MMM v Minister for Immigration and Multicultural Affairs

[1998] FCA 1664

FEDERAL COURT OF AUSTRALIA

IMMIGRATION – review of decision of Refugee Review Tribunal – homosexual applicant has well-founded fear that family would disown him because of his homosexuality – not persecution for Convention reason – familial pressure to marry not “for reasons of” membership of social group constituting homosexuals – homosexual intercourse made criminal under Bangladeshi law – whether existence of discriminatory criminal law amounts to persecution – likelihood of police harassment not “for reason of” membership of particular social group and/or not persecution because of lack of an “official” character

Migration Act 1958 (Cth), ss 476(1)(a), (e), 420(2)(b)

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331, referred to
Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379, referred to

Z v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Katz J, 11 December 1998), referred to

Ram v Minister for Immigration and Multicultural Affairs (1995) 57 FCR 565, referred to

MMM v MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

NG 525 of 1998

MADGWICK J
SYDNEY
22 DECEMBER 1998

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 525  of   1998

BETWEEN:	MMM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT
JUDGE(S):		MADGWICK
DATE OF ORDER:		22 DECEMBER 1998
WHERE MADE:		SYDNEY

SHORT MINUTES OF ORDER

THE COURT ORDERS THAT:

1. The proceedings be re-entitled to describe the applicant as MMM.

2. The application is dismissed.

3. The applicant is to pay the respondent’s costs.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 525 of 1998

BETWEEN:	MMM APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT

JUDGE(S):	MADGWICK
DATE:	22 DECEMBER 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT

HIS HONOUR:  The applicant’s circumstances, like those of so many others claiming refugee status, must involve intense personal strain for him.  I have accordingly considered the matter on the broadest basis to see whether there was not some error having reviewable consequences which attended the decision of the Refugee Review Tribunal (“the Tribunal”) adverse to the applicant and of which he seeks judicial review.  Unfortunately for the applicant, I have concluded that there was no such error.

The applicant’s case:  a young Bangladeshi homosexual finds haven in Australia

The applicant is the younger son of a middle-class Bangladeshi family (I am deliberately blurring some of the potentially identifying details).  When the applicant was 16 or 17 his family came to Australia for a few years in connection with his father’s occupation.  His parents returned home but the applicant and his brother have lived here since.  He is now in his late twenties.

The applicant realised as a child that he was sexually attracted to boys rather than girls.  In Australia, while still at high school, he began to have homosexual experiences and his sexual life since has been homosexual.  He has been open about this whenever it has not seemed imprudent.  It did not seem prudent during two relatively short gaol terms he has served for drug-related offences.  His brother knows of his sexual orientation and continues fully to accept him, without difficulties.

The primary case put by the applicant was this:  

“… we [the applicant and his brother] are both agreed that my family in Bangladesh must never be told because they would certainly not accept me and would throw me out.  As yet, they still do not know of my criminal convictions.  If they became aware that I was homosexual, it would completely disgrace them in the eyes of other people in Bangladesh and they would almost certainly disown me.  Therefore, if I had to return to Bangladesh, the only possibility for my family would be for me to submit to their pressure to immediately marry and conform to the conservative family and religious traditions of Bangladesh society, which is something I simply cannot fit into.  I would be expected to have children and lead a ‘normal’ family lifestyle.

If my family became aware of my true identity, as I said I fear they would disown me.  I also fear others in society would become aware of my past and as a homosexual, if I practise my sexual identity, because I am a person who would be so obvious, the police would use every opportunity to persecute me and God knows what future would await me.  I find it hard to find words which would express my fears for my future and safety if I had to return to Bangladesh.  I plead with the Department to understand my predicament and to give me the opportunity of leading a proper life where I can give full expression to my true identity without fear of persecution.  This is possible in Australia which is a tolerant society which respects human differences.

I know the Department will have possibly little sympathy for me because of my mistakes and convictions.  I can only plead with the Department to be given a chance to prove that I am not the bad person that would be otherwise suggested.  Whilst I accept my fate in respect of my first conviction, I have asked my new solicitors to initiate proceedings to have the second conviction quashed on the basis that I believe I was the victim of improper practices of corrupt NSW police who have been exposed in the NSW Police Royal Commission.”

Bangladesh is, of course, a desperately poor country.  There was material before the Tribunal to indicate that the economic consequences of the applicant being discovered by his family, as he feared, might well extend to utter penury.

On the material accepted by the Tribunal, Bangladeshi law and the great majority of Bangladeshi people have what in the West would be fairly termed “homophobic” characteristics.  (The cultural differences are, however, profound and not obvious, as the variety of learned articles before the Tribunal made clear). The Tribunal found, in a manner that is unreviewable, that the chance that the law criminalising homosexual acts would be enforced against the applicant is “remote and insubstantial”.

Familial rejection

The Tribunal seems to have accepted that the applicant’s fears were well-founded.  For the applicant’s family to deny an adult child their support because they would feel shamed by his conduct and would deeply disapprove of it, notwithstanding that his conduct involves matters that, I assume, go to the essence of his being, is apparently not illegal in Bangladesh; nor is it illegal in Australia or, I should think, anywhere else.  Nor is it likely that any State would accept the responsibility of affording any person in the applicant's shoes either civil redress against his family or other amelioration of such a personal rift.  Accepting the applicant’s fears as well founded, he might at worst starve because his family might sever their relations with him. 

Whatever else such treatment of him may be, it cannot, in my opinion, be regarded as persecution within the meaning of the relevant Convention.  It is a purely private matter.  Persecution for the purposes of the Convention connotes some official approbation of the feared conduct, or at least official failure or inability to do something about it, when the general standards of civilised countries would entitle the putative refugee to the protection of the State:  Applicant A v Minister for Immigration and Ethnic Affairs (1997) 142 ALR 331 at 334 per Brennan CJ. There is nothing in such general standards to suggest that adults not under a disability have such an entitlement when, for private reasons, their families reject them.

Familial pressure to marry

It is to be assumed that it would be as deeply hurtful and intrusive for the applicant to submit, if returned to Bangladesh, to Bangladeshi social and familial norms requiring him to marry and procreate as it would be for a heterosexual person to be placed under overwhelming pressure to submit to a homosexual relationship.

While the impact of familial pressure to marry would likely fall harder on an unwilling homosexual than an unwilling heterosexual, it seems to me to be correct, as the Tribunal held, that the pressure is nevertheless not exerted “for reasons of” membership of the social group of homosexuals.  In Bangladsesh, the pressure falls on all single men, and it did not appear that it was applied differentially as between homosexuals and others.  For that reason, fear of Convention persecution was correctly held not to have been shown.

It was also argued that the “forcible marriage” of any person would amount to Convention persecution.  To consider this adequately, it would be necessary, among other things, to identify a relevant “particular social group”.  The case was apparently not put in this way to the Tribunal and there is no relevant finding.  The matter is difficult and cannot now be dealt with satisfactorily:  the time to raise the matter was when the case was before the Tribunal.  It is no error on the part of the Tribunal not to seek out and then consider ways of putting an applicant’s case which are not obvious, especially when the applicant was, as here, represented by a solicitor who furnished evidence of, among other things, his impressive credentials as a lawyer active in the promotion of human rights:  see Federal Commissioner of Taxation v Raptis (1989) 89 ATC 4994 per Gummow J; Secretary, Department of Social Security v Cooper (1990) 26 FCR 13 at 18.

The difficulties would include that the putative particular social group which might be seen as relevant would perhaps be single men of marriageable age and status.  These would, no doubt, include, for example, widowers, men keen to marry, misogynists, homosexuals, fathers and non-fathers, rich men and poor, devout Muslims and others, handsome men and ugly, those already engaged to be married and those not.  It seems at least an open question, about which no conclusion can here be drawn, whether, in Bangladeshi society, such an agglomeration would be cognisable as a particular social group.  In our own society it is doubtful whether, for example, bachelors constitute a particular social group.  Until the claimed persecution begins in relation to a person, one may not be able to say whether he or she is within or outside what may be the relevant group.  This would be fatal to its recognition as a Convention-sufficient group: Applicant A at 336-7.

Thus, if it be true that the Tribunal failed to deal, in the respects mentioned, with the true gravamen of the applicant’s case, or with an important alternative way in which his case was put, as was alleged, it does not avail the applicant.  Had this aspect of the case been considered, the Tribunal must, in my opinion, have rejected it.  The Tribunal would not have been able to conclude that there was a real chance that the potential harm to the applicant was for reasons of his membership of a particular social group.

Alleged failure to comply with s 420

It was submitted that certain factual findings were not “rationally supported by probative evidence” and that the Tribunal “failed to rationally consider the probative evidence that was before it”, which was said to constitute a failure to observe procedures that are required to be observed under the Act (ss 420(2)(b), 476(1)(a)) – see Epeabaka v Minister (1997) 150 ALR 397 at 406-7 per Finkelstein J. Assuming that case to have been correctly decided, in my opinion, the supposed instances of error are not made out. In particular, the applicant relied on s 377 of the Bangladeshi Penal Code to demonstrate the persecution of homosexuals through legal means. Section 377 states:

“Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with transportation for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.”

The applicant submits that the Tribunal failed to rationally consider evidence of the arrest and prosecution of homosexuals in Bangladesh which was given in support of the applicant’s claims.  However, there was, in my view, evidence to support the Tribunal’s finding that the chance that the applicant would be prosecuted because of his homosexuality was remote and insubstantial.  The same complaint was made about another finding, but the real burden of that matter was that the Tribunal had failed to deal with the applicant’s claim that his inability to “practise his sexual identity” would amount to Convention persecution for reasons of membership of the particular social group of homosexuals.  I have dealt with this complaint above.

Legal penalties for homosexual acts

It was next argued that the mere existence of a criminal law which would penalise certain homosexual acts (under the rubric of penalisation of supposedly “unnatural” sexual acts) necessarily amounted to official persecution of homosexuals, within the meaning of the Convention.  The argument was that such a law infringed the human right to privacy, recognised by the Universal Declaration of Human Rights and the International Covenant for Civil and Political Rights, as one from which States might only derogate for the purposes of an officially proclaimed, major public emergency (no such emergency existed here).  Therefore the case stood sufficiently high within the hierarchy of human rights violations identified by Hathaway, The Law of Refugee Status (Butterworths Canada Ltd, 1991) pp 109-113 as to call for its equation with persecution.  Accordingly, it was submitted, the Tribunal erred in that it incorrectly interpreted the meaning of “persecution” under the Convention, by failing to recognise that the criminalisation of homosexuality amounted to persecution (s 476(1)(e)).

With respect, such formalism ought not be imputed to the framers of the Convention.  There is, in ordinary language and common sense, a clear and cogent distinction between a mere infringement of an internationally recognised human right and persecution.  It is not, in my opinion, sensible to ignore matters of degree, nor were the framers of the Convention likely to have done so.  Many countries have some laws that are more honoured in the breach rather than the observance.  Commonly these deal with matters seen by some as concerning only questions of private morality but by others as concerning important questions of standards legitimately the subject of public laws.  As such they often raise questions of “human rights”.  Failure to enforce contentious laws is a common social lubricant.  The matter of the criminal law and homosexual acts itself furnishes an example:  in countries whose tradition is Western civilisation, private consensual homosexual acts were, until quite recently, generally penalised.  That is no longer so, but liberalisation (even for heterosexual fornication - see Z v Minister for Immigration and Multicultural Affairs (unreported, Federal Court of Australia, Katz J, 11 December 1998) has not been universal. The framers of the Convention were concerned with persecution of a kind which morally obliged civilised States to receive refugees, regardless of other restrictions those States might place on immigration. The fourth preamble to the Convention recognised that “the grant of asylum may place unduly heavy burdens on certain countries”. Merely to be legally stigmatised because the expression of one’s (legitimate) sexual desires is subjected to the theoretical possibility of a heavy penalty, without proof of a real chance of more substantial harm, is hardly likely to have been of great concern to States dealing with the consequences of the murderous excesses of Nazi Germany or Stalinist Russia, and with being obliged to exclude from access to refugee status persons suffering from natural disasters and other sources of profound misery.

The single-sentence summary in Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567 at 575 of McHugh J’s two page discussion in Chan Yee Kin v Minister for Immigration & Ethnic Affairs (1989) 169 CLR 379 of what might amount to persecution was relied on by the applicant. It ought not, in my view, to be taken as endorsement by a majority of the High Court of a view that any act “in disregard of human dignity” will suffice.  Throughout the relevant passage of his judgment in Chan McHugh J referred to “threats of harm”, “interference with . . . rights” in the sense of actual interference, “harm”, “serious violations of human rights” (emphasis supplied) and evidently approved other judicial formulations including “subjected to injurious action and oppression” and “the infliction of suffering a harm”.  This is not language suggestive that a merely formal infringement of rights would suffice (see also McHugh J’s remarks in Applicant A).  In my view, there was no distinction between what McHugh J appears to have had in mind and what Mason CJ referred to as “some serious punishment or penalty or some significant detriment or disadvantage”.  The sensible and necessary (but sufficient) requirement, in my view, is that some serious or significant, actual detriment or disadvantage or a real and reasonably proximate prospect of such detriment or disadvantage be shown.  I came to a like conclusion in Yesus v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, 9 July 1996).

Thus, if it were shown that a law penalising private consensual homosexual acts by loss of liberty was routinely enforced and that appreciable penalties were in fact imposed thereunder, such a process, in my view, would suffice to warrant its description as persecution within the meaning of the Convention.  Similarly, if it were shown that police were turning a blind eye to private violence perpetrated on homosexuals but not on other people.  However, that was not, as the Tribunal found, the case here.

I note that in Applicant A two members of the High Court (Dawson and McHugh JJ) and a Full Court of the Federal Court offered some guidance about whether laws of general application would amount to persecution, or persecution for a Convention reason.  The Full Court contemplated that “more” would be required.  Dawson J indicated that “something more” would be required and McHugh J said that “ordinarily” the Convention would not be attracted (see the discussion by Katz J in Z v Minister for Immigration and Multicultural Affairs).  In my opinion, enforcement of a law of the kind in question could constitute persecution of homosexuals.  There is “something more” and the law is not an “ordinary” one.  It does not appear to me that the Full Court or either Justice of the High Court intended to place outside the scope of Convention related persecution the operation of any law, however vile, provided that it was generally expressed, unless actually selective enforcement of it could be shown.  In some circumstances, the existence of the law, provided it seems likely to be enforced, even though the actual enforcement may not be selective, may indicate that the legislature as well as the executive of the country in question, was intending serious harm to a particular social group.

A law of the kind in question here, although generally expressed to apply to anyone who commits certain acts considered to be “against the order of nature” (or, in the former NSW expression, “abominable”) is in reality targeted at homosexuals and at some other persons.  Those others, considered together or in any partial combination, hardly constitute a “particular social group”.  Ordinarily, homosexuals would constitute a social group and the law is targeted at them as such:  homosexuality is generally conceived by those who advocate such laws to be one quite distinct and separate form which the supposedly unnatural behaviour takes.  Such a law, although in form one of general application, is in substance one of selective harassment.  The Court should not play Pilate in refusing to recognise such realities.  The intent of those who sustain the existence of the law and who may wish to have it enforced would not be different if the law took the form simply of generally forbidding homosexual acts:  the character of the law would, however, be clearer then.  If a criminal law, though generally expressed, is in the judgment of a competent Australian tribunal, in reality, nevertheless targeted at a “particular social group”, that may, depending on the general character of the law, its severity and the actual prospects of enforcement of it, suffice. 

Moreover, a law such as s 377 of the Bangladeshi Penal Code penalises behaviour which is both entirely private and of a kind which is, on one view, either instinctual, or, on another view, at least springs from impulses so deeply ingrained by socially determining factors, that such impulses have ceased to be regarded as medically pathological.  They therefore ought be seen as within the scope of the psychologically normal.  Such a law is not an “ordinary” one; it is something more.  It is the punitive invasion of something that is innate in, or should be recognised as the equivalent of something that is innate in, the very humanity of some normal individuals.  It involves the breach of a human right of privacy but the quality of its invasiveness of human dignity goes well beyond that.  If any serious harm comes or is apt to come (in the sense I have mentioned) to such individuals as members of a particular social group from this, it ought to be recognised as persecution for the purposes of the Convention.  It has been so recognised elsewhere, for example, in Germany:  Verwaltungsgerichthof Hessen (21 August 1996), cited in Hathaway at 163. 

McHugh J captured the relevant distinction between kinds of conduct (including conduct by making or maintaining laws) in Applicant A at 258:

“Conduct will not constitute persecution, however, if it is appropriate and adapted to achieving some legitimate object of the country of the refugee.  A legitimate object will ordinarily be an object whose pursuit is required in order to protect or promote the general welfare of the State and its citizens.  The enforcement of a generally applicable criminal law does not ordinarily constitute persecution.”  (emphasis added)

Invidious as it may be, and despite divisions of opinion, Australian decision-makers need to decide whether a law in the form of an ordinary criminal law is indeed “appropriate and adapted to achieving some legitimate object” of the country of the putative refugee.  Our own and generally accepted international canons of secular law cannot be put aside in making this judgment.

It is of course the case that many people in many countries profoundly disapprove of homosexual practices for religious or other reasons.  No doubt many of them consider that homosexuality threatens the fabric of the body politic.  Their rights to their moral views are not subjected to disrespect by this reasoning.  The laws of this country are secular and, in general, so were the laws of the countries whose representatives framed the Convention.  There is no identifiable and pressing social problem to which the attempted suppression by the criminal law of homosexual acts is “appropriate and adapted”.  If serious official harm is offered or threatened to homosexuals, because they wish privately to give expression to their sexuality, there is, in my view, no legal reason why, in particular circumstances, this might not amount to persecution.

However, in this case, all that was shown was the existence of the law and no evidence of its enforcement.  Nor was there any demonstration that in the moderately near future there was a real chance that the law might be pressed into service.  References to “increasing Islamisation” of Bangladesh need to be set against powerful religious and social factors (discussed in the literature referred to by the Tribunal) apparently tending to keep homosexual behaviour, along with many other sexual behaviours, quite unmentioned in a way that would appear to inhibit the publicity attending criminal prosecutions.

Possible police harassment

Certain possibilities raised by the applicant and found by the Tribunal, as I understand the decision, concerned police victimisation of persons choosing to be open about their predilection for the commission of homosexual acts.  Two ways in which such brutality might arise were identified:  extortion and violence arising from “homophobia”.  (I have added the punctuation to the term homophobia in deference to what I understand of the cultural differences:  it is not entirely clear that what Westerners understand as homophobia represents attitudes held by any significant number of people in Bangladesh.  Nothing turns on this for the purposes of the Tribunal’s decision.)  The Tribunal evidently took the view that there was no differential treatment of openly practising homosexuals as compared with other potential targets of police extortion.  In this circumstance, it seems to me that the Tribunal was right to conclude that any such persecution would not be “for reasons of” membership of the social group constituted by homosexuals.  Burchett J’s well-known remark in Ram v Minister for Immigration and Multicultural Affairs (1995) 57 FCR 565 at 569 was, in my view, properly relied on by the Tribunal: “extortionists are not implementing a policy; they are simply extracting money from a suitable victim”.

Likewise, the Tribunal evidently took the view that any police homophobia would not go beyond the private shortcomings of individual police officers and would not amount to a matter of official sanction or toleration of it, nor did it bespeak serious official inability to prevent it.  On that view, the Tribunal was correct to conclude that Convention persecution would not be involved:  what might be called the necessary official nexus is lacking.  No police force is without rogues.  Again, it is, in my view, a matter of degree.  I took a similar view about sporadic racism by individual police officers in Lal v Minister for Immigration and Multicultural Affairs (1996) 42 ALD 535 at 537.

Other matters

Purely factual criticisms were made of the Tribunal’s findings, but those are of no significance to the Court.  An odd phrase or two used in statements of legal principles was attacked but, in the context in which those statements were made, the criticisms were either misconceived or, in Kirby J’s phrase, merely “pernickety” – see Ex parte Abebe (1998) 151 ALR 711 at 714.

It ought to be unnecessary to say that this is of course a case limited by its own evidence.  As will be clear from what precedes this, I am far from saying that a person could never show refugee status because of persecution in his/her country of origin on account of sexual orientation.

Conclusion

For these reasons, the application for review will be dismissed with costs.

I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick

Associate:

Dated:            22 December 1998

Counsel for the Applicant:	N Poynder
Solicitor for the Applicant:	Parish Patience
Counsel for the Respondent:	S Lloyd
Solicitor for the Respondent:	Australian Government Solicitor
Date of Hearing:	31 August 1998
Date of Judgment:	22 December 1998