VWEF v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 304 (12 November 2004)

Last Updated: 17 November 2004

FEDERAL COURT OF AUSTRALIA

VWEF v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCAFC 304

VWEF V MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
V859 OF 2004





KIEFEL, NORTH and DOWNES JJ
12 NOVEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V859 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VWEF APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGES:	KIEFEL, NORTH and DOWNES JJ
DATE OF ORDER:	12 NOVEMBER 2004
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be dismissed.
2. The appellant pay the respondent’s costs on the appeal including reserved costs.














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	V859 OF 2004

ON APPEAL FROM A JUDGE OF THE FEDERAL COURT OF AUSTRALIA

BETWEEN:	VWEF APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGES:	KIEFEL, NORTH and DOWNES JJ
DATE:	12 NOVEMBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1 The appellant is a national of Lithuania, who arrived in Australia on 29 June 2002. On the day that his visa was to expire he lodged an application for a protection visa.

2 The appellant claimed to be a member of a particular social group, homosexuals, and had a well-founded fear of persecution if he were to return to Lithuania. He claimed of social isolation and of being beaten on a few occasions on account of his sexual preference. He was reluctant to go to the police. He said that there would still be discrimination in Lithuania and that the decriminalisation of homosexuality and legislative provisions to protect homosexuals from discrimination and incitement of hatred would not change the attitude of the people. The government could not protect him.

3 The Refugee Review Tribunal (‘the Tribunal’) noted the introduction of a criminal code in Lithuania in September 2000, which made it an offence to discriminate against a person because of their sexual orientation and an offence to deride or initiate discrimination or instigate hatred against a person because of their sexual orientation. Lithuania had also ratified the European Convention on Human Rights and most of the human rights treaties and international conventions on human rights, which had been incorporated as part of Lithuanian domestic law. Country information however suggested that there remained a degree of societal prejudice against sexual minorities in Lithuania.

4 The Tribunal did not accept that the harm the appellant feared constituted persecution within the meaning of the Convention, which required it be officially tolerated or uncontrollable by the authorities of the country of nationality. The issue was not whether the authorities could guarantee he would not suffer harm, but whether there were effective judicial and law enforcement agencies designed to protect nationals against the sort of harm said to be feared. The country information indicated that it would be contrary to domestic law for the police to discriminate against homosexuals or to perpetrate violence against them, and that there were avenues for the appellant to assert his rights if a particular officer was unresponsive to a complaint. While the Tribunal understood the appellant’s desire to live in a country where attitudes to sexual orientation are more liberal, it was not satisfied that he had a well-founded fear of persecution within the meaning of the Convention.

5 The application before his Honour contained general grounds for judicial review, which lacked any particularity. The appellant, who appeared in person and with the assistance of an interpreter, was unable to advance any argument. His Honour considered the Tribunal’s reasons but he was unable to discern any jurisdictional error. It was, as his Honour said, a question of fact for the Tribunal whether the appellant had a well-founded fear of persecution in Lithuania. The Tribunal had asked itself the correct question, namely, whether Lithuanian domestic law provides him with an adequate means of redress against discrimination of the kind he feared, if it were to reach the level of persecution.

6 The appellant has not availed himself of the opportunity to put written submissions before the Court. We are unable to discern any error in his Honour’s approach.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Kiefel, North and Downes.

Associate:

Dated: 12 November 2004

For the Appellant:	No Appearance
Counsel for the Respondent:	Mr R Knowles
Solicitor for the Respondent:	Clayton Utz
Date of Hearing:	10 and 12 November 2004
Date of Judgment:	12 November 2004