police at the Public Prosecutors Office in 1997 but was told that the affair was a police matter.

7. The applicant pointed out to the Tribunal that in recent times members of the Duma have sought to recriminalise homosexuality which had been decriminalised in 1993. The Tribunal discussed these matters with the applicant and made reference to certain country information which it had obtained about the treatment of homosexuals in Russia. This information indicated that there was a fairly active gay scene in Moscow and St Petersburg. It indicated that discriminatory behaviour had decreased and that complaints of discrimination were now being followed up. The applicant pointed out to the Tribunal that these instances may have involved persons of high standing or considerable wealth. The tolerance exhibited did not extend down to people of his income or social class.

8. In its findings and reasons the Tribunal accepted that the applicant was a homosexual and that homosexuals in Russia constitute a particular social group for the purposes of the Convention. The Tribunal accepted that homosexuals are recognised within Russian society as set apart from the rest of the community. The Tribunal indicated that it was prepared to accept that the applicant was teased and insulted by neighbours and workmates and that he was harassed by fellow serviceman whilst doing national service, but it came to the view that this behaviour was not serious enough to constitute persecution under the Convention.

9. The Tribunal did not accept the applicant's evidence of the beatings nor a later claim by the applicant that his apartment had been ransacked and his documents had been stolen. The Tribunal had asked the applicant to produce certain evidence he claimed that he had. When this was not forthcoming the excuse of the ransacking of the apartment was made. The Tribunal stated at (CB 79):

"I note that the primary application was submitted on 7 April 2000, some two years after the ransacking was claimed to have occurred. I am unable to accept that the first adviser would have knowingly jeopardised his client's case by referring to important supporting documents but failing to mention that they had been stolen and therefore would not be forthcoming. I therefore conclude that no such documents ever existed but were an invention of the applicants. I am unable to accept that the applicant was ever hospitalised or that he required medical attention for beatings. On the basis of my adverse credibility finding, I am unable to be satisfied that he was beaten up 30 to 40 times or indeed at all. Also on the basis of this credibility finding, I do not accept as genuine the assertion by the applicant's close friend in his statement that he was often beaten, often took medical advice and was undergoing psychological treatment."

10. The Tribunal came to the view that such harassment as the applicant claimed to have suffered did not constitute persecution. It also decided that the situation in Russia was not such that it believed there was a real chance that the applicant would suffer harm amounting to persecution for reasons of his membership of a particular social group, being homosexuals in Russia.

11. The applicant submitted to me that the Tribunal had made a subjective decision. He said that it did not avail itself of all the information which it had at the time. He then referred to the fact that similar cases have been heard by other Tribunals and different decisions had been reached. He claimed that the Tribunal was acting unprofessionally by not coming to the same conclusions as Tribunals differently constituted had come to.

12. The submission concerning the Tribunal's failure to avail itself of all the country information available cannot be sustained. The applicant has not provided any other country information which refutes that put forward by the Tribunal. The applicant would have had an opportunity to have done that either at the tribunal hearing or after it. The applicant was represented by a migration agent at the Tribunal hearing. The Tribunal put to the applicant the country information which it did have. Whilst the applicant did not agree with it all, there was no suggestion from him reported in the reasons for decision that he was aware of opposing information.

13. The argument that the Tribunal failed to take into account findings of other Tribunals differently constituted has been considered by the Federal Court in a number of cases. In Soboleva v Minister for Immigration [2001] FCA 528 a decision of Moore J, His Honour said at [26]:

"Where an earlier decision is so factually similar and temporally proximate to the circumstances of the application before the Tribunal and the earlier decision has been referred to and relied on by a party but not considered and referred to by the Tribunal, it may arguably give rise to an error reviewable in this Court. That arguably is the position not because the Tribunal should, prima facie, follow earlier decisions but because an earlier decision of this type might be viewed as a vehicle used by a party to raise material questions of fact about which the Tribunal should, as required by s430, make findings and set out the evidence in support."

14. Moore J went on to find that there was no requirement in Soboleva to follow a previous decision. Soboleva was approved by Sackville J in NABW v Minister of Immigration [2002] FCA 464. Sackville J said that the passage from Soboleva which I have quoted put an applicant's case at its very highest. In the instant case I have not been shown a copy of any decision of the Tribunal which is contrary to the decision which the Tribunal came to. The tribunal was, likewise, not provided with such authority and thus the condition precedent upon which some possibility of relief could be found was not present. I asked the applicant today whether he had such decisions and he told me that he did not. He said that he was in touch with other people and he knew of them.

15. The applicant did not otherwise allege any error of law. He repeated to me the concern which he had that the Russian Duma was considering recriminalising homosexual activity. This is a matter that was dealt with by the Tribunal at [CB 76]. The Tribunal noted that the articles referring to this matter denounced the members of parliament promoting the bill as senseless and ridiculous and there was no indication that a change in the law was likely to occur.

16. The applicant also raised the fact that persons like himself did not get any protection from the police. But the Tribunal dealt with that as well. The Tribunal found that the applicant was able to access effective protection, although it could not exclude the possibility of the odd attack. The Tribunal pointed out to the applicant that these occurred even in Australia. The Tribunal pointed out to the applicant that the test under Article 1A (2) of the Convention is two-fold. It is not just whether there is a well-founded fear but also whether the country of nationality is unable or unwilling to provide protection against persecution (see Thiyagarajah v Minister for Immigration (1997) 73 FCR 176 and Minister for Immigration v Prathapan (1998) 86 FCR 95).

17. I am unable to find that the Tribunal has fallen into the type of procedural error which would allow the applicant to obtain relief under s.39B of the Judiciary Act 1903 (Cth) and therefore I must dismiss the application, which I do.

18. I order that the applicant pay the respondent's costs which I assess in the sum of $4,250 pursuant to Part 21, Rule 21.02 (2)(a) of the Federal Magistrates Court Rules.


I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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