Appellant S395-2002, S396-2002 v MIMIA
[2003] HCATrans 640
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S395 of 2002
B e t w e e n -
APPELLANT S395 OF 2002
Appellant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Office of the Registry
Sydney No S396 of 2002
B e t w e e n -
APPELLANT S396 OF 2002
Appellant
and
MINISTER AND IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 8 APRIL 2003, AT 10.19 AM
Copyright in the High Court of Australia
__________________
MR B. LEVET: May it please your Honours, I appear with my learned friend, MR P. de DASSEL, for the appellants. (instructed by Bharati Solicitors)
MR S.J. GAGELER, SC: If the Court pleases, in each matter I appear with MR S.B. LLOYD for the respondent Minister. (instructed by Australian Government Solicitor)
MR J.W.K. BURNSIDE, QC: If it please the Court, in each matter I appear with my learned friend, MS S.E. PRITCHARD. We seek leave to be heard as amicus curiae in the interests of Amnesty International Australia. (instructed by Allens Arthur Robinson)
GLEESON CJ: Now would be a convenient time to make that application.
MR BURNSIDE: If the Court please.
KIRBY J: You are seeking to intervene in support of the appellants?
MR BURNSIDE: We are.
KIRBY J: I think you say at the end of your written submissions that you have the consent or support of the appellants in that respect, is that correct?
MR BURNSIDE: That is so. As we understand it, the Minister does not oppose our intervention provided it is limited to written submissions.
GLEESON CJ: Is it an application to intervene or an application to appear amicus curiae?
MR BURNSIDE: An application to appear amicus curiae. If given that leave, we would seek first of all to rely on the written submissions which the Court has received, but in addition to develop one point in particular in oral submissions which has not been fully explored in the written submissions thus far filed.
GUMMOW J: What point is that?
MR BURNSIDE: That point, your Honour, focuses on this proposition, that the meaning of the words “discreet” and “discretion”, where used in various judgments of courts at various levels, differs enormously and thus the content of the obligation or assumption or expectation of discretion varies enormously from case to case and we would wish to develop the point that emerges from that fact. The Court, I take it, has seen the affidavits of Georgina Louise Perry in support of that.
GLEESON CJ: Yes, we have read that.
MR BURNSIDE: In our submission, your Honours, the question raised in these cases is an important question and it is desirable that this Court should have such assistance as we are able to give in addition to the assistance provided by the parties. We are able to approach the matter from the more remote or less involved position of amnesty, which is something of course that the appellants are unable to do; they have their own immediate interests to be concerned with.
We would wish to make a submission based on this, that because the meaning of “discreet” is so various, the consequence of the assumption of discretion in some cases will involve a complete denial of fundamental human rights, including the right to one’s own identity, and in less extreme cases will be a reflection of the circumstances which give rise to a fear.
Put shortly, it would be our submission that depending on the particular meaning of discretion in a particular case the requirement to be discreet, or the fact of having been discreet in the past, or the expectation of being discreet in the future is apt not to answer the question whether the person is likely to suffer persecution but to raise the question how extreme are the steps that they must take in order to avoid persecution.
HAYNE J: Was the proposition you are seeking to advance any more complex than it is necessary to pay close attention to the facts of the particular case?
MR BURNSIDE: With respect, your Honour, yes, it is more complex than that because the word “discreet” seems to be used in all the cases as if it had a fixed content.
McHUGH J: How long is it going to take you to develop this argument orally, Mr Burnside? It sounds as though it will take some time if you are going to go through these cases.
MR BURNSIDE: We do not propose to go through the cases except to identify in passing the content that has been given to the word in various cases. I should not have thought that we would need more than 20 minutes to expound the point. If the Court please.
GLEESON CJ: Thank you. Mr Levet.
MR LEVET: Your Honour, I am instructed that the appellants do not oppose that course of action.
GLEESON CJ: Thank you. Mr Gageler.
MR GAGELER: Your Honours, we do not object to leave being granted at all. As to the scope of leave, in our submission it ought be confined to the question of principle, if it arises, that question being whether a denial of freedom to express sexual preference can constitute persecution. It ought not extend to the identification of any specific error on the facts of this case on the part of the Tribunal. In particular, in that regard, paragraphs 41 to 47 and paragraphs 23 to 40 of our learned friend’s written submissions go well beyond anything sought to be raised on the facts of this case by the appellant.
As to the mode of appearance, in our submission, it ought to be limited to written submissions, the appellants being adequately represented and our learned friend’s written submissions for Amnesty International being fulsome.
KIRBY J: He only wants 20 minutes. We even give special leave litigants in person 20 minutes.
MR GAGELER: He wants 20 minutes to deal with an additional point, which comes down to saying, it all depends on the facts. If that is what he wants to say, that is by no means in issue, we accept that. One has to look at the facts of the individual case. If he wants to look at the word “discretion”, the word “discretion” is not a statutory term, it is not even a term of art ‑ ‑ ‑
KIRBY J: It seems to be used in a lot of the cases – almost all of them.
MR GAGELER: It is a term that appears from time to time in the cases. We are not concerned with an audit of all the cases where the word “discretion” has been used. We are concerned with the appeal in this case.
GUMMOW J: No, the problem is that those cases may be giving rise to some gloss on the Convention definition which really is not there. If it is not there, it should be expunged.
MR GAGELER: One does not need to trawl through the cases where a word has been used to determine that. If the Court pleases.
GLEESON CJ: Yes, thank you. We will adjourn for a short time to consider the course we will take in this matter.
AT 10.27 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.29 AM:
GLEESON CJ: The majority of the Court is of the view that the applicant should have leave to appear amicus curiae, but that such leave should be limited to the written submissions that have been filed and in those written submissions limited to the point of principle raised by the written submissions.
KIRBY J: That would not prevent, in my view, the applicant renewing the application later in the day if the development of the case so indicated.
GLEESON CJ: Yes, Mr Levet.
MR LEVET: Thank you, your Honour. Your Honours:
“Simple justice” is achieved when a complex body of law developed over a period of years is evenhandedly applied.
Those words are not mine. There were uttered 22 years ago in the United States Supreme Court by Justice Rehnquist in Federated Department Stores v Moitie. That sentence encapsulates what this case is about from the position of the appellants. They seek simple justice. There is a complex body of law that has developed in relation to refugee applicants, pursuant to convention, over a number of years.
The appellants seek that the body of law that has been developed be even‑handedly applied. The contention of the appellants is that there is a de facto requirement of discretion and that de facto requirement of discretion is applied only in respect of refugee claimants fearing persecution on the basis of their sexual orientation.
GLEESON CJ: Requirement by whom?
MR LEVET: It is in effect a requirement that has been adopted by the tribunals and the Federal Court in applying a test as to whether an individual applicant has a well‑founded fear of persecution. Your Honours, in the present case there have been findings of fact in the Tribunal which give rise to the particular basis of the appeal. There is a finding of fact that the appellants are homosexuals and that they have lived together since 1994.
GLEESON CJ: Mr Levet, can I ask you about technically a matter of fact that I was not able to work out from the reasoning of the Tribunal. If you look at page 142 lines 1 and 2, that is a reference to information that came from a lawyer to the effect that he had never heard of anyone who had been prosecuted for or convicted of homosexuality. I do not imagine, although I do not know, that there is a crime of homosexuality, but what, if any, provisions of the criminal law of Bangladesh bear upon the conduct of your clients?
MR LEVET: Your Honour, I am not able to ‑ ‑ ‑
GLEESON CJ: That appears to be a reference to something but I do not know exactly what it is.
HAYNE J: It is a reference, is it not, to what appears at page 113, as appears from the last line on page 141 referring to the ILGA world legal survey of 1999? If you go to 113, that seems to be the document. I may be quite wrong.
GUMMOW J: Section 377 of the Penal Code.
MR LEVET: I am indebted to your Honour.
GLEESON CJ: That is it, is it?
MR LEVET: Yes, your Honour.
GLEESON CJ: Section 377 of the Penal Code?
MR LEVET: Yes, your Honour.
GLEESON CJ: Thank you.
MR LEVET: Your Honour, the fear of persecution is not founded fairly and squarely on an apprehension of prosecution, albeit it is noted that certainly in Tasmania prior to Croome the activity was contrary to the Criminal Code of that State. Your Honours, the apprehension of persecution is to be found from the findings in the appeal book page 143, halfway down the page:
From this evidence it is clear that homosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh. To attempt to do so would mean to face problems ranging from being disowned by one’s family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police.
It is the contention of the appellants that those two findings of fact having being made, that is to say firstly, that they were members of a social group that is constituted by homosexuals in Bangladesh, and secondly, that it is not possible to live openly as a homosexual in Bangladesh with a range of adverse consequences being attracted by such open behaviour, including serious forms of harm such as being bashed by the police are ‑ ‑ ‑
GLEESON CJ: Including the possibility of imprisonment for life.
MR LEVET: Indeed, yes.
KIRBY J: But what is the social group that really applies to this case? Is it homosexuals generally as a class or is it a more refined group of homosexuals who are living in a committed relationship with each other? It may be important, as this Court has said in a number of cases, to define with some precision the social group that you are referring to and it presents a quandary to applicants, do they express it narrowly or do they express it broadly?
MR LEVET: Your Honour, it is a quandary. On the one hand there is a finding of fact in the Tribunal below that the appellants fall within a social group which is broadly defined as homosexuals.
GUMMOW J: You have to match the finding at 143 line 25 with page 156 line 40 and following. What do you say comes from reading those two portions together? Do you say there is some error that is revealed in the construction of the definition of that, with respect to the relevant class?
MR LEVET: Your Honour, in the second of those, that is at page 156, what is happening is an attempt to narrowly define homosexuals as being persons who have lived discreetly and who, it might be expected, will live discreetly. There is a suggestion that the subject of gossip and perhaps taunts of some neighbours who suspected that they were homosexuals - a suggestion that this does not constitute serious harm amounting to persecution under the definition. But that is not the finding that had earlier been made. The finding that had earlier been made was that were their identity to become known to the police that they would be subject to serious harm.
Your Honours, the basis on which they were disbelieved on a question of fact as to whether their identities were known was that firstly it was not believed that they would go to the police and report having been persecuted because the police would not protect them.
KIRBY J: Where is that finding?
MR LEVET: It is 156 approximately line 35:
From the evidence set out above it appears that homosexuals would probably be shunned by friends and family and perhaps even bashed by the police.
HAYNE J: I rather thought you were making the point at 155 lines 25 and following, but that is again unmistakable.
MR LEVET: I am indebted to your Honour.
KIRBY J: Which passage on 155?
HAYNE J: Page 155 at 25 and following.
MR LEVET: Yes, indeed, your Honour.
GLEESON CJ: If they had told the police, would section 377 of the Penal Code have been enforced against them?
MR LEVET: Your Honour, there is no evidence in the Tribunal below that it would. However ‑ ‑ ‑
GLEESON CJ: It is something of a mystery about that, Mr Levet, because one of your clients claimed to have raped a number of young men, but he said that all that happened to him was that he lost his job. I am puzzled about the element of law enforcement or lack of law enforcement that is in the background to this.
MR LEVET: Your Honour, the evidence, in my respectful submission, is simply that homosexuals in Bangladesh would be subject, were they to live openly and were they to force Bangladeshi society to confront their identity, that they would be subject to certain adverse consequences, these including the possibility that they would be bashed by the police. Now, it is inherent, in my respectful submission, in a finding that they might even be bashed by the police, that the police would not protect them were they to go to the police and complain of persecution on the basis of their sexual orientation.
In my respectful submission, one cannot revisit, as it were, the findings of fact. The two findings of fact that the appellants would rely on are firstly that they are homosexual and secondly that homosexuals living openly in Bangladesh would be subject to some degree of ostracism, including possible violence by the authorities. In my respectful submission, were there an apprehension that these appellants would, should they return to Bangladesh, be subject to such a degree of adverse consequences then, in my respectful submission, the Convention reasons are fully made out.
The issue appears to be, fairly and squarely, whether one can apply a narrower test and say, as have the courts below, that homosexuals who have lived discreetly in Bangladesh do not suffer these consequences but homosexuals who live discreetly will be, as it were, allowed to do so.
GLEESON CJ: But is one reason for the discretion the provisions of section 377 of the Penal Code?
MR LEVET: There is not a finding of the fact in the court below in relation to that. It may well be, but the finding of fact that they would not be permitted to live openly as homosexuals in Bangladesh to the extent that were they to confront society with their identity that they would be subject to a range of problems, including bashing by the police, that element of bashing by the police and lack of a police willingness to protect them against others who might do likewise, as a result of sexual orientation, in my respectful submission, amounts to a Convention ground which is fairly made out.
The issue is one of discretion. Discretion is not imposed as a test on refugee claimants who claim on other bases. For instance, I am not aware of any cases where it has successfully been applied other than at tribunal level in respect of claimants who claim persecution on the ground of religious relief or indeed persons who claim persecution on the ground of their political belief.
KIRBY J: Justice Madgwick had a case concerning Burma and political belief, but have there been cases of dealing with religious belief applicants?
MR LEVET: Not that I am aware of at the level of the Federal Court or above, your Honour, but if I could for a moment turn to that case of his Honour Justice Madgwick? My learned friends at page 12 of the respondent’s primary submissions quote Win in general support of their proposition. I quote paragraphs [19] and [20] of it.
GLEESON CJ: Have you a reference to that, Mr Levet, please?
MR LEVET: It is page 12 of the submissions of the respondents.
KIRBY J: Put the citation on the record, please?
MR LEVET: I am sorry, your Honour. Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at paragraphs 19 and 20.
GLEESON CJ: Thank you.
MR LEVET: Your Honours, if I could take you to paragraph 26 of that case and preface it by saying that Win was in fact a case which, whilst it dealt with political views, was ultimately decided in favour of the appellants. Paragraph 26, being the position of his Honour Justice Madgwick, said as follows:
In the present case the Tribunal accepted that free expression of political opinion was not tolerated by the Burmese government and that those actually undertaking such expression were subject to persecution.
Now, I would ask you compare that to the present case that “free expression” of a homosexual identity is not in fact tolerated by the Bangladeshi governmental society and that those actually undertaking such expression are subject to persecution which in this case the finding has been would include, or may include, bashing by the police. His Honour Justice Madgwick goes on to say:
It seems clear enough, from its reasons, that the Tribunal did not appreciate that, accordingly, it was required in these circumstances to consider whether, if they returned to Burma, the applicants would face persecution by the very denial to them of their right to free political expression. This failure, in my opinion, constitutes an error of law under s 476(1)(e) of the Act.
Your Honours, in my respectful submission ‑ ‑ ‑
KIRBY J: What is your answer to the proposition put for the respondent that this is not a way that you presented the case before the Tribunal? That is to say, that you did not contend that the persecution was occasioned by the suppression of their entitlement to live together openly, that that was not the way you presented the case. I think this is what the Full Court of the Federal Court said. What is your answer to that? Does it matter? Are there any factual elements or procedural fairness questions that arise if that is the way it was dealt with by the Tribunal, or are there further factual issues that would have been explored if you had been saying, “I don’t just claim to have the well‑founded fear because I’m a homosexual. I claim it because I am a homosexual living in a relationship with another homosexual and I am not able to do that openly in my own country and that itself is persecution”? Is that a matter that gives rise to further factual questions, or is that it?
MR LEVET: Your Honour, the issue of discretion so far as these appellants is concerned and the issue of a discretion requirement was not part of their original case before the Tribunal. Rather, it was part of the Tribunal’s answer to their claim.
GLEESON CJ: But if they had put a claim of the kind that Justice Kirby was just mentioning, would it not have been necessary for the Tribunal to have a much closer look at the way law enforcement operates in Bangladesh, in particular in relation to section 377 of the Penal Code, which on its face looks like a very sensible reason for discretion?
MR LEVET: On its face section 377 of the Penal Code does appear to be a sensible reason for discretion but in addition ‑ ‑ ‑
KIRBY J: Well, in enforces it.
MR LEVET: It enforces it, yes, your Honour, but in addition to the requirements of section 377 of the Penal Code, there is the finding of fact that these appellants, were their identity to become known, would be subject to a range of adverse consequences which included the possibility of being bashed by the police.
GUMMOW J: But then you have to get subjective fear, have you not? Do you not then run into a credibility problem?
MR LEVET: In effect, to say that there must be a subjective fear ‑ ‑ ‑
GUMMOW J: That is what the cases say, is it not?
MR LEVET: That, in my respectful submission, is in fact the essence of the discretion test. You get into a circuitous situation where a person cannot have an actual fear unless they have been subjected to persecution and have lived their lives in such a manner as to attract the adverse attention of the authorities and society in general. A person who is more timorous and who has not confronted Bangladeshi society would, on the application of that test, never be able to say that he had a well‑founded fear of persecution.
HAYNE J: I would understand the issue to be joined slightly differently, but importantly so. I understand your case in the Tribunal to have been, “I the applicant will be persecuted if I return and live as I wish”. You say it is no answer to that claim to say, “Oh well, be discreet and you won’t be”, and you pray in aid the political, religious and other cases. This may be quite wrong, but the point against you is said to be that the Tribunal finds, “You will not be persecuted if you go back and live as you wish”. That seems to me to be where the issue is joined.
MR LEVET: The Tribunal in effect finds as a matter of fact that the appellants have in the past been discreet and that there is no reason to suppose why in the future they would not be discreet. Indeed, if one takes into account ‑ ‑ ‑
GUMMOW J: That is page 156.
MR LEVET: Yes. Your Honour, I would take up the issue put forward by his Honour Justice Madgwick at paragraph 26 in Win where he says:
It seems clear enough, from its reasons, that the Tribunal did not appreciate that, accordingly, it was required in these circumstances to consider whether, if they returned to Burma, the applicants would face persecution by the very denial to them of their right to free political expression.
In other words, once the issue has been raised of persecution, or the prospect of persecution as a result of sexual orientation, it was incumbent upon the Tribunal to then make an examination on the issue of whether, if they were returned, the circumstances in which they would live in Burma would of itself - in this case Bangladesh - amount to persecution.
KIRBY J: Do I understand your case to be that there has grown up in the Australian Tribunal, as distinct from other overseas tribunals that deal with these cases and receiving countries, a doctrine which we will call the doctrine of discretion and that when a case comes before it, instead of looking to whether the person might have a well‑founded fear because he or she cannot return to the country of nationality without facing the risk of persecution by living openly, that instead of approaching it on that basis in terms of human dignity, the Tribunal approaches all such cases of homosexual applicants through the prism of discretion and, therefore, does not exercise its discretion correctly but by reference to this supposed requirement or doctrine of discretion. Is that the way you put the case or not? I would like to understand.
MR LEVET: I am indebted. Yes, your Honour, that is the way the case is put. Further, in expansion of that, it is put on this basis, that in adopting, as it were, the prism of discretion what the Tribunal has done in the past is to focus on those persons of that sexual orientation within that country and to say, “Would that person, if they lived discreetly, have a well‑founded fear of persecution?”.
GLEESON CJ: Has anybody ever argued this case on the basis that having, and potentially enforcing, a law like section 377 of the Penal Code amounts to persecution? Has that ever been argued in this case?
MR LEVET: Not in this case, no, your Honour.
GLEESON CJ: Section 377 is just looming in the background there.
MR LEVET: Your Honour, it was argued in the court below, or before the Tribunal, that there had been a fatwa in relation to ‑ ‑ ‑
GLEESON CJ: That is a religious sanction, as I understand it.
MR LEVET: It is a sanction under sharia law, yes.
KIRBY J: But that was rejected, as I understand it.
MR LEVET: It was rejected as a finding of fact, yes.
GLEESON CJ: But you in one sense appear to be straining at a gnat and swallowing a camel if you are saying, “The police might be beastly to us”, and there is this law that says they can put you in gaol for life.
MR LEVET: Yes. Your Honours, to some extent I am constrained by the findings of fact at first instance and I embrace, as it were, the first two findings of fact, that is to say, that they were members of a social group and that members of such social group, were their identities to become known to the authorities, would suffer certain types of adverse consequences which would amount to persecution in the Convention sense. What I say is that having made those two findings of fact it is then otiose to go and make further findings of fact as to whether these individual applicants had been subject to persecution.
KIRBY J: But what is being put to you, as I understand it, is that section 377 is a pretty good reason for enforcing discretion.
MR LEVET: Yes, I accept that, your Honour, wholly.
CALLINAN J: But you would have thought if any situation would have invited prosecution it was the rape of the young men which apparently became the matter of some knowledge to the employer.
MR LEVET: Your Honour, in my respectful submission, that falls outside the ambit of a claim for asylum on Convention grounds. What has been argued here and accepted by the Tribunal is that these two appellants form part of a social group, which such social group is subject to persecution, if I can collectively use that word, in the event that they forced the authorities to confront their identity.
CALLINAN J: I understand what the claim is but I do not know how it sits with the assertion by one of your clients of the rapes and the way in which it resulted only in a loss of a job and nothing more than that. It is a factual matter that seems to me raises a problem for you on any view of the occasion, or it may do.
McHUGH J: Must not your case be that the Tribunal never addressed the right question in the case? Your case is not a complaint about the existence of 377. If it was you might have some problems as to whether a criminal law which was non‑discriminatory which prohibited anal sex with men, women and animals could constitute persecution, but at least one view of the case is that accepting that to be so, nevertheless it is persecution if you are homosexual and you are likely to be bashed by the police or you are likely to be harmed in some other way and, speaking for myself, this question of discretion just seems to me to be totally irrelevant.
If you are a homosexual and you want to confront the authorities, maybe by way of protest or otherwise, and you are at risk of being bashed or otherwise harmed, that may amount to the persecution but the Tribunal here does not seem to have made any finding at all as to whether or not there was a potential of being bashed by police. They say you are subjected to some forms of harm such as being subject to gossip or shunned by their families and that does not constitute persecution, but the Tribunal does not seem to have made any finding about the question of whether, if the applicants returned, they were likely to be subject to bashing.
GUMMOW J: Do you agree with that?
MR LEVET: I would agree, your Honour, that the Tribunal did not perhaps ask the right questions.
GLEESON CJ: Well, the Tribunal actually specifically disbelieved practically every single claim your clients made about nasty things that had happened to them, did it not? They claimed to have been stoned, they claimed to have been whipped, they made all sorts of allegations about specific forms of misbehaviour towards them and they were disbelieved.
MR LEVET: And, your Honour, it is significant that the basis upon which they were disbelieved is that the Tribunal said all these forms of harm happen to a person who confronts Bangladeshi society. The police would not support them, the police might even bash them; we do not believe that these things happen, we do not believe that the appellants complained to police because of the consequences that would ordinarily flow, of an adverse nature to them, making such a complaint.
GLEESON CJ: One of your clients was disbelieved when he said he had raped a number of young men, was he not?
MR LEVET: Yes.
GUMMOW J: But the question Justice McHugh was putting to you, with respect, is an essential question and it is directed to the framework of judicial review. Now, if it is not one, it is adverse to you really.
MR LEVET: No.
GUMMOW J: We have to get this case into the right framework for administrative review and the question is, did the Tribunal ask itself the right questions?
McHUGH J: See, at 156 at line 31 the Tribunal says:
From the evidence set out above it appears that homosexuals would probably be shunned by friends and family and perhaps even bashed by the police.
MR LEVET: Yes.
McHUGH J: Now, a question is surely, if these applicants returned and, for one reason or another it became known that they were homosexuals, is it likely that they would be subjected to bashing, was there a distinct possibility, and if so, does that amount to persecution? I would have thought it would, once you make the finding of fact or prediction.
MR LEVET: Your Honour, there is that finding on that page that it is not possible to live openly as a homosexual in Bangladesh.
McHUGH J: Yes, but then the next question is, something may happen to you, but what? If they are merely going to be prosecuted, that gets you under 377. That gets you into another area as to whether you can say a criminal law that is not arbitrary, but deals with men, women and animals, constitutes persecution. That is one thing, but to be subject to being bashed or stoned or something else is another issue.
MR LEVET: Indeed.
McHUGH J: And that may well constitute persecution; I would have thought it does, but the Tribunal did not ask itself that question.
MR LEVET: But it made that finding, your Honour.
McHUGH J: No, but it did not ask the question, did it? If they returned would they be likely to be bashed et cetera, et cetera, unless they ‑ ‑ ‑
GUMMOW J: If they did not ask the right question, they were in trouble. The Tribunal is in trouble, from the point of administrative review. You do not seem to want to grapple with that which assists you; you want to talk about discreet people all the time. If there is a more direct route I do not know why you do not want to take it.
MR LEVET: Your Honour, the Tribunal did not ask any questions in relation to what was likely to happen to them should they return, save and except it was implicit in the Tribunal’s judgment that the Tribunal felt that they would continue to live discreetly.
McHUGH J: Assume they were peeping Toms. They said, “Well, we go back; not only are we punished under the law, but we are singled out for special treatment by police or gangs or bashed and whipped or stoned or something”. Why would that constitute persecution and, likewise, with the applicants?
MR LEVET: Your Honour, for a person to be ‑ ‑ ‑
McHUGH J: I do not see what this question of discretion has to do with the case, to be quite frank.
MR LEVET: It has this to do with it, with respect, your Honour. There is a finding ‑ ‑ ‑
McHUGH J: I am not saying that against you; I was trying to help you. There seem to me to be two issues. Are they likely to be prosecuted under the laws of Bangladesh? If so, that raises one question. Are they likely to be subject to other forms of extra‑curial punishment? That seems to me to raise a real question of persecution. Whether or not they want to be discreet just seems to me to be totally irrelevant, with great respect to anybody who is of a contrary view.
MR LEVET: Your Honour, the finding in the Tribunal is that if they lived openly as homosexuals in Bangladesh, they would be subject to a range of problems which your Honour would accept as amounting to persecution. That is:
being disowned by one’s family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police.
That is a finding of fact that that is what would happen to them.
McHUGH J: The fact that they are shunned by their families does not necessarily mean it is persecution. Even in our own society people who marry outside their religion are shunned by their families, people who marry people from other races are shunned by their families.
MR LEVET: Yes, but one hopes they are not bashed by the police.
McHUGH J: No, I know, but you get into a different territory once you start talking about being bashed by the police or stoned by mobs.
MR LEVET: Your Honour, there is a finding of fact before the Tribunal that, were they to attempt to live openly as homosexuals in Bangladesh, they would be subject to serious forms of harm including ‑ ‑ ‑
McHUGH J: Where is that finding?
MR LEVET: That is on page 143 of the appeal book starting at line 26:
From this evidence it is clear that homosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh. To attempt to do so would mean to face problems ranging from being disowned by one’s family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police.
That is a finding of fact, your Honour.
HAYNE J: How does that fit in with what is said in the last paragraph on 156? Perhaps you say they are irreconcilable, but can we at least attempt to discover what you say about it?
MR LEVET: Certainly, your Honour. In relation to the comments on 156, there is an acknowledgment. If one follows the paragraph to which your Honour refers across to the top of page 157:
They clearly conducted themselves in a discreet manner ‑ ‑ ‑
HAYNE J: We are back to discretion. I understand that, but is there a tension, is there not a tension, between what is said at 143 and what appears from line 39 on 156? A possible reading of what appears at 156 is:
I accept that . . . they lived together in Bangladesh from 1994 . . . they were shunned by their families . . . They may also have been the subject of gossip and perhaps even some taunts . . . do not believe that this constitutes serious harm . . . do not believe . . . real chance –
will suffer more than has already happened if they go back. Is that to read that incorrectly?
MR LEVET: Yes, it is, with respect, your Honour, because that is subject to the clarification at the top of 157, that “They clearly conducted themselves in a discreet manner”. As to discretion, I understand your Honour understands discretion, but that to some extent is the nub of the case in that if they behave in a discreet fashion, they are not going to get bashed by the police. The flipside of that coin is if they do not behave in a discreet fashion, they are going to be subject to serious forms of harm, including the possibility of being bashed by the police. That coin with its two flipsides imposes a requirement of discretion. To adopt the Anne Frank argument which was adopted far more eloquently than I can by his Honour Justice Madgwick, Anne Frank would not have had a reasonable apprehension of persecution or a well‑founded fear of persecution 10 minutes before the Gestapo knocked her door down and took her off to a death camp and she would not have had so because hitherto she anticipated that she had been discreet and that she had not come to the attention of the authorities.
Were Anne Frank before this Court, it is unthinkable to think that she would be faced with the argument, “You have been discreet in your attic for the last three years. We have no reason to suspect that you would not continue to be so discreet were you to return to the country in which you claim to be persecuted by the Gestapo and on that basis we send you back.” It is a discretion test that is required and it is only required of persons claiming asylum on the basis of sexual orientation.
KIRBY J: So, is your argument that you cannot avoid the issue of discretion because it is asking too much and that by failing to address it, despite its findings, the Tribunal fell into error because it did not, as it were, go on from the last paragraph, or the last sentence on page 157, to say, “But this obligation of discretion is to impose on the applicants the obligation of denying the truth of themselves and forcing them to pretend that they are other than they are, and that that is exposing them to persecution if they are obliged to do that.”
MR LEVET: Indeed, your Honour, yes. In fact, the country material on which the Tribunal relied talked of some of the discreet homosexuals who did not suffer problems. Those included persons who married and pretended to live an overtly heterosexual life whilst having casual meetings in parks and it is pointed out that they were, as it were, tolerated and not persecuted by Bangladeshi society. Here we have a finding that these people could not live openly.
We have a finding, as it were, that they had been discreet and could continue to expect to be discreet. In my respectful submission, that is indeed imposing a test of discretion which the court was then obliged, in my respectful submission, to adopt the examination that was looked at by his Honour Justice Madgwick in paragraph 26 of Win, or the second half of paragraph 26.
McHUGH J: But against the background of 377 is not the question of discretion a red herring? Take the question of alcohol. In a number of societies the use of alcohol is prohibited by law but it is condoned in the home. So, people can drink at home. They are being discreet. Is that persecution because they have to drink at home? It would be a different thing if they said, “Well, if they drink in public they are likely to be stoned or bashed by the police”, or something else happen to them. That is why I tend to see this question of discretion as an irrelevancy. Supposing these people wanted to go around in T‑shirts saying, “I am gay”, or, “I am a gay activist”, or, “I am homosexual”, would they likely to be bashed, then?
MR LEVET: The finding is that they would, yes, and that is the clear finding of the Tribunal, that were they to confront Bangladeshi society that is what would occur.
GLEESON CJ: Would they be prosecuted? Suppose they had on the T‑shirt, “I contravened section 377”, would they be prosecuted?
KIRBY J: Well, there was no finding on that.
McHUGH J: They might be. Your point could be, it is one thing to be prosecuted according to law and it is another thing to be bashed or stoned or whatever you – that is the persecution.
MR LEVET: Indeed, your Honour, yes.
KIRBY J: Stoning was found against you, was it not?
MR LEVET: Yes.
McHUGH J: Yes, but bashing ‑ ‑ ‑
KIRBY J: And bashing seems to have been found as a possibility.
MR LEVET: Yes. Your Honours, if one looks at the cases involving other claimants for refugee status, there are no cases of which I am aware say in relation to political activism or holding political grounds where it has ever been suggested by an Australian court above the Tribunal level that an appellant should refrain from exercising his political beliefs, from making those beliefs known or from, as it were, participating in the political life of the country in which he says he is persecuted. Likewise, there are no cases of which I am aware where an Australian court at above the Tribunal level has imposed a like requirement in respect of an applicant on religious grounds.
A court would not, in my respectful submission, say of a person it is all very well for you to be a Callithumpian in the privacy of your own house, you have been discreet about it before because you have obviously not been bashed by police and we anticipate that you would continue to be discreet in the future. The example that your Honour gives in relation the alcohol is, in my respectful submission, not necessarily an appropriate analogy. To not partake of alcohol is not a denial of a person’s identity.
KIRBY J: It might be in some cases, but not everybody. What you are saying is it is not as deep in your imprint as your sexual orientation.
MR LEVET: Yes, indeed.
KIRBY J: Similarly, one might say with religious beliefs and political beliefs, they are not as deep in your imprint as your sexual orientation.
MR LEVET: Indeed, your Honour, yes. If I can take your Honours to the respondent’s submissions, paragraph 33 on page 11, the respondents talk about the depth to which a person holds belief and they talk about a devotee of a particular religion. In some instances if a person had significantly embraced that religion, to be unable to attend the religious service might have a:
serious impact on a devout and otherwise active member of that religion. The same denial may be of little or no consequence to another member of the same religion whose faith is nominal or who choose for whatever reason not to attend a religious service in any event.
Your Honours, it is significant that that submission put forward by the respondent is not supported by a case.
There is no case of which I am aware that makes that point in respect of religious observance. There is no case, save and except, as I understand it, at the Tribunal level, relating to that. There are a number relating, as I understand it, at the Tribunal level to Falun Gong where an examination is made of the extent to which they embrace that particular practice but there is no case of which I am aware, certainly not at an appellate level, where a court has, in effect, said that a denial may be of no consequence to you because your faith is merely nominal.
Your Honours, the cases where, as it were, a discretion test is imposed - are imposed on a very widespread basis in cases of sexual orientation, it is not difficult to find examples of that occurring.
GUMMOW J: I know, but we do not have to rummage around in the Tribunal decisions. Is there any decision you can point to using this discretion notion? Just like Justice McHugh, I think it is a bit of a furphy at the moment. Is there any case in which this discretion notion is related to the terms of the Convention definition?
MR LEVET: Not specifically that I am aware of, no, your Honour.
GUMMOW J: That is the problem. People will not construe the definition. They would much rather construe something connected to it by an attenuated method of reasoning. It seems to me if you face the Convention definition, you will - or the necessary ground ‑ ‑ ‑
MR LEVET: Your Honour, the Convention ‑ ‑ ‑
GUMMOW J: Is there any Tribunal case or any other case using this discretion idea that relates to this notion of well‑founded fear? That is what it has to be related to, does it not? It has to be related to the words “well‑founded” or “fear”, I do not know, if it is to have any legs. I can see why in the Federal Court you were somewhat hamstrung by this notion of discretion but once you are here you are not. It is a bit of a straw man I suspect that has been used against persons in your clients’ position.
MR LEVET: Your Honour, there are a number of Tribunal cases. If I can take your Honour to the appellants’ submissions paragraph 13 in the first instance.
GUMMOW J: Is there any in the Federal Court, maybe on appeal?. Justice Hayne refers to LSLS v MIMA [2000] FCA 211. It is referred to in footnote 34 in the article in the Sydney Law Review which we have been supplied with.
MR LEVET: Yes, your Honour, I have that, thank you. Your Honour, page 7 of that, that is paragraph [26].
KIRBY J: What are we looking at now?
MR LEVET: LSLS, your Honour.
HAYNE J: I do not think we have it on our list. I do not think we have the text in front of us.
KIRBY J: Could you put it on the record please so that we have it on our transcript.
MR LEVET: Yes, your Honour. Your Honour, the appropriate quotes in that case are firstly paragraph [22], which says:
Those passages, by their use of expressions like “parade” and “flaunt” indicate that the Tribunal regarded the asserted right of “proclamation”, which it declined to recognise, as embracing more gratuitous and indiscriminate forms of disclosure than those necessary to identify prospective partners in consensual sexual activities. The applicant relied only on the latter forms of disclosure by contending that persecution would follow any but the most secretive, furtive expression of his sexual orientation.
Further, at paragraph 26 – and this, your Honours, is applicable to the discretion requirement:
The more reasonable question is whether the applicant, as a homosexual, may live a reasonably normal life in Sri Lanka without having to abandon any of his fundamental human rights. In answering this question, it is proper to take into account the attitudes of others and of society in general in order to determine what kind of lifestyle it is open to him to lead.
Having regard to the above information, I think the reasonable conclusion must be that a homosexual man in Sri Lanka is able to practise his sexuality safely, provided that he is discreet.
HAYNE J: Now, this seems to involve, does it not, an inversion, an inversion of argument starting from a paradigm described as, what was it, sufficiently normal life, some such expression, and then comparing it with that? Does this not come back to the point which Justice McHugh was asking you about: is not the question, can this applicant go back to the country of origin and there live the life that he or she wishes to lead without there being a well‑founded fear of persecution for a Convention reason on account of the way this applicant would choose to live his or her life, rather than start from a paradigm and argue down from that?
As I say, the point that seems to be made against you is at the level of saying, these applicants, if they go back and lead the life they choose to lead in the fashion they choose, will not be subject to persecution. Now, that may be a good answer, it may be a bad answer, but is this not the realm for debate?
MR LEVET: It is certainly, your Honour, a question that the Tribunal should have asked, having made the findings that it did.
McHUGH J: Well, it is just about the most fundamental question it should have asked, is it not?
MR LEVET: Yes.
McHUGH J: But the clearest statement of the Full Court’s position on this appears in a more recent case. It is WABR v The Minister for Immigration [2002] FCAFC at 124. In paragraph 25 the Full Court said in the joint judgment:
If, as is the case of Iran, homosexuality is a criminal offence, but if, as a finding of fact, the Tribunal is satisfied that the authorities do not actively pursue offenders, the Tribunal is within its rights in expecting that potential offenders would act with discretion and that they would refrain from publicising their sexuality.
So that seems to be the Full Court’s position on this matter, that:
the Tribunal is within its rights in expecting that potential offenders would act with discretion ‑ ‑ ‑
MR LEVET: Yes, your Honour, that is paragraph 23.
McHUGH J: Paragraph 23, is it? It is 25 in mine.
MR LEVET: Sorry.
McHUGH J: This is WABR.
MR LEVET: Yes, your Honour. Your Honour is quite correct, that is paragraph 25.
GLEESON CJ: There is an ambiguity in that word “expecting”, is there not? Does it mean predicting or imposing an obligation? If I say to somebody, “I expect you to behave in a certain way”, it could mean different things. If I say that to a child, it could mean, “I require you to behave in a certain way”. If I say that to an adult, it could mean, “I am making a prediction that this is what you are going to do”.
MR LEVET: Yes, your Honour. Indeed, the way it is used, in my respectful submission, in effect imposes the requirement. It is not simply a prediction.
GLEESON CJ: In what paragraph?
MR LEVET: That is in paragraph 25, second last line:
the Tribunal is within its rights in expecting that potential offenders would act with discretion and that they would refrain from publicising their sexuality.
GUMMOW J: The Tribunal does not have any rights at all. It has an obligation.
McHUGH J: Paragraph 27 rather makes it clear the Full Court was talking in terms of obligation. The last sentence says:
It was also open to the Tribunal to conclude that it was reasonable to expect that the appellant would accept the constraints that were a consequence of the exercise of that discretion.
MR LEVET: Indeed. Thank you, your Honour. Further, your Honour, at paragraph 23 the court says:
The applicant in Applicant LSLS claimed that the Tribunal had been in error because, as he contended, a characteristic which identified his membership of a particular social group included a right to public proclamation of his homosexuality for the purpose of meeting prospective sexual partners; consequently it was wrong – and an error of law – to impose on him “a degree of discretion”.
McHUGH J: But the test that is posed there by the Tribunal:
Public manifestation of homosexuality is not an essential part of being homosexual –
but it does not really answer the question. That is not the question. The question is, “What is likely to happen to you if there is a public manifestation of your homosexuality?” Now, it is one thing if you are prosecuted, according to law. It raises other issues. It is another thing if you are likely to be stoned or bashed or something else may happen to you.
MR LEVET: Your Honour, the Tribunal should have embarked upon a further examination, having made the findings that it did, but the finding it has made is, whilst it is silent on the criminal aspects, it has made a finding that there are more serious forms of harm, including the possibility of being bashed by police if one lives openly as a homosexual. Here we have a case of persons who certainly are living together. There is a finding that that is the case. They have certainly now passed the age where societal norms in Bangladesh would have expected them to marry so one can presume that there is an increasing likelihood, as it were, of detection, even in a discreet setting.
GLEESON CJ: Mr Levet, was the decision in WABR an appeal from Justice Finn’s decision in Nezhadian? I know it was an appeal from Justice Finn but I cannot work out whether it is the same case.
MR LEVET: I am instructed yes, it was, your Honour.
GLEESON CJ: Could I direct your attention to paragraph 10 of Justice Finn’s reasoning in Nezhadian, [2001] FCA 1415 in that case, and could I invite you to indicate where, if at all, it involves error? He seems to adopt the “red herring” theory of discretion. Paragraph 10.
GUMMOW J: Paragraph 10.
MR LEVET: Thank you, your Honour.
GLEESON CJ: He, I think, more accurately, describes it as a distraction. What is wrong with what Justice Finn said and why did the decision of the Full Court in the present case involve any more than an application of that approach?
GUMMOW J: You have to read paragraph 11 of Justice Finn too.
KIRBY J: Is the answer that taking minor precautions does not aptly describe not living with a person of your own sexual orientation whom you choose to live with in fulfilment of your human personality, that that is not a minor precaution?
MR LEVET: Indeed, your Honour.
KIRBY J: That that is a major precaution, a major deprivation from human dignity? At least that would be one view.
MR LEVET: Yes.
GLEESON CJ: Whether the reasoning of Justice Finn on the point is right or wrong, does it reflect the approach that the Full Court adopted to the matter of discretion in the present case?
MR LEVET: Certainly at paragraph 11 where it is said:
It was accepted that there was a need to show “discretion” and that this resulted in the imposition of limits upon his behaviour.
GUMMOW J: You have to read 12 too.
McHUGH J: In fact this might have been a very difficult case to run, because there does not seem to be any suggestion that there was any extra‑curial sanctions. The applicant’s complaint seems to have been about the law, which itself might have raised real problems. There does not seem to be any suggestion in the judgment that he was likely to be bashed. In fact there are statements about a level of tolerance of homosexual activity in Iran.
KIRBY J: It is tolerance if you make the non‑minor precautions.
MR LEVET: Yes. Your Honour, there is a ‑ ‑ ‑
McHUGH J: I think there is tolerance in the sense that you might be prosecuted if you were not discreet but nothing else would happen to you.
MR LEVET: In other words, the pre‑Croome Tasmanian situation.
McHUGH J: Yes.
MR LEVET: Your Honour, the finding of fact here is something that goes far beyond that.
McHUGH J: Yes, that is what I was putting to you.
GLEESON CJ: We now know, do we not, from this report what the Full Court was talking about in WABR when they referred to “expectation” and in what sense they were using it? It is obvious from the quotation from the Tribunal which appears on page 3 of the decision in Nezhadian where the Tribunal said seven‑tenths of the way down the page:
having regard to all the circumstances I expect that the applicant would continue to be discreet in his homosexual relationships and behaviour, to the same extent that he has been discreet in the past.
Plainly it was using “expectation” in the sense of “prediction”, not an unreasonable prediction having regard to the fact that flogging was part of the sanction for contravention of the law and the death penalty could be imposed.
MR LEVET: Indeed, and were you to adopt that test here, the sanctions include the more serious forms of harm, including bashings by the police, so there is an expectation in that sense, the word that because of the serious forms of harm that can befall you that you would be discreet because to be otherwise would be to invite the harm. In other words, you are saying to Anne Frank, “Stay in your attic”.
GLEESON CJ: But when the Full Court in WABR in paragraph 25 said that the Tribunal was within its rights in expecting something, it was referring to the expectation expressed by the Tribunal that is quoted in paragraph 4 of the judgment of Justice Finn in Nezhadian, is that right?
MR LEVET: In paragraph 4 he is referring to the need to be discreet in relation to sexual relationships generally in Iran.
GLEESON CJ: In paragraph 4 of Justice Finn’s judgment on page 3, seven‑tenths of the way down the page, he quotes from the Tribunal saying that the Tribunal expected something, in the sentence beginning with the words “Having regard”, do you see that?
MR LEVET: Yes, your Honour, I see that.
GLEESON CJ: Is that the expectation to which reference was being made in the Full Court on appeal from the decision of Justice Finn in paragraph 25?
MR LEVET: I would anticipate that that is probable, your Honour.
KIRBY J: In a sense it is a self‑fulfilling prophecy, is it not, because if you say “I expect he will be discreet when he returns to Bangladesh or Iran or to other countries where they are liable to criminal and social and religious sanctions”, you are saying both what you expect and what by your decision you oblige the person to conform to it, namely to continue a life of pretending to be somebody other than he is.
MR LEVET: Indeed, yes, your Honour. I mean, the corollary is that if the person is returned he will be discreet or he will suffer the types of harm that the finding in the court below has indicated would occur. In other words, you are saying to Anne Frank “Stay in your attic. I expect that you will do so. We’ll send you back to occupied Europe. I expect that you won’t go outside into the street. I expect that you’ll continue to be discreet because to do otherwise would be to invite death and if you are so discreet there’s no reason to suspect that you would incur any of these things.”
Your Honours, unless I can assist you further.
GLEESON CJ: Thank you, Mr Levet. Yes, Mr Gageler.
MR GAGELER: If your Honours will permit me to indulge in some elementary propositions, I will get to the point very quickly. At page 161 line 11 of the appeal book, your Honours will see the Convention definition which your Honours have had to grapple with on many occasions. It is a definition which, as your Honour Justice Gummow pointed out in Applicant A 190 CLR 278, reflects in a broad sense a humanitarian concern with displaced persons and it is a definition which, as your Honour Justice Kirby pointed out in Ibraham 204 CLR 69, must be construed according to its language, that language falling short of affording protection to every victim of discrimination or abuse of human rights.
The definition begins and ends with a person, an individual, who is outside his or her country of nationality and is unwilling to return. To fall within the definition, the unwillingness to return of that individual must be based upon a fear that is both subjectively held and objectively well‑founded. The fear is of that person, that individual, being persecuted for a Convention reason, membership of a particular social group being one of the five recognised Convention reasons.
Now, leaving entirely to one side any question of well‑foundedness, which has generally occupied the attention of the Court in the past, it is necessary in applying the definition to look to the particular individual and to ask a number of very basic questions. Does this individual have a fear? If so, what is it that the individual fears? Does the thing feared amount to persecution within the meaning of the Convention? If so, is that feared persecution for a Convention reason, relevantly membership of a particular social group?
Now, if one takes the basic facts in the present case, stated most favourably to the appellants, they are these: one, the appellants are Bangladeshi homosexual males; two, there is a particular social group of Bangladeshi homosexual males; and three, members of that particular social group face physical harm if they are not discreet. Now, the critical question ‑ ‑ ‑
KIRBY J: That is not the only way in which you could define their social group.
MR GAGELER: I will leave that to one side. That is the way they seek to define their social group, and have always sought to define their social group. I will come back to that, your Honour. The critical question, if one accepts that basic factual scenario, is what is it, if anything, that the appellants fear? Do they fear physical harm or do they fear being forced to be discreet so as to avoid physical harm?
Converts to Christianity are generally tolerated as long as they maintain very low profiles –
and that the applicant would not bring himself to the attention of authorities. The court found that the Tribunal had erred in failing to address the future focus and the risk of inadvertent exposure. Your Honours, the risk of inadvertent exposure, in my respectful submission, is something also that the Court ought have regard of.
Your Honours, a decision in the matter of Farajavand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 on 20 June 2001. The decision of his Honour Justice Allsop takes up this issue of a low profile that your Honour Justice Kirby addressed earlier, and his Honour said at paragraph 25:
To say that if he keeps a “low profile” and worships “quietly” or “cautiously” or “circumspectly”, is, I think, with respect, to deny the applicant a dimension to his faith, even accepting that he is not an enthusiastic proselytiser or derider of Islam. Further, on my reading of pages 16 to 18 of the decision, and the balance of the reasons of the Tribunal, it appears to me that the Tribunal recognised in its findings that the applicant would keep a low profile or be cautious or circumspect and that he would do so out of recognition of the likely consequences from State authorities in Iran if he did not do so.
KIRBY J: There seems to be a consistent stream in the Federal Court against the low profile thesis, the discreet doctrine in respect of political opinion - that is Win - and in respect of religious opinion - and that is this case and others - but there seems to be no inclination to apply a similar doctrine to cases of applicants who are homosexual. How does one reconcile that difference of approach, except that some people may have greater sympathy for people’s political free expression and religious free expression than for the expression of their sexual identity?
MR LEVET: Indeed, your Honour, that is the very nub of the case. I opened, as you recall, on a quote from his Honour Justice Rehnquist in the United States Supreme Court and said that all that the appellants in this case were seeking was an even-handed application of an already existing body of law, and that is the situation. They would seek to be treated even-handedly in looking at this issue of whether they had a well-founded fear of persecution in exactly the same way as persons seeking Convention relief on religious or political grounds.
The only other issue that I might be able to assist your Honours with is in relation to the citing by my friend of the case of MMM, that being relating to section 377 of the Bangladeshi Criminal Code. If I could take your Honours in relation to the point made in MMM to page 86 of the joint appeal book line 39 onwards. This relates to the extant law, the section 377. Page 86 is, you will see, part of an edited version of the country information, which continues on from the preceding page. From line39 onwards it says:
I AM NOT AWARE OF COURT CASES IN BANGLADESH. HOWEVER, IN INDIA THERE HAVE ONLY BEEN A COUPLE. THE ISSUE HERE IS THAT THE POLICE HAVE OFTEN USED THE LAW NOT TO ARREST PEOPLE BUT TO OBTAIN MONEY THROUGH BLACKMAIL OR TO OBTAIN SEXUAL FAVOURS.
When there is a reference to “here”, that is obviously a reference to Bangladesh, given the title on the preceding page, 85. So, the mere fact that while the law might be extant 377, the mere fact that it might not have been used in the strictly legislative or application of law sense by way of a prosecution for a significant period is not to say that it is not used at all. There is evidence here that it is used to obtain money through blackmail or to obtain sexual favours and that that use is made by the police.
Your Honours, we get back to what was the issue that the court had to decide, and it was simply this: do these people have a well‑founded fear of persecution? We would say, yes, they do, unless they act in such a way as to hide their sexuality upon their return to Bangladesh. The question is exactly the same as that relating to Anne Frank: did she have a well‑founded fear of persecution in Amsterdam? The answer, yes, she did, unless she continued to successfully hide in the attic.
Your Honours, those are the submissions, unless I can assist you further.
GLEESON CJ: Thank you. Yes, Mr Gageler.
MR GAGELER: May I correct my categorical answer to your Honour Justice Kirby concerning the legislation that would apply if the matter were to go back to the Tribunal. The Tribunal’s reconsideration of the application of the definition in the Refugees Convention would be affected by the new section 91R which was inserted by the Migration Legislation Amendment Act(No 6) 2001, and that is made clear by the transitional provision, schedule 1, clause 7, paragraph (c).
GLEESON CJ: And what would be the relevance of that?
MR GAGELER: It does not bear directly upon the present issues but it does say that the persecution must involve serious harm and the persecution must involve systematic and discriminatory conduct.
KIRBY J: But you are not raising as a reason for not allowing the appeal the point that it would be immaterial?
MR GAGELER: No, I am simply correcting the answer that I gave to your Honour earlier.
KIRBY J: Yes, thank you very much.
GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.
AT 3.01 PM THE MATTER WAS ADJOURNED
0
4
0