FEDERAL COURT OF AUSTRALIA

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

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.

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 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

4    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.

5    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.

6    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.

7    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.

8    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.

9    Those conclusions were sufficient to defeat the appellants’ claims for a protection visa. However, the RRT also concluded that the appellants had a right to enter and reside temporarily in any EU country, including the United Kingdom.

10    Section 36(3) of the Migration Act 1958 (Cth) (“Migration Act”) provides:

36    Protection visas

    …

Protection obligations

(3)    Australia is taken not to have protection obligations in respect of a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national. …

11    The RRT said that the appellants’ right to enter and reside in the United Kingdom (at least temporarily) was a “legally enforceable” right. Following the decision of this Court in Minister for Immigration, Multicultural Affairs and Citizenship v SZRHU [2013] FCAFC 91, it is not necessary that the right be found to be a legally enforceable one, but that does not detract from the effect of the conclusion of the RRT about this matter. As a consequence of its findings, the RRT took the view that s 36(3) of the Migration Act had the effect that Australia did not owe protection obligations to the appellants. For that additional reason, therefore, the RRT concluded that the appellants were not entitled to protection visas.

The decision of the Federal Circuit Court of Australia

12    The appellants brought an application to the Federal Magistrates Court of Australia (now the Federal Circuit Court of Australia) (“the FCCA”) for judicial review of the second decision of the RRT. In a judgment given on 11 July 2013, the FCCA dismissed the application for judicial review (SZQRM & Ors v Minister for Immigration & Anor [2013] FCCA 772). The grounds for the application for judicial review proposed that:

    the RRT had failed to give sufficient attention to the fact that persecution would be visited upon the first and second appellants because of their attitudes and beliefs, and not just their sexual conduct;

    the RRT failed to consider whether their change of behaviour occurred as a consequence of their fear of persecution;

    in finding that the appellants could relocate to another part of Lithuania, the RRT had failed to take into account the very small size of Lithuania; and

    it was not reasonably practicable and possible for the appellants to reside in the United Kingdom.

13    The success of the appellants’ application to the FCCA for judicial review depended upon establishing that the RRT had, in its second decision, made (or proceeded upon) a jurisdictional error. The FCCA pointed out in its judgment that the decision of the RRT disclosed that it understood that an element in the appellants’ claims concerned their strongly held convictions and the public advocacy of those convictions. The FCCA held that it was incorrect, therefore, to contend that the RRT had failed to consider this aspect of the appellants’ claims. The FCCA concluded that the other challenges to the conclusion of the RRT, that the appellants did not have a well-founded fear of persecution in Lithuania, concerned the merits of the decision of the RRT rather than raising any jurisdictional issue for consideration.

14    As to the conclusions of the RRT concerning the operation of s 36(3) of the Migration Act, the FCCA, in a detailed and reasoned analysis, concluded that the appellants did have, as the RRT had found, a legally enforceable right to reside in the United Kingdom. As I pointed out earlier, it is not necessary that the right to enter and reside in the United Kingdom be a legally enforceable one. However, that strengthens, rather than detracts from, the conclusions of the RRT which were upheld by the FCCA.

The appeal to this Court

15    On 31 July 2013, the appellants appealed to this Court from the judgment of the FCCA. The grounds of appeal were stated as follows:

1.    The Tribunal concluded we were not entitled to a protection visa because we would not, on return to Lithuania, engage in homosexual activity as the “applicant husband and wife have not engaged in homosexual activity for some two years. The court should have concluded the Tribunal had failed to consider our key claim that “it was not just about the sex, we wanted to change society’s values” and the intolerance and hatred that persist and the fear of persecution that followed resulted from that attitude and belief.

2.    The court should have concluded the Tribunal had failed to properly consider and determine whether the right to stay for at least three months was consistent with s. 36 of the Migration Act.

3.    The court should have concluded that section 36(3) of the Migration Act did not apply to us because (given our exceptional circumstances) we had neither the “right to reside’ in Ireland or UK nor the right to obtain effective protection in these countries.

    (emphasis in original)

16    The first appellant filed articulate written submissions in support of the appeal which, in some respects, went beyond the grounds of appeal although not beyond the matters considered by the FCCA.

17    At the hearing of the appeal, the first appellant made some brief oral submissions. They were to the effect that the RRT had ignored the claims of the first and second appellants that they would be persecuted for the expression of the views about sexuality, as well as their personal expression of those views by their earlier conduct. He explained that he was the leader of a group which positively expressed opinions about those matters. The second matter raised orally by the first appellant was the contention that the RRT had misapplied s 36(3) of the Migration Act, although no elaboration of that contention was offered.

18    It no doubt seems unsatisfactory to the appellants that, after they succeeded in challenging the remaining aspect of the decision of the RRT given on 18 August 2011 which decided they were not entitled to protection visas, the earlier acceptance by the RRT that they feared persecution in Lithuania has been replaced by a finding that they do not have a well-founded fear of persecution. However, those assessments are matters for the RRT. As I pointed out earlier, when the matter was returned to the RRT for further attention the RRT was not bound by the earlier findings. Indeed, the RRT was bound to make a fresh decision about the first appellant’s application for a protection visa, taking into account all the material which was then before it.

19    I agree with the assessment made by the FCCA that the RRT plainly understood and addressed both aspects of the claims to fear persecution, including persecution for expression of political opinion. For example, the RRT said (referring to the earlier hearing before the RRT):

39.    The applicants claimed that if they return to Lithuania they will be targeted again by right wing and conservative members of Lithuanian society because of their views publicly espoused in blogs throughout 2010. …

and (referring to the further hearing):

53.    …[The first appellant] said, in any case, it was not just about the sex, they wanted to change society’s values. The same level of intolerance and hatred for this and their lifestyle still persists.

and:

65.    …[The authorities] know that the applicant husband was the leader of a group of people who dared to challenge state values. …

20    In its second decision given on 30 October 2012, the RRT concluded:

80.    Having carefully considered the claims and evidence presented before the previous Tribunal, the oral evidence given at the hearing held by me, and the written submissions provided after the hearing, I find that the applicants do not have a well-founded fear of persecution should they return to Lithuania.

and

81.    …[I] find that the applicant husband and the applicant wife would not engage in homosexual activity or in publicly espousing related issues if they return to Lithuania. …

21    Those findings are ones about the merits of the appellants’ claims. They address both aspects of those claims. There is no apparent jurisdictional error involved. Certainly, none has been identified. Those findings are sufficient to defeat the application for protection visas made by the first appellant.

22    In any event, in my respectful view, the right of the appellants as citizens of a country in the EU to enter and reside in the United Kingdom (another EU country) plainly engages the operation of s 36(3) of the Migration Act. As none of the qualifying factors identified in s 36(4) or s 36(5) have been demonstrated to exist, the operation of s 36(3) was sufficient also to defeat the appellants’ claims for a protection visa.

Conclusion

23    No jurisdictional error in the conclusions of the RRT, or any relevant error in the judgment of the FCCA, has been shown and the present appeal must therefore be dismissed. There is no reason why the usual order as to costs should not be made.

Associate:

Dated:    5 December 2013