S135 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs

[2004] FCA 1521

FEDERAL COURT OF AUSTRALIA

S135 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1521

S135 OF 2003 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS & ORS

N2585 OF 2003

EMMETT J

16 JULY 2004

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N2585 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S135 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL
SECOND RESPONDENT

MICHAEL GRIFFIN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE OF ORDER:

16 JULY 2004

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.        Order 51A Rule 5(1) of the Federal Court Rules not apply.

2.        The application for an order nisi be refused.

3.        The applicant pay the Minister’s costs of the proceeding.

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	N2585 OF 2003

ON REMITTAL FROM THE HIGH COURT OF AUSTRALIA

BETWEEN:

APPLICANT S135 OF 2003
APPLICANT

AND:

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

FIRST RESPONDENT

PRINCIPAL MEMBER OF THE REFUGEE REVIEW TRIBUNAL

SECOND RESPONDENT

MICHAEL GRIFFIN, MEMBER OF THE REFUGEE REVIEW TRIBUNAL
THIRD RESPONDENT

JUDGE:

EMMETT J

DATE:

16 JULY 2004

PLACE:

SYDNEY

REASONS FOR JUDGMENT

1. The applicant claims to be a citizen of Bangladesh.  He arrived in Australia on 13 April 2000 and, on 16 May 2000, he lodged an application for a Protection (Class XA) Visa under the Migration Act 1958 (Cth) (‘the Act’). On 22 May 2000 a delegate of the first respondent, the Minister for Immigration & Multicultural & Indigenous Affairs (‘the Minister’), refused to grant a protection visa. On 2 June 2000, the applicant applied to the Refugee Review Tribunal (‘the Tribunal’) for review of the delegate’s decision. On 23 October 2002, the Tribunal, constituted by the third respondent, affirmed the decision not to grant a protection visa. Reasons for that decision were published on 14 November 2002.

2. On 12 December 2002, the applicant commenced a proceeding in the Court for review of the decision of the Tribunal.  On 13 March 2003, Branson J, for reasons that her Honour gave on that day, ordered that the application be dismissed with costs (see NAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 241).

3. On 11 April 2003, the applicant commenced a proceeding in the High Court of Australia by filing a draft order nisi and an affidavit in support.  By the draft order nisi, the applicant claimed orders that the Minister show cause why:

   • an injunction should not be raised prohibiting the Minister from removing the applicant from Australia;
   • a writ of mandamus should not be issued to the second respondent, the Principal Member of the Tribunal, directing the Principal Member to exercise the duty under s 414 of the Act to review the delegate’s decision of 23 May 2000;
   • an injunction should not be issued restraining the Principal Member from acting through the third respondent in complying with such writ of mandamus;
   • a writ of certiorari should not be issued to quash the decision of the Tribunal made on 23 October 2002.

4. The draft order nisi specifies as grounds that:

   • the third respondent did not follow the proper procedure required by the Act;
   • the third respondent’s decision was affected by an error of law, jurisdictional error and lack of procedural fairness;
   • there was no evidence or other material to justify the making of the decision;
   • the applicant was denied natural justice before the Minister’s delegate;
   • there was a constructive failure of jurisdiction by the Minister’s delegate in failing to address the correct legal question and by not applying himself to all the issues he was required to consider;
   • there was a failure by the Minister’s delegate to exercise jurisdiction;
   • the decision of the Minister’s delegate was made in breach of the rules of natural justice.

   No particulars were furnished of any of the grounds. 

5. In so far as the applicant seeks orders in respect of the decision of the Minister’s delegate, the claims are misconceived. The Tribunal’s decision is in effect the Minister’s decision under the Act. The delegate’s decision is no longer operative. In so far as the draft order seeks relief against the third respondent it is misconceived and the third respondent should not be a party.

6. On 20 August 2003, Heydon J made orders remitting the proceeding in the High Court to the Federal Court.  No further steps have been taken by the applicant.  However, on 16 June 2004, the Minister filed a motion seeking summary dismissal of the proceeding.  The basis of that application is that the proceeding is an abuse of process in so far as it seeks to re-litigate the same questions that were litigated before Branson J, or alternatively seeks to litigate questions that ought to have been raised and litigated before Branson J.

7. The reasons of the Tribunal record that the applicant claims to have used an Indian passport under a false identity to enter Australia.  The applicant claims to be a 30 year old single Bangladeshi citizen and to be a homosexual.  In a declaration submitted with his original application for a protection visa, the applicant claimed to have been expelled from his family home in 1996 after being discovered having sexual relations with a male domestic servant.

8. At a hearing before the Tribunal, when asked what harm he feared in Bangladesh, the applicant replied:

   ‘My family, my grandfather and great-grandfather are strictly and fanatically religious.  They are rich and well known.  I will be bound to follow the religious custom and forced to get married.  If I deny somehow that may lead to terrible consequences and my mother might commit suicide.’

9. The Tribunal referred to independent evidence concerning the position in Bangladesh regarding homosexuality.  In particular, the Tribunal referred to a report to the effect that Article 377 of the Penal Code provides that homosexuality is punishable with deportation, fines and prison sentences, but that those laws are hardly ever used.  The Tribunal also referred to a report from the Australian Department of Foreign Affairs and Trade of 1995 that nobody has ever been prosecuted for homosexuality in Bangladesh, and that homosexuality still has a very low public profile in Bangladesh. 

10. The Tribunal said that the applicant claimed to fear persecution for two reasons, namely, homosexuality and religion.  He claimed that his sexual activities and his involvement in western music were seen as offensive to Islam and would attract the ire of his family members, some of whom are Islamic fundamentalists. 

11. The Tribunal did not accept the applicant’s claims.  Having observed him give oral evidence over a lengthy period, the Tribunal was not satisfied that the applicant was a reliable witness.  The Tribunal found explanations given by the applicant of inconsistencies on matters such as his place of residence and his employment were unconvincing.  However, the Tribunal was prepared to accept that the applicant is homosexual.

12. The Tribunal referred to the applicant’s claim to fear harm from Muslim fundamentalists because of his involvement in Western music.  However, the Tribunal observed that the applicant had worked in a recording studio for two years and that there was nothing to indicate that he experienced any harm from anyone because of his musical activities.  The Tribunal was not satisfied that the applicant was at risk of harm on religious grounds for his involvement in Western music.

13. As to the applicant’s homosexuality, the Tribunal referred to his evidence that he had lived in a homosexual relationship for two and a half months before leaving Bangladesh without experiencing any harm or discrimination.  There was no suggestion that, during that time, the applicant and his partner lived otherwise than openly.  Prior to that, the applicant was asked to leave his accommodation by his roommates when they became aware of his homosexual activities.  While the Tribunal accepted that that could be upsetting, it was not satisfied that it amounted to persecution.  The Tribunal did not accept the applicant’s evidence that he lost his job when his employer became aware of his homosexuality.  The Tribunal referred to inconsistency in the applicant’s evidence about his employment termination.  The Tribunal was not satisfied that the applicant was telling the truth about that matter. 

14. The Tribunal found that the principal harm feared by the applicant because of his sexual preference is the disapproval of his family and the threat of suicide by his mother if he did not marry.  The Tribunal observed that the applicant’s mother had not followed through on the suicide threat she made some four years ago.  Nevertheless, the applicant claimed that she would do so if he returned.  While the Tribunal accepted that that would be upsetting, it was not satisfied that family disapproval and the maternal threat of suicide, which the applicant apparently experienced for some years before leaving Bangladesh, amounted to persecution for Convention purposes.

15. The Tribunal noted that the only action taken against the applicant was to expel him from the family home.  The Tribunal did not accept that there is a real chance of harm from his family or anyone else.  The Tribunal was satisfied that independent evidence from reliable sources indicated that homosexuals are not prosecuted.  It considered that there was no reliable evidence from the applicant that he had ever experienced any serious harm because of his sexuality.

16. In the proceeding heard by Branson J, the applicant sought constitutional writs on the following grounds:

    • the Tribunal did not follow the proper procedures as required by the Act;
    • the Tribunal decision was affected by an error of law and jurisdictional error;
    • there was no evidence or other material to justify the making of the decision;
    • the Tribunal member made its decision in bad faith;
    • there was a constructive failure of jurisdiction as the Tribunal failed to address the correct legal question committed to it by not applying itself to all the issues it was required to consider in determining the matter.

17. By his amended application to Branson J, the applicant made the following claims:

    • the Tribunal failed to exercise its jurisdiction;
    • the decision involved an error of law;
    • the decision was not authorised by the Act.

18. Branson J recorded that, as to each of those three grounds, the particulars given raised the issue that the Tribunal failed to consider whether, if the applicant’s mother were to carry out her threat to commit suicide, that could constitute persecution within the meaning of the Refugees Convention.  Written submissions were prepared on the applicant’s behalf by a legal advisor.  Those submissions dealt only with the issue of the applicant’s mother’s threat of suicide.  After reference to relevant authorities, her Honour concluded that the harm to the applicant involved in his mother’s threat to commit suicide and in her carrying out that threat would not amount to persecution within the meaning of the Convention.  That harm involved no element of persecution by the state of Bangladesh or its agents.  No complaint was made that Bangladesh, by reason of some Convention ground, would not provide protection to the applicant against his mother’s threat of suicide or her actual suicide.  Accordingly, her Honour dismissed the application.

19. As I have indicated, no particulars were furnished of the grounds asserted in the draft order nisi.  The applicant says, however, that he wants his case reconsidered in the light of the decision of the High Court in Appellant S395 of 2002 v the Minister [2003] HCA 71. That case was argued in the High Court on 8 April 2003. The applicant said that he became aware of it by finding a reference to it on the Internet. That prompted his commencement of the further proceeding in the High Court on 11 April 2003.

20. When the motion for summary dismissal first came before me, on 9 July 2004, the applicant indicated that he required further time to prepare his submissions concerning the application of the High Court’s decision in Appellant S395 of 2002.  I therefore adjourned the hearing of the motion to today, when the applicant provided detailed written submissions.  In essence, the submissions assert that the circumstances of the applicant’s case are the same as those in Appellant S395 of 2002.  That assertion, however, is misconceived.

21. The majority in Appellant S395 of 2002 concluded that the Full Court of this Court erred in failing to order that a decision of the Tribunal relating to Bangladeshi homosexuals be set aside.  The majority concluded that the Tribunal made errors of law in applying the definition of ‘refugee’ to the appellants in that case.  Thus, the Tribunal erred in impliedly dividing homosexual men into two particular social groups, discrete and non-discrete.  It failed to consider whether the need to act discretely to avoid the threat of serious harm constituted persecution, and failed to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals. 

22. The majority concluded that the Tribunal was in error in not addressing the fundamental question of whether there was a well-founded fear of persecution.  The Tribunal did not consider whether there was a real chance that the appellants would be subjected to any of the more serious forms of harm that the Tribunal accepted a person would face if that person attempted to live openly as a homosexual in Bangladesh.  The Tribunal failed to consider whether subjection to any of those more serious forms of harm would amount to persecution.

23. The applicant had legal advice in connection with the submissions that were made in the proceeding.  There was no complaint before Branson J that the Tribunal adopted an erroneous view as to the meaning of ‘refugee’.  Further, the applicant made no attempt to appeal from the orders made by Branson J.  That course was open to him.  Even if the date of commencement of the fresh proceeding in the High Court was beyond the time limited for filing a notice of appeal, it was not far out of time.  There has been no application for extension of time for filing notice of appeal form the orders of Branson J.

24. The applicant did not advance before the Tribunal any assertion that he was at risk in Bangladesh if he openly engaged in a homosexual relationship and that he was required to act discretely.  The only case advanced, so far as concerned his sexuality was that he feared the disapproval of his family and the possible suicide of his mother. That assertion was fairly dealt with by the Tribunal, as Branson J held.  In all of the circumstances, I consider that it would be futile to allow this proceeding to continue to a final hearing.

25. The draft order nisi and affidavit in support filed in the High Court on 11 April 2003 disclose no arguable case for any relief.  I do not consider that the decision of the High Court in Applicant S395 of 2002 suggests any error on the part of Branson J.  Even if it did, the appropriate course would have been to seek leave to appeal out of time from the orders of Branson J. 

26. Further, the delay from the time of the Tribunal’s decision to the commencement of the proceeding in the High Court would be a reason for refusing constitutional writ relief in any event.  The only explanation, of course, is that the applicant was litigating the very question of the validity of the Tribunal’s decision in this Court.  That emphasises the complaint of the Minister that the present proceeding is an abuse or is frivolous. 

27. On the material presently before the Court, it would be appropriate to refuse an order nisi.  Order 51A r 5(1) should not apply to the proceeding.  The respondent’s notice of motion for dismissal of the proceeding should succeed.

I certify that the preceding twenty-seven (27) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:            24 November 2004

The applicant appeared in person.
Solicitor for the Respondent:	R White, Sparke Helmore
Date of Hearing:	16 July 2004
Date of Judgment:	16 July 2004