Hossain v Minister for Immigration and Multicultural Affairs

[1999] FCA 957

FEDERAL COURT OF AUSTRALIA

Hossain v Minister for Immigration & Multicultural Affairs

[1999] FCA 957

MIGRATION – application for judicial review of decision of Refugee Review Tribunal affirming decision not to grant applicant protection visa – finding that applicant not a homosexual – whether failure to put to applicant that he was not a homosexual – whether error of law

Migration Act 1958 (Cth) ss 420, 476(1)(a), 476(1)(e)

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577 applied
Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 cited

ABUL HOSSAIN v THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 1166 OF 1998

LEHANE J
14 JULY 1999
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1166 OF 1998

BETWEEN:	ABUL HOSSAIN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent
JUDGE:	LEHANE J
DATE OF ORDER:	14 JULY 1999
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        The application be dismissed.

2.        The applicant pay the respondent’s costs of the application.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1166 OF 1998

BETWEEN:	ABUL HOSSAIN Applicant
AND:	THE MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Respondent

JUDGE:	LEHANE J
DATE:	14 JULY 1999
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. This is an application for review of a decision of the Refugee Review Tribunal dated 29 September 1998, by which the Tribunal affirmed a decision not to grant the applicant a protection visa. The grounds on which the applicant relies are those provided in s 176(1)(a) and (e) of the Migration Act 1958 (Cth). He claims that procedures required by the Migration Act to be observed in connection with the making of the decision were not observed and that the decision involved an error of law, being an error of law involving an incorrect interpretation of the applicable law or an incorrect interpretation of the applicable law to the facts as found by the Tribunal.  The application propounds a third ground (there was no evidence or other material to justify the making of the decision) but no submissions were made in support of that ground and it need not be considered further.

   Background facts

2. The applicant is a Bangladeshi national.  He arrived in Australia, without papers, on 22 October 1995 (he was a member of the crew of a ship and deserted while the ship was in an Australian port).  He applied for a protection visa, claiming to be a homosexual and thus a member of a particular social group in Bangladesh, the group comprising male homosexuals; he claimed to fear persecution in Bangladesh for reason of his membership of that social group.

3. The applicant’s account of his circumstances may be summarised briefly.  He was born in Jessore, Bangladesh, on 22 April 1968.  He was a good student.  In due course he graduated with honours from Chittagong University.  He was employed as a teacher at a high school in Chittagong in January 1992 and remained there until he was dismissed in January 1995.  During the same period, and until April 1995, he also conducted a business which seems to have been a bookshop which provided also the services of a lending library.  As a student he had some involvement in politics, but it was not suggested that anything turned on that.  He began a sexual relationship with his partner in the bookshop business in late 1993.  Neighbours found out about the relationship.  In November 1994, the applicant was given, by the head teacher of the school at which he taught, a “show cause notice”; the notice produced to the Tribunal, however, refers to complaints about what the applicant taught, not his sexual orientation or conduct.  In December 1994, the applicant claimed, a “verdict” was entered against him by an assembly of Islamic fundamentalists: there was before the Tribunal a document described as “Arbitrament for the accusation of unnatural activities”.  The applicant claimed that he and his partner were sentenced to punishments which included beating with a cane and with a shoe; he did not claim, however, that any such punishment was ever carried out, though he remained in the district for several months afterwards.  On 28 January 1995 the applicant claimed to have been dismissed by the school (though shortly beforehand he acted as master of ceremonies at an important school function, attended by a minister: he produced photographs of himself addressing those gathered at the function).  Then, on 3 March 1995, the applicant claimed that his father had been excluded from the local Mosque on account of the applicant’s homosexual relationship.  He claimed that, at about the same time, he was expelled from the political party of which he was a member, the Jammat e Islam Party.  Subsequently his shop was set on fire.  He joined a shipping company as a crew member and, in due course, found his way to Australia.

4. Once in Australia, the applicant resided with two other Bangladeshi men.  He invited to join them another Bangladeshi man whom he had met and with whom he commenced a sexual relationship (I shall refer to him as the applicant’s partner).  The fact that the applicant and his partner had such a relationship became known to the other two men, who severely assaulted the applicant (a medical certificate was produced).  The applicant and his partner moved elsewhere.

5. The applicant made a declaration as to his relationship with his partner and gave oral evidence about it to the Tribunal.  His partner also provided declarations and gave oral evidence.  The applicant provided to the Tribunal, as well, a declaration by another man with whom he claimed to have had a brief sexual relationship in Sydney before he met his partner.  The maker of that declaration, however, did not give oral evidence: apparently, the Tribunal was told that he was not available to do so.  Additionally, there was before the Tribunal a great deal of material (much of it provided by the applicant’s advisers) concerning the treatment of homosexuals in Bangladesh and other countries in the region.

   Tribunal’s reasons

6. The Tribunal did not consider whether homosexual males constituted, in Bangladesh, a particular social group or whether, if they did, the applicant had a well‑founded fear of persecution in Bangladesh because of his membership of that group.  The Tribunal based its decision on the simple ground that it did not accept that the applicant was a homosexual.  It considered that there were a number of discrepancies and improbabilities in the applicant’s account of events in Bangladesh and that a number of features of the documents submitted by the applicant suggested that they were not authentic.  As to events in Australia, the Tribunal considered that there were inconsistencies in the accounts given by the applicant and his partner; in the Tribunal’s view, the applicant and his partner had collaborated to fabricate a relationship between them.  Nor, in the circumstances, was the Tribunal prepared to accept the declaration of the other man who claimed to have had a relationship with the applicant in Sydney: it took the view that that account was a concoction also.  The Tribunal concluded as follows:

   “The Tribunal is not satisfied that the claim to sexual relationships between the applicant and [his partner and the other Sydney man] are genuine.  The Tribunal is not satisfied, given the applicant’s lack of credibility, that he is a homosexual or that he was involved in a homosexual relationship with [his partner in the bookshop venture].  The Tribunal, on the basis of lack of credibility of the applicant’s claims, is unable to find that he is a member of [a] particular social group of homosexual males in Bangladesh.  The applicant did not seek [a] protection visa on the grounds of his political opinion.  The Tribunal is not satisfied that the applicant has a well founded fear of persecution for reasons of his membership of a particular social group.”

   Submissions on the application for review

7. The hearing of the application took place a short time before the High Court published its decision in Minister for Immigration and Multicultural Affairs v Eshetu (1999) 162 ALR 577. Counsel for the applicant informed me that the applicant pressed one argument only. In written submissions to the Tribunal, delivered shortly before the hearing before the Tribunal, the applicant’s solicitors had said this:

   “The applicant contends that he is a person of homosexual orientation.  If this remains an issue please advise and we will obtain a psychiatrist’s report as expert evidence.”

8. The Tribunal had not responded to that invitation. Nor, it was said, had the Tribunal member, at the hearing, suggested that there was any question in the Tribunal’s mind about the applicant’s sexual orientation. As a result, in reaching its decision on the ground that it was not satisfied about the applicant’s sexual orientation, the Tribunal had denied the applicant substantial justice (and thus had failed to comply with s 420 of the Migration Act) so that, on the basis of the law as it was understood before the decision in Eshetu, its decision was reviewable under s 476(1)(a) of the Migration Act.  There was, however, a difficulty: neither party had obtained a transcript of the hearing before the Tribunal, so that counsel was unable to establish what had, or had not, been said in the course of the hearing.  The matter was therefore adjourned so that a copy of the transcript might be obtained and each party might make further submissions in the light of it.

9. That has now happened.  Having regard, presumably, to Eshetu, the applicant now submits that the Tribunal failed properly to apply the “real chance” test: Chan v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379. The essence of the submission appears in the following paragraph:

   “Evidence of the applicant’s homosexuality was offered to the Tribunal and was not taken up by the Tribunal.  The Tribunal it is submitted has failed to properly apply the ‘real chance test’.  The Tribunal in failing to avail itself of an opportunity to examine the evidence offered to it by the applicant has, in the applicant’s submission, failed to properly consider whether the applicant had a real chance of being persecuted should he return to his home country.  In this regard it is submitted that the Tribunal has erred in law and the matter should be remitted to the RRT to be determined according to law.”

   Counsel provided me with a copy of the transcript of the hearing before the Tribunal.  He contended that at no time during the hearing had the Tribunal challenged the applicant’s evidence that he was a homosexual or suggested that the applicant should submit further evidence as to his homosexuality.

10. Counsel for the respondent, on the other hand, pointed out that the ground of review under s 476(1)(e) is available only where the Tribunal has made an error of law which involves either “an incorrect interpretation of the applicable law or an incorrect application of the law to the facts as found”. The Tribunal, counsel submitted, correctly identified and applied the test. It was submitted that, although the Tribunal did not in terms put to the applicant that he was not homosexual, it was not obliged to do so, nor was it obliged to take up the invitation in the solicitors’ submission. The Tribunal did, it was said, challenge several particular aspects of the applicant’s account. In any event, it was clear as a result of Eshetu that, even if there had been procedural unfairness, that would not be a ground of review.  Ultimately, it was said, the applicant’s complaint was directed to the Tribunal’s assessment of the facts: a matter for the Tribunal, not for the Court.

    Consideration and conclusion

11. There is, I think, room for concern about the way in which the Tribunal proceeded.  Certainly, I do not think the Tribunal was obliged to take up a three‑line invitation in the middle of the thirteenth page of a detailed fifteen‑page submission.  It is true also that the Tribunal member questioned the applicant in some detail, and in the process clearly indicated considerable scepticism, about the applicant’s account of events in Bangladesh.  It is easy to see why the Tribunal ultimately formed the view that there were incongruities about it and that aspects of it were implausible (though it is evident also that some of the difficulties may have arisen from problems in the translation of questions and answers).  The Tribunal member did not, however, question the applicant closely about events in Sydney.  The applicant was not questioned at all about the claims that he had had a sexual relationship with a man in Sydney before he met his partner.  I have mentioned that the partner gave oral evidence.  Certainly he was not vigorously challenged.  His evidence was as follows:

    “Q.You have made declarations in relation to [the applicant’s] application to be considered as a refugee and to receive a protection visa to remain in Australia, is that correct?

    A.Yes.

    Q.You are living in a homosexual relationship with him?

    A.Yes.

    Q.In Sydney?

    A.Yes.

    Q.Since when?

    A.Our relation starts at the beginning of 1997.  …

    Q.I see.  And the relationship still continues?

    A.Yes.

    Q.And you both now try to avoid contact with other Bangladeshi people in Sydney?

    A.Yes.

    Q.The idea is that you wish to avoid trouble from other Bangladeshis who disapprove of your homosexual relationship?

    A.Yes.

    TRIBUNAL MEMBER:          No further questions.   Thank you.  …”

12. The applicant and his adviser might well have been excused, I think, for leaving the hearing with a clear impression that the applicant’s sexual orientation was unchallenged and that the Tribunal was not troubled about the claimed relationship between the applicant and his partner; and there was certainly no suggestion put to the applicant or his partner that they, together with the other Sydney man, had engaged in collaborative concoction.  Of course it is not true that the Tribunal may make adverse findings only about matters which it has squarely put to an applicant.  In this case, however, the applicant’s sexual orientation and practices were at the heart of his application, and, if it were open to the Court to review the Tribunal’s decision on the basis of a failure to accord procedural fairness to an applicant, I am by no means convinced that the present decision would have withstood review.

13. But Eshetu makes it quite clear that a failure to accord procedural fairness is not a ground of review under Pt 8 of the Migration Act. The basis on which the applicant first put his case – that the decision was reviewable on the ground in s 476(1)(a), on the footing that the Tribunal had failed to comply with s 420 of the Migration Act – fails in the light of Eshetu. Nor is it demonstrated that the Tribunal made an error of law of either of the kinds described in s 476(1)(e). The Tribunal directed itself correctly in relation to the content of the “real chance” test and it cannot be said that the Tribunal made an error in applying the test to the facts which it found. The applicant’s complaint does not relate to any reviewable legal error, but to the procedure adopted by the Tribunal in satisfying itself as to the factual basis of the applicant’s claim. The result is that the application for judicial review must fail.

    Conclusion

14. Accordingly, the application is dismissed with costs.

I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane.

Associate:

Dated:             14 July 1999

Counsel for the Applicant:	Mr P M Strain
Counsel for the Respondent:	Mr G T Johnson with Mr C D Jackson
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	7 May 1999
Date of Judgment:	14 July 1999