SZANS v MIMIA

[2005] HCATrans 674

[2005] HCATrans 674

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S153 of 2005

B e t w e e n -

SZANS

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 2 SEPTEMBER 2005, AT 12.10 PM

Copyright in the High Court of Australia

MR L.J. KARP:   May it please your Honours, I appear for the applicant.  (instructed by Parish Patience Immigration, Lawyers)

MR R.J. BROMWICH:   May it please your Honours, I appear for the respondent.  (instructed by Clayton Utz)

HAYNE J:   Yes, Mr Karp.

MR KARP:   Your Honour, this application raises issues as to the proper functions and duties of the Refugee Review Tribunal and by extension the Migration Review Tribunal.  It arises from the circumstances of the applicant being a homosexual who said he would be under intense pressure to marry in his native Bangladesh.  As a homosexual he was concerned, to use the neutral term, about this.

Your Honours, if I could take you to page 72 of the application book.  At about line 45 the applicant said in his application for refugee status:

This –

that being marriage –

will create an impossible situation for me and the poor woman forced to marry me.  How can I be forced to live this miserable existence?  See statement to follow.”

The applicant’s principal argument was put squarely, and rejected by the Full Court, at page 73 of the application book.

HAYNE J:   Now, do I understand the essence of the claim made by the applicant to be that he was under family pressure to marry?

MR KARP:   Family and society, your Honour, both.

HAYNE J:   And what is said about societal pressure or its consequence?

MR KARP:   What was said, your Honour, was there is an intense expectation upon all males to marry – in fact, all people to marry and procreate.

CALLINAN J:   What would have been the persecution?  What was the evidence of persecution by society for a failure to marry?

MR KARP:   Your Honour, the point was not what the persecution was by society as a failure to marry.  It was the consequences of succumbing to the pressure to marry and that would, for a homosexual being engaging in an intimate heterosexual relationship against his nature to ‑ ‑ ‑

HAYNE J:   I understand that, but where is the persecution for a Convention reason, which must be the path that ultimately has to be trodden to get into the refugee definition?

MR KARP:   It is persecution as a homosexual, being the membership of a particular social group.  The persecution – the nexus is ‑ ‑ ‑

CALLINAN J:   Unwilling participation in a heterosexual marriage.

MR KARP:   Yes, including ‑ ‑ ‑

CALLINAN J:   You say that is the persecution.

MR KARP:   Yes, including sex with – especially sex with a woman.  The Convention nexus arises from the differential impact of succumbing to the pressure on a homosexual as opposed to a heterosexual.  Your Honours, at page 73 of the application book, the applicant’s primary contention was put and rejected by the Full Court.  The Full Court said that:

Counsel for the respondent urged upon us the proposition that once there was a finding that the respondent would be pressured to marry –

as there was at page 27 of the application book, where the Tribunal said at about line 6 or 7:

I find the material compelling and accept that in that society it is the social norm that all people marry and that this is expected by families.

I also accept that this would be difficulty for a Gay person.

However, what is of relevance in the current matter is whether or not the pressure to marry would amount to persecution and whether it would be motivated by a Convention reason.

Now, the argument before the Full Court was that once the Tribunal found that there was pressure to marry, it could not leave the question there.  It had to go on and decide what would be the consequence of that pressure.  Would the applicant succumb or would he not?  He did not in this case say he would, and he did not say he would not – possibly, as I have submitted, because he did not know.  But having posed the question, in my submission, the Tribunal had to go on and answer it to exercise its jurisdiction.

Now, the Full Court said at paragraph 47 at page 73:

the [Tribunal] was not obliged to deal with a hypothesis that was not raised –

In my submission, it was raised at least by implication, and raised by, at the very least, the findings of the Tribunal.  Your Honours, the reason why the Tribunal, in my submission, was obliged to address the issues which it itself raised, and which itself decided, stem from the nature of the Refugee Review Tribunal.  It is, as I submitted in writing, a body to which there was only one party to the application; that is, the applicant himself.

The Tribunal itself is the judge, the jury and the inquisitor.  It has an ability to obtain information for itself, that is section 424(1) of the Migration Act, which is in the bundle of authorities which was given to the Court yesterday, your Honour, at pages 15 to 16.  It may require the Secretary to arrange investigations.  It can do that through section 427(1)(d), which is at page 20 of that bundle.  It can define the parameters of the hearing it must hold under section 425.

In those circumstances, in my submission, the Tribunal and the applicant combine and define any issues of the inquiry.  If the Tribunal does not follow through on issues that arise from its findings, in my submission, it fails to decide all the issues that arise before it and fails to complete the exercise of its jurisdiction.

Now, in the current case, as I have submitted, your Honours, the Tribunal did at page 8 find that there would be intense societal pressure to marry.  It did not go on and decide the issues which stem from that.  That, in my submission, makes this a suitable vehicle to test the proposition.  Of course, that proposition which I put to the Court is one which will affect an indeterminate number of these applications before especially the Refugee Review Tribunal but also the Migration Review Tribunal.

Your Honour, the second issue which was raised in part from questions from the Bench – unless I can further assist on the first issue ‑ ‑ ‑

HAYNE J:   Go on.

MR KARP:    ‑ ‑ ‑ deals with the Full Court’s endorsement at page 70 of the Court book, of a passage from the judgment of Justice Madgwick of the Federal Court in a case called MMM, where his Honour said:

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 Bangladesh, 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.

Your Honour, at page 27 of the application book the Tribunal held that the pressure to marry in itself was not persecutory.  That is consistent with at least part of what his Honour Justice Madgwick said in MMM, and the Full Court agrees with that at lines 40 and 41 at page 70 of the application book.

CALLINAN J:   Mr Karp, the evidence does not seem to suggest that a man would be compelled to enter into a marriage.  There is a great deal of pressure, no doubt, but many societies put pressure on young people to marry.  There is no evidence to say that the pressure would be such as to compel or actually force the man to go into a marriage and remain in it, assuming everything else you say about such a marriage is correct.

MR KARP:   So, your Honour, the ‑ ‑ ‑

CALLINAN J:   Is that not right?  There is pressure in many societies for young people to marry – not just young people, but people to marry.

MR KARP:   There is, your Honour.

CALLINAN J:   Immense pressure.

MR KARP:   Yes, there is.  Whether it would be persecution would depend on who the pressure is exerted on and whether the ‑ ‑ ‑

CALLINAN J:   And what sorts of sanctions the exerters of the pressure would seek to impose and whether they could ever effectively impose them.

MR KARP:   Yes.  The sanctions may not be legal.  They could be ‑ ‑ ‑

CALLINAN J:   No, I did not mean legal.

MR KARP:   Yes.

CALLINAN J:   The harm.  What harm could and would they do?

MR KARP:   The harm as to refusing to marry would be social ostracism.  Now, that ‑ ‑ ‑

CALLINAN J:   Is that persecution?

MR KARP:   It could be if it was exercised or carried out ‑ ‑ ‑

CALLINAN J:   You do not have evidence of that.

MR KARP:   If I can just look at the ‑ ‑ ‑

CALLINAN J:   What is the worst consequence of a refusal to marry in the evidence?

MR KARP:   Your Honour, if I can take the Court to page 9 of the application book.  There are a couple of paragraphs of the Tribunal decision which summarises a paper given by Dr Khan.  At line 21:

The independent material advises that marriage and having children is seen as a social norm and that families expect and take an active role in arranging marriages for their offspring, both male and female.

Mr Khan states that, “[t]his leads to a culture that demands compulsory marriage and procreation, that gives no validity and space to autonomous women and men, that stigmatises unmarried individuals ‑ ‑ ‑

CALLINAN J:   That is what the culture does.

MR KARP:   Yes.

CALLINAN J:   I find that a rather nebulous sort of description of what can happen.

MR KARP:   Well, it is a nebulous description, your Honour.

CALLINAN J:   Would it mean more than disapproval, strong disapproval?

MR KARP:   Strong disapproval – if a person is forever stigmatised, that they are not considered to be an adult, they are denied social status and responsibility if they do not marry, then if this is carried on for a period of years then it could be seen to be persecutory.

HAYNE J:   I think the difficulty that we are seeking to draw your attention to is summarised sufficiently at page 10 line 25, where there is an extract from the report of Mr Khan at the NAZ Foundation:

So, in summary, the issue is not so much State sponsored abuses, but more social/familial denial, stigmatisation and individual abuses.

The question is whether there is anything you would wish to add to what you have already said in support of the proposition that that may amount to persecution under the Convention.

MR KARP:   Well, as your Honour Justice Callinan said, these are nebulous concepts, but if abuses – I am sorry.  If abuses are constituted by denial of a right to make a living, and in Bangladesh of course this is a very real issue, then that could be itself persecution.  As the extract says at about line 16 or 17:

There is little space for individualism, and no welfare support system to make individual choices.  To remain single is considered an aberration.

Now, your Honours, I do not think I can take the issue much further than that, but that is the evidence that was before the Tribunal.

HAYNE J:   Yes, I understand that.

MR KARP:   May it please your Honours.

HAYNE J:   Yes, thank you, Mr Karp.  We need not trouble you, Mr Bromwich.

An appeal, in our opinion, would enjoy no prospect of success.  That being so, special leave to appeal is refused and must be refused with costs.

AT 12.27 PM THE MATTER WAS CONCLUDED