SZAHV v Minister for Immigration - [2004] FMCA 28

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAHV v MINISTER FOR IMMIGRATION

[2004] FMCA 28

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Ghana due to his homosexuality – RRT decision based partly on a finding that the applicant would live discreetly in Ghana – this was a jurisdictional error – whether Court should refuse relief in the exercise of discretion considered – not inevitable that a re-hearing would lead to the same result.

Migration Act 1958 (Cth)

Appellant S395 of 2002 v Minister for Immigration [2003] HCA 71

MMM v Minister for Immigration (1998) 90 FCR 324

Applicant:

SZAHV

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ452 of 2003

Delivered on:

28 January 2004

Delivered at:

Sydney

Hearing date:

28 January 2004

Judgment of:

Driver FM

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr R Bromwich

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Court declares that the decision of the Refugee Review Tribunal made on 18 February 2003 and handed down on 11 March 2003 is invalid and of no effect.
A writ of certiorari shall issue, quashing the decision of the Refugee Review Tribunal.
A writ of mandamus shall issue, requiring the Refugee Review Tribunal to redetermine the matter according to law.
The respondent is to pay the hearing fee of $327 or obtain a waiver within 28 days.
The Court directs that the transcript of today’s hearing be obtained for the Court’s purposes.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ452 of 2003

SZAHV

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 18 February 2003 and handed down on 11 March 2003. The RRT affirmed a decision of a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant is from Ghana and claimed persecution by reason of his homosexuality.
The relevant general background facts relating to the application for a protection visa and the RRT’s decision on it are set out in paragraphs 1-4 of written submissions prepared by Mr Bromwich on behalf of the Minister. I adopt those paragraphs for the purpose of this judgment:
On 18 May 2001, the applicant, a citizen of Ghana, arrived in Australia. On 2 July 2001 he applied for a protection (Class XA) visa. The basis for the application was a claimed fear of persecution by reason of his homosexuality and an assertion that he could not get protection from the authorities (court book, page 27).
On 31 July 2001, a delegate of the respondent wrote to the applicant advising him that information provided by the Department of Foreign Affairs and Trade indicated that while homosexuals were discriminated against in Ghana, this did not amount to persecution, and inviting him to comment (court book, 35). On 31 August 2001, the applicant’s migration agent provided a submission in response to the delegate’s letter (court book, page 37).
On 6 September 2001 the delegate refused the grant of a protection visa (court book, page 44). On 21 September 2001, the applicant filed an application for review with the RRT (court book, page 51).
On 11 March 2003 the RRT handed down a decision made on 18 February 2003, affirming the delegate’s decision to refuse the grant of a protection visa. In reaching this decision and finding that it was not satisfied that there was a real chance that the applicant would be subjected to serious harm amounting to persecution for a Convention reason, the RRT:
a)accepted that the applicant was a practising homosexual (court book, 79.9), and that he was a member of a particular social group (court book, page 80.4);
b)accepted that any harm he might suffer by reason of his homosexuality would be for a Convention reason (court book, page 80.4);
c)noted that the applicant had elected to live an extremely quiet lifestyle in Australia, had not socialised amongst the gay community here, had no gay friends apart from his partner and rarely attended gay venues, such that his choice and personal need had not entailed an extroverted or openly gay lifestyle (court book, page 80.5);
d)did not accept that the applicant encountered difficulties to the extent claimed (court book, page 81.2);
e)accepted that homosexual activity between consenting adults may amount to a misdemeanour in Ghana, but could find no evidence that this law is ever enforced (court book, page 81.4);
f)could find no evidence that there is persecution of homosexuals within the legal system and was not satisfied that there was any well-founded fear of persecution by reason of the operation of legal institutions (court book, page 81.5);
g)did not accept that the applicant was at risk of serious harm because of the use of Sharia law within the Muslim community (court book, page 81.6);
h)noted that the applicant had chosen to distance himself from the Muslim community in Australia and did not accept that he would be compelled to engage with the Muslim community should he return to Ghana (court book, page 81.8);
i)was satisfied that the applicant could live the same lifestyle in Ghana as he does in Australia and did not accept that he would come to attention of the authorities if that continued (court book, pages 82.5, 83.7);
j)accepted that there would be family difficulties, but did not accept that family ostracism was sufficient to amount to persecution and did not accept that his family had attempted to murder him (court book, page 82.6);
k)could not be satisfied that there was a real chance the applicant would encounter difficulties, but even if he did need to take some precautions did not consider this need of itself amounts to persecution (court book, page 83.3);
l)did not accept that the police would refuse to provide protection (court book, page 83.4);
m)did not accept that the applicant would in fact tell prospective employers about his homosexuality (court book, page 83.8), but even if he did need to refrain from mentioning his homosexuality was not satisfied this amounted to persecution (court book, pages 83.9 – 84.1).
The application for review asserts an error of law on the basis of the use by the RRT of country information. At the outset of the proceedings I indicated that I considered it unlikely that the applicant could succeed on the basis of the application as framed.
I see no error of law in the use of country information by the RRT, in particular, to the extent that country information was determinative of the outcome of the proceedings before the RRT. The applicant was given a fair opportunity at the RRT hearing to comment upon issues derived from that country information that were adverse to his application. In my view, the proceedings before the RRT were fair. There is no other basis upon which it is apparent to me that the use of country information by the tribunal could give rise to any error of law.
As I indicated at the outset of the hearing today, in my view, this case falls to be determined by reference to the decision of the High Court in Appellant S395 of 2002 v Minister for Immigration [2003] HCA 71. Notwithstanding that the issue was not raised by the applicant in his application, I considered it appropriate to determine this case by reference to the High Court's decision. First, the decision of the High Court is obviously relevant. Secondly, the decision postdates the application for review. Thirdly, the applicant is self represented and, as was obvious from the hearing today, he was in no position to put legal arguments on his own behalf.
The Minister, through her lawyers, has properly identified the High Court's decision as a decision of relevance. Mr Bromwich anticipated that the High Court decision would probably be discussed and was prepared to deal with it in his oral submissions. Mr Bromwich seeks to distinguish this case from the case of Appellant S395 of 2002 on several bases. Mr Bromwich submits that in this case the RRT did not fall into error in that it simply approached the matter on the basis of a voluntary choice made by the applicant to live discreetly as evidenced by his behaviour in Australia.
This issue was dealt with by the presiding member in his reasons at page 80 of the court book. The presiding member said:
I accept that homosexuals are capable of forming a particular social group in some societies. I accept that the Applicant is a member of a particular social group. I accept that any harm the Applicant might suffer for reason of his homosexuality is for a Convention reason. However in the light of all the evidence before me, I find that there is no real chance that the Applicant is someone who would not be at risk of serious harm. I find that any fear the Applicant may have of persecution for any Convention reason upon return to Ghana is not well founded.
I note that the Applicant has lived what appears to be an extremely quite lifestyle in Australia. The Applicant has not socialised among the gay community but in a relative isolation in a local community. The Applicant said he has no gay friends other than his partner with whom he has lived for about 2 years. He has not made friends in Sydney with persons apart from his partner, who he appears to know relatively little about, even though they have lived together two years. It is his evidence that he does not socialise with other homosexuals and rarely attends gay venues. Given that the Applicant has the opportunity in Sydney to live a life relatively unrestricted by social prejudices but chose not to I am satisfied that the Applicant has no need to live an extroverted or openly gay lifestyle should he return to Ghana.
This indicates to me that the presiding member fell into the first legal error identified by the majority of the High Court in Appellant S395 of 2002. At paragraph 18 of that decision their Honours McHugh and Kirby JJ said:
The questions in these appeals are whether the Tribunal erred in law:
·     by impliedly dividing homosexual men into two particular social groups - discreet and non-discreet homosexual men;
·     by failing to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution; and
·    by failing to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals.
At paragraph 19, Their Honours said:
In our opinion, the Tribunal erred in law in each of these respects.
The first of those issues is dealt with by Their Honours from paragraph 55 of the decision. Their Honours stated:
In our opinion, the Tribunal also fell into jurisdictional error by failing to consider the issue of persecution in relation to the correct "particular social group". As we have indicated, the Tribunal found that homosexual men in Bangladesh constituted a "particular social group" for the purpose of the Convention. As a matter of law, this finding was open to the Tribunal. Indeed, if the Tribunal had held otherwise, its decision would arguably have been perverse. However, by declaring that there is no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal has effectively broken the genus of "homosexual males in Bangladesh" into two groups - discreet and non-discreet homosexual males in Bangladesh. This inevitably invited error…
At paragraph 56, Their Honours went on:
Similarly, in this case, consciously or unconsciously, the Tribunal directed its mind principally to the consequences of the sexual behaviour of the non-discreet members of the particular social group. Certainly, it made only passing reference to other forms of harm to members of the social group generally. And it failed to consider whether the appellants might suffer harm if for one reason or another police, hustlers, employers or other persons became aware of their homosexual identity. The perils faced by the appellants were not necessarily confined to their own conduct, discreet or otherwise.
At paragraph 59, Their Honours stated:
It follows that whether or not a Bangladeshi male homosexual applying for a protection visa has a well-founded fear of persecution cannot be determined by assigning him to the discreet or non-discreet group of homosexual males and determining the probability of a member of that group suffering persecution. An applicant claiming refugee status is asserting an individual right and is entitled to have his or her claim considered as an individual, not as the undifferentiated member of a group.
The finding made by the RRT in the case before the High Court is set out at paragraph 21 of the decision. The RRT in that case found that the appellants were homosexuals and that in Bangladesh homosexual men are a particular social group for the purposes of the Convention. It also found that while living in Bangladesh, the appellants had suffered no serious harm by reason of their homosexuality. The RRT said that they had clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now.
Accordingly, the RRT held that the appellants had no well founded fear that they would be persecuted if they returned to Bangladesh and that therefore, they were not refugees within the meaning of the Convention entitled to a protection visa under the Migration Act 1958 (Cth) (“the Migration Act”).
The finding that I have quoted by the RRT in this case is similar, except that it relates to the applicant's conduct in Australia rather than in his home country. Mr Bromwich submitted that it was a lawful approach for the RRT to note what the applicant had actually done in terms of his lifestyle in order to determine his risk of serious harm. In his submission, while it would not be a proper approach to determine that it was open to an applicant to live discreetly in circumstances where the applicant had not voluntarily chosen to do so, it would be legitimate and, indeed, it was legitimate in this case for the RRT to assess the risk of harm based upon the lifestyle choice voluntarily adopted by the applicant.
The main difficulty I have with that submission is that in order to approach that issue the RRT necessarily sub-categorised homosexuals into those who live discreetly and those who do not. The High Court has found that that is not a proper approach to the assessment of persecution of homosexuals. It is an erroneous sub categorisation of the particular social group.
In his submissions, Mr Bromwich drew an analogy between homosexuality and political activity. It is common for tribunals to determine that a member of a political party would not suffer persecution in his or her home country because they had a low profile. It would seem to follow from that submission that it is legitimate for the RRT to distinguish between high profile and low profile political activists. It appears to me from the High Court decision that the same approach is not open to a tribunal in relation to homosexuals. It is difficult for me to distinguish between the two situations. Perhaps the distinction might be made clearer in a later case. Nevertheless, I am bound by the High Court decision. I find that the RRT in this matter committed an error of law going to its jurisdiction by impliedly sub-categorising homosexuals into those who live an extroverted or openly gay lifestyle and those who do not.
That finding is sufficient to dispose of this application. However, it is possible that I am wrong. In the light of that possibility, I will go on to consider Mr Bromwich's other submissions. Mr Bromwich submits that another distinguishing feature of this case is that the RRT considered properly the risk of harm faced by gays in Ghana whatever their lifestyle. In other words, in Mr Bromwich's submission, the RRT did not fail to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution because there was no risk of persecution, in any event.
Likewise, Mr Bromwich submits that the RRT did not fail to consider whether the applicant might suffer serious harm if members of the Ghanian community discovered that he was a homosexual. This was on the basis of the assessment of country information by the RRT about the risk of harm faced by homosexuals in Ghana generally and also, based upon the RRT’s assessment of the availability of effective State protection.
There are some similarities between the situation in Ghana and the situation in Bangladesh. It appears that the relevant penal code applying to homosexuals is effectively the same. It also appears that the criminal code is rarely, if ever, enforced in either country. In the circumstances, in either case, it was not open to the applicant to assert persecution simply upon the risk of being prosecuted.
In both Appellant S395 and this case, the applicants were found to have in part fabricated or to have exaggerated the harm suffered by them in their home communities. In Appellant S395 the RRT accepted claims by the appellants that they were shunned by their families because of their homosexuality and that they may have been the subject of gossip and taunts from neighbours who suspected that they were homosexuals. The RRT found that the shunning and gossip and taunts did not constitute serious harm amounting to persecution.
The High Court found that the RRT fell into error in failing to consider whether the need to act discreetly itself constituted persecution; and secondly, in failing to consider whether the risk of harm in the form of bashings and blackmail and the like also constituted persecution.
At paragraph 52 of their joint judgment McHugh and Kirby JJ stated:
The Tribunal did find, however, that to attempt to live openly as a homosexual in Bangladesh "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 finding appears to be based on an acceptance of the evidence of Mr Khan, the Executive Director of the Naz Foundation. In its reasons, the Tribunal recorded Mr Khan as saying:
"[T]he consequences of being identified as homosexual vary enormously, from acceptance and tolerance, to harassment, physical abuse or expulsion from the community. Most of the harassment of males who have sex with males takes the form of extortion by local police and hustlers who threaten to expose them to their families if they do not cooperate."
At paragraph 53 Their Honours stated:
The Tribunal's findings on the attitude of Bangladesh society and the statements of the appellants indicate that they were discreet about their relationship only because they feared that otherwise they would be subjected to the kinds of discrimination of which Mr Khan spoke. If the Tribunal had found that this fear had caused them to be discreet in the past, it would have been necessary for the Tribunal then to consider whether their fear of harm was well-founded and amounted to persecution.

Further on in the paragraph Their Honours stated:
Because the Tribunal assumed that it is reasonable for a homosexual person in Bangladesh to conform to the laws of Bangladesh society, however, the Tribunal disqualified itself from properly considering the appellants' claims that they had a "real fear of persecution" if they were returned to Bangladesh.
In this matter the RRT made the following findings of relevance. At page 82 the presiding member stated:
The Applicant's lifestyle in Australia is such that he now lives a quietly unassuming lifestyle and I am satisfied that he can do the same in Ghana. I do not accept that he will come to the attention of authorities, family or community in Ghana unless he chooses to do so should he continue to live in the same quiet way he does here in Australia.
I accept that the Applicant may well face difficulties from his parents and from parts of his wider family or village community. I do not accept that in his circumstances that this gives rise to a fear of persecution.

The presiding member then went on to reject as untruthful several claims of serious harm made by the applicant. The presiding member added:
In any event I do not accept that rejection or ostracism by his family is sufficient to constitute persecution.
The RRT found, based upon the Federal Court decision in MMM v MIMA (1998) 90 FCR 324 that familial rejection cannot be regarded as persecution within the meaning of the Convention as it is purely a private matter.
I accept the validity of that finding by the RRT based upon the Federal Court decision. However, at page 83 of the court book the presiding member stated:
The Applicant said problems will also arise for him with the community generally. The Applicant said he could be banned from his village as indicated by DFAT, discriminated against by his family and community and be unable to live an openly gay lifestyle. However, on the evidence before me I cannot be satisfied that there is a real chance that the Applicant will encounter difficulties in the reasonably foreseeable future. Even if he may need to take some precautions to ensure his safety I do [not] consider that the need for such a precaution of itself amounts to persecution for a Convention reason.
The presiding member did not elaborate on what those precautions might be. However, I infer from the reasons as a whole that the presiding member had in mind that the applicant would seek to avoid coming to adverse attention by either concealing his homosexuality or not advertising it.
The country information in relation to the treatment of homosexuals in Ghana bears some similarities with that available in relation to Bangladesh. Generally, the community prefers not to acknowledge the existence of homosexuality and turn a blind eye to it. However, in the larger cities in Ghana, in particular Accra, it seems that there is no real impediment upon homosexuals living an openly gay lifestyle. In that respect, the situation of homosexuals in Ghana appears to be somewhat better than the situation for homosexuals in Bangladesh.
The same cannot be said of smaller rural communities where attitudes are more conservative. The RRT acknowledged that the applicant could face problems in his local community. The applicant, like the appellants in Appellant S395 had complained of ostracism and bashings. The RRT did not accept that the applicant had come to serious harm so far but the risk remained that he might do. The country information available to the RRT and referred to in its reasons indicates the distinction drawn between the city lifestyle and the rural lifestyle. At page 76 of the court book the presiding member quotes a letter from a gay activist serving in Ghana. In that letter the activist states:
I knew when I agreed to come to Africa that I was looking at two years of celibacy and sexual isolation. The reality of the experience however exceeds any ability I might have had to imagine it. It is as if each time I return to the village from Accra, a fundamental part of me ceases to exist.
I find that the RRT acknowledged a risk of harm potentially faced by the applicant in his local community. I find that the RRT concluded that the applicant could avoid that risk of harm by taking measures for his own protection. The only measures that appear open to the applicant from the reasons for the RRT decision are to live secretly or discreetly. The disposition of the applicant to live discreetly is based upon what he has done in Australia. The presiding member found that the applicant had no reason to live discreetly in Australia if he did not wish to.
However, a University of New South Wales psychological assessment on the applicant referred to at page 69 and 70 of the court book indicates that the applicant was frightened. The psychologist stated under the heading "Clinical Presentation":
He appeared frightened when disclosing that he is concerned that Australian community members may reject him due to his homosexuality. [The applicant] was visibly distressed when explaining that despite his efforts to hide from his family and community in Ghana, he continued to suffer relentless harassment, ostracism and threats to his life.
Further, the applicant explained to the RRT that he had not pursued attendance at the mosque in Australia because he has a fear from his experience in Ghana and he did not know the situation in Australia. That explanation renders questionable the presiding member's conclusion that the applicant had made a purely voluntary choice to adopt a quiet lifestyle. In any event, the presiding member failed to consider what would happen to the applicant in his local community if his efforts to live quietly were unsuccessful.
This failure, in my view, amounted to a constructive failure to exercise the jurisdiction of the RRT. It was necessary for the RRT to consider what harm the applicant would face if he were outed or if he chose to out himself. There was material before the RRT which might properly have led it to the view that he would suffer serious harm amounting to persecution in those circumstances in his local rural community. In that event it would have been necessary for the RRT to consider whether the applicant could relocate to a safe location within Ghana such as Accra. There was no such consideration.
Mr Bromwich submits that no error was made by the RRT. He bases that submission on the proposition that the RRT found that effective State protection is available in Ghana and, accordingly, even if the applicant might suffer harm in his local community he could avail himself of that protection.
I do not accept that submission. First, it depends upon the availability of assistance from the police force, which the RRT found is corrupt. The RRT found that the police would not fail to protect the applicant simply because he was homosexual. That is not the same thing, however, as finding that the police will offer effective protection to someone who is unable to pay a bribe. Secondly, the RRT referred to the applicant having access to the Ghanaian Human Rights Commission. While that access may be an effective right in a large city, it does not follow that the theoretical right of access to the Human Rights Commission would have any value in a remote rural community.
In the circumstances, I find that the limited finding made by the RRT on the availability of effective State protection does not provide a complete answer to the application.
The remaining question is whether, notwithstanding my finding of jurisdictional error, relief should be refused in the exercise of discretion on the basis of futility. It is distinctly possible that if this matter is reheard by the RRT the same conclusion could be reached on a different basis. In particular, it would seem to be open to a tribunal to find that the applicant could avoid a risk of serious harm by relocating to a large urban community. However, I cannot say that that outcome would necessarily follow.
In the circumstances, given the legal errors going to jurisdiction that I have identified, the matter should be returned to the RRT for rehearing.
There is, as I understand it, an unresolved issue about the jurisdiction of this Court to grant a constitutional writ. In view of that unresolved question, in addition to prerogative relief, I will also grant declaratory relief. I will order that Court declares that the decision of the RRT made on 18 February 2003 and handed down on 11 March 2003 is invalid and of no effect; a writ of certiorari shall issue quashing the decision of the RRT; and a writ of mandamus shall issue requiring the RRT to redetermine the matter according to law.
On the issue of costs, I note that the applicant is self represented. The applicant has not incurred any costs to date in representing himself. He was liable to pay a setting down fee for the hearing of this matter, but I am told that he has not paid it. Should he have paid that setting down fee it would have been a recoverable disbursement. In the circumstances of this matter, I will order that the respondent pay the setting down fee payable for the hearing of this matter or obtain a waiver within 28 days. There will be no other order as to costs.

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 6 February 2004