SZAOD v Minister for Immigration
[2004] FMCA 89
•19 March 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZAOD v MINISTER FOR IMMIGRATION | [2004] FMCA 89 |
| MIGRATION – Review of Refugee Review Tribunal – refusal of a protection visa – applicant claiming persecution in Bangladesh as a homosexual – whether the RRT constructively failed to exercise its jurisdiction by asking itself the wrong question and by overlooking a relevant consideration – no reviewable error found. |
Migration Act 1958 (Cth)
Appellant S395 v Minister for Immigration (2003) 78 ALJR 180
Applicant A v Minister for Immigration (1997) 190 CLR 225
Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293
Htun v Minister for Immigration [2001] FCA 1802
Jayawardene v Minister for Immigration (1999) 60 ALD 425
Lek v Minister for Immigration (1993) 117 ALR 455
Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1
Minister for Immigration v Khawar (2002) 187 ALR 574
SCAL v Minister for Immigration [2003] FCA 548
SZAHV v Minister for Immigration [2004] FMCA 28
Thalary v Minister for Immigration (1997) 50 ALD 349
| Applicant: | SZAOD |
| Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| File No: | SZ783 of 2003 |
| Delivered on: | 19 March 2004 |
| Delivered at: | Sydney |
| Hearing date: | 26 February 2004 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Parish Patience Immigration Lawyers |
| Counsel for the Respondent: | Mr J Smith |
| Solicitors for the Respondent: | Blake Dawson Waldron |
ORDERS
The application is dismissed.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SZ783 of 2003
| SZAOD |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (“the RRT”) made on 26 September 2001 and handed down on 23 October 2001. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa.
The relevant background is set out in paragraphs 1 and 3 of written submissions prepared on behalf of the applicant by Mr Karp. I adopt those paragraphs for the purposes of this judgment:
The applicant is a Bangladeshi citizen who arrived in Australia on 21 February 1999. On 6 April 1999 he lodged a protection visa application with the Department of Immigration and Multicultural Affairs. That application was rejected on 21 April 1999. An application to the RRT, made on 18 May 1999 was rejected in a decision handed down on 23 October 2001. That decision is the subject to the current application for judicial review.
The plaintiff’s claim was that he is a homosexual male, and would be subject to persecution for reason of his membership of a particular social group – homosexual males in Bangladesh. This much was accepted by the Tribunal (at court book, pages 183-4). He said that he feared the following:
b)Being prosecuted under the laws of Bangladesh,
c)That as a homosexual he could be set upon by sections of the community – he cited the possibility of acid being thrown at him.
d)As a homosexual he would be discriminated against in employment,
e)That an openly homosexual relationship is impossible in Bangladesh, and that the need for him to act “discreetly” is in itself persecutory,
f)He may be forced to marry.
However, the RRT did not accept that the applicant would face a real chance of serious harm in Bangladesh because of his sexuality. On page 15 of the reasons for decision of the RRT (court book, pages 184) the presiding member stated:
Generally speaking, being homosexual in Bangladesh, as DFAT has noted, “has a very low public profile and is not the subject of public discussion and sexual issues are not normally discussed”. The Tribunal acknowledges that it may be not desirable that a person’s sexuality should not be recognised in society and that this represents discrimination but finds that such discrimination is not, in and of itself, sufficiently grave as to amount to persecution. The Tribunal finds there is no independent evidence before it that the applicant would face a real chance of serious harm in Bangladesh because of his sexuality. In making this finding, the Tribunal has had regard to the independent evidence, which the Tribunal accepts, that there have “been no persecutions of homosexuals in Bangladesh”. The Tribunal has considered the adviser’s argument that actions such as acid throwing against women who did not conform, could also happen to the applicant but finds this to be merely in the realm of speculation and without any evidentiary base. This is particularly so in the light of the above independent evidence, which the Tribunal accepts, that “there is no significant private harassment from fundamentalist groups” despite the fact that the independent evidence also indicates that “Bangladesh has informal lesbian and gay organizations”.
The presiding member went on to find that the Bangladeshi criminal law against homosexuality had not been enforced in recent times and that there was only a remote chance that it would be enforced. Further, the presiding member stated that sexual matters were not the subject of open discussion within Bangladesh. The presiding member stated (court book, page 184):
The Tribunal accepts that a person should not have to act “discreetly” to hide one’s sexual orientation. However, the independent evidence, which the Tribunal accepts, states that “Sexual issues are not normally discussed” and indicates that as Bangladesh is a very conservative society, the sexual practices and behaviour of all people, whether heterosexual or homosexual, are not matters that are made public. In the light of this evidence, the Tribunal finds that any requirement to be discreet with regard to sexual behaviour is not selectively applied to homosexuals and hence does not involve the selective element which is inherent in the concept of persecution. The Tribunal finds no evidence that the applicant would in fact behave other than in a discreet manner. In making this finding, the Tribunal has noted the adviser’s argument that “gossip” about him may have spread to Bangladesh and that hence he could not be discreet. However, the Tribunal accepts the evidence before it that Bangladesh is a very conservative society in which the sexual practices and behaviour of all people, whether heterosexual or homosexual, are not matters that are made public. This being so, the Tribunal finds that any such news about him, should it have travelled to Bangladesh, will not be a cause of detriment or harm to the applicant.
The presiding member noted the possibility that gossip about the applicant might have spread to Bangladesh and be a potential cause of blackmail by the police. However, the RRT discounted that possibility as in the realm of speculation in the absence of any independent evidence that blackmail by the police was a common practice.
The presiding member also found that the applicant would not suffer persecution in relation to employment. The presiding member stated that because homosexual matters were not the subject of public discussion, it was most unlikely that the applicant would be disadvantaged in his employment, even if his homosexuality became public.
Finally, the presiding member rejected the claim based upon family pressure to marry. The presiding member said (court book, page 185):
The applicant states that he fears his family might make him marry. The Tribunal finds the independent evidence indicates that Bangladesh society is on the whole highly traditional. That being so, the Tribunal finds that such social and traditional pressure would be one that is directed at all single Bangladesh males (and females) many of whom will be pressured to enter into marriage, often arranged by their parents, that are not to their liking. The Tribunal finds that any such pressure, even if it were some significant detriment or disadvantage of sufficient magnitude as to constitute persecution for the purposes of the Convention, would not be being caused for reason of the applicant’s homosexuality. Rather it represents general pressure exerted upon all single adults in that society.
The applicant relies upon his application filed on 7 May 2003, the affidavit of Nigel James Dobbie, filed on 23 February 2004 (going to the issue of delay in filing the application) and Mr Karp’s written submissions (augmented by oral submissions on the day of the hearing). The applicant asserts that the RRT constructively failed to exercise its jurisdiction for the following reasons:
The RRT failed to ask a material question that it had a statutory duty to ask and or erred in its understanding and or application of the law that it had to apply in determining whether or not the applicant is a refugee for the purposes of the Refugees Convention; namely, the RRT found that there was a universal societal expectation in Bangladesh that all males and females have to get married. The RRT found that any pressure from the applicant’s family to marry was because of that expectation, and not for a Refugees Convention reason. However, the RRT should have first asked whether or not all males in Bangladesh constituted a particular social group. It also had to determine whether or not unmarried homosexuals and or unmarried males in Bangladesh constituted a particular social group. It had already found that homosexuals in Bangladesh constituted a particular social group. Once it determined whether any or all of the groups constituted a particular social group, it had to then determine whether or not forcing the applicant to marry and to live in a heterosexual marital relationship, despite this homosexual orientation, constituted persecution.
The RRT failed to ask a material question that it had a statutory duty to ask; namely, the RRT failed to ask what consequences would follow if the applicant refused to marry, despite his family’s pressure that he marry.
The RRT failed to ask a material question that it had a statutory duty to ask and or erred in tis understanding and or application of the law that it had to apply in determining whether or not the applicant is a refugee for the purposes of the Refugees Convention; namely the RRT failed to ask whether the applicant would have to be discreet in relation to his homosexual orientation, if he had to return to Bangladesh. If so, it had to then determine whether having to be discreet constituted persecution for the purposes of the Refugees Convention. Rather, the RRT limited its enquiry to homosexual sexual acts in order to satisfy itself that being forced to be discreet was not selectively applied to homosexuals.
The RRT failed to ask a material question that it had a statutory duty to ask and or erred in its understanding and or application of the law that it had to apply in determining whether or not the applicant is a refugee for the purposes of the Refugees Convention; namely, whether or not the applicant would be able to have an open homosexual relationship in Bangladesh of the nature that he has in Australia. If not, the RRT would also have to determine whether or not that inability was for a Refugees Convention reason and whether or not that inability constituted persecution.
The RRT failed to take into account relevant considerations; namely, the RRT, in finding that the applicant would be able to be discreet in relation to his homosexual orientation if he had to return to Bangladesh, failed to take into account how being forced to marry would affect its finding that the applicant could remain discreet, given that he would have to live with his wife and that he would be expected to have sexual intercourse with her to start a family.
The RRT failed to take into account relevant material that it had before it or ignored relevant material it had before it; namely, the RRT rejected the applicant’s claims that the applicant might be blackmailed by police for reason of his homosexual orientation. In so rejecting the claim, the RRT stated that there is no independent evidence to indicate that it is a common practice and that the risk remained in the realm of speculation. However, the RRT failed to take into account a report from the NAZ Foundation that confirmed that homosexuals are the victims of oppressive behaviour at the hands of the police and civilian authorities.
There was a constructive failure of the RRT to exercise its jurisdiction because its decision is so unreasonable that no reasonable person would have made that decision.
Particulars
(a)The applicant should not be forced to be discreet in relation to his homosexual orientation.
(b)The applicant should not be forced to marry and live in a heterosexual marriage.
Submissions
I will deal with Mr Smith’s submissions later in this judgment. Mr Karp submits as follows:
The plaintiff’s claim was that he is a homosexual male, and would be subject to persecution for reason of his membership of a particular social group – homosexual males in Bangladesh. This much was accepted by the RRT (at court book, pages 183-4). He said that he feared the following:
a)Being prosecuted under the laws of Bangladesh,
b)That as a homosexual he could be set upon by sections of the community – he cited the possibility of acid being thrown at him.
c)As a homosexual he would be discriminated against in employment,
d)That an openly homosexual relationship is impossible in Bangladesh, and that the need for him to act “discreetly” is in itself persecutory,
e)He may be forced to marry.
It is these last two claims, and the RRT’s response to them that are the subject of the application for judicial review. In regard to the last claim the RRT wrote:
The applicant states that he fears his family might make him marry. The Tribunal finds the (sic) independent evidence indicates that Bangladesh society is on the whole highly traditional. That being so, the Tribunal finds that such social and traditional pressure would be one that is directed at all single Bangladesh males (and females) many of whom will be pressured to enter into marriages., often arranged by their parents, that are not to their liking. The Tribunal finds that any such pressure, even if it were some significant detriment or disadvantage of sufficient magnitude as to constitute persecution for the purposes of the Convention, would not be caused by reason of the applicant’s homosexuality. Rather. It represents general pressure exerted upon all single adults in that society.
The applicant says that the RRT has missed the two relevant issues that arise from this, being:
a)Societal pressure can operate differentially upon different groups of people. The RRT did not address the question of whether being forced to marry could affect this man differentially because he is homosexual. It did not, incidentally, address the question of whether the applicant would be persecuted for reason of his membership of another particular social group that it identified – single males in Bangladesh.
b)Putting the matter as bluntly as it needs to be put, a person who is homosexual and wishes to live in an open homosexual relationship should not be expected to live in a heterosexual marriage and all that entails. The RRT did not address this issue.
The applicant submits that the RRT has also misdirected itself at court book, page 184 in deciding that although homosexuals should not have to be discreet, sexual behaviour, whether heterosexual or homosexual, in Bangladesh is not normally discussed, and that societal pressure to be discreet is not applied selectively.
This also misses the point. One of the applicant’s complaints is that a homosexual lifestyle – living openly with a person of the same sex - in Bangladesh is not possible (see e.g. court book, page 176.5). He submits that in restricting itself to the question of sexual behaviour, rather than considering that of lifestyle the RRT had failed to address a relevant issue, and so erred in law. The applicant also submits that the failure to consider whether any discreet behaviour in this respect is caused by fear of possible consequences, and could of itself be persecutory (see Appellant S395 v Minister for Immigration (2003) 78 ALJR 180, 186-191, 194-5).
Of course being forced to marry would destroy any prospect of maintaining a homosexual lifestyle, including living in a homosexual relationship, which he wished to do.
The RRT has thus misinterpreted the law, and failed to ask to ask the right questions of itself. The decision should be quashed and remitted for a decision according to law.
In addition, in his oral submissions Mr Karp submits that the RRT erred in failing to consider whether the applicant had a well-founded fear of persecution by reason of him being a single Bangladeshi adult subject to pressure to marry. This was not a claim made by the applicant. However, Mr Karp submits that the need to consider whether such a social group exists in Bangladesh and whether the applicant, as a member of it, had a well-founded fear of persecution necessarily arises from the approach taken by the RRT and the material before it.
Reasoning
Having regard to the affidavit of Mr Dobbie, I find that the applicant has explained his delay in filing his judicial review application. In the circumstances of this matter the Court should not decline to grant relief by reason of delay.
The application, insofar as it relies upon the decision of the High Court in S395 of 2002 v Minister for Immigration [2003] HCA 71 fails. There are several distinguishing features in this case. I considered the decision of the High Court in the case of SZAHV v Minister for Immigration [2004] FMCA 28. I dealt with the High Court decision in particular at paragraphs [8] through to [14] of that decision, and also in paragraphs [22] through to [25]:
… 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 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.
I find that in this matter the RRT (rather deftly) avoided falling into the errors identified in the High Court in Appellant S395 of 2002. First, the presiding member did not implicitly or implied divide homosexual men into discreet and non discreet homosexual men. On the contrary, the presiding member accepted that a person should not have to act discreetly to hide one’s sexual orientation. Secondly, the RRT did not need to consider whether the need to act discreetly to avoid the threat of harm constituted persecution. Thirdly, the RRT did consider whether the applicant might suffer serious harm if members of the Bangladeshi community discovered that he was a homosexual. The RRT found that in fact the applicant did not need to act discreetly. The RRT found that Bangladeshis generally act discreetly in relation to sexual matters and that this was one of Bangladesh’s general social mores. It was most unlikely that Bangladeshi criminal law proscribing homosexuality would be enforced and in the event that the homosexuality of the applicant became public in Bangladesh serious harm would not result both because the RRT was not persuaded that anyone would take advantage of that situation to the applicant’s detriment and also because the Bangladeshi reluctance to discuss sexual matters would have a chilling effect on any public revelation.
For completeness, I accept paragraphs 5 and 6 of Mr Smith’s written submissions on behalf of the Minister on this point:
This argument is based on the decision of the majority of the High Court in Appellant S395/2002 v Minister for Immigration (2003) 78 ALJR 180. However, the RRT’s findings in that case were very different to the findings here. There, the ratio of the majority was that the RRT erred by determining that there were two distinct groups (discreet and non-discreet homosexuals) and considering only whether the appellants fell into one or the other of those groups. Its reasoning was that if you are in one group you may be beaten and subject to blackmail, of you are in the other, you will not be harmed. It was that a priori classification which led the majority to determine that the RRT had not properly assessed the individual circumstances of the appellants.
Here, on the other hand, there was no a priori classification. The RRT first determined that there was no real risk of persecution under the law. It then discounted any possibility of acid attacks. Then the RRT determined that the applicant would live discreetly, not because of any pressure on him as a homosexual, but rather because everyone lived discreetly in relation to their sexual affairs. The RRT then also discounted the possibility of blackmail because his sexual orientation may be leaked.
I also find that the RRT did not fall into error in failing to consider the differential impact of family pressure to marry upon homosexuals. On this issue, Mr Smith submits as follows:
The harm feared by the applicant in regard to this issue was that he would be under extraordinary pressure to marry and reproduce. The RRT found that the applicant would not be under this pressure because of his homosexuality. In other words, he would be under no greater pressure to marry and reproduce than any other single adult in Bangladesh and any such pressure would not be applied to him because he was a homosexual. The finding was that there was no Convention reason for the harm feared.
The applicant argues that the RRT did not consider whether the pressure would operate “differentially” upon the applicant because of his homosexuality. The use of the term “differentially” is apt to mislead: Minister for Immigration v Haji Ibrahim (2000) 204 CLR 1, 51 per Gummow J. The Convention requires the RRT to determine whether the fear held by the applicant is “for reason of …his membership of a particular social group”, not whether societal pressures act differentially upon the applicant. The RRT asked and answered the correct question.
The next point raised by the applicant is that the RRT did not address the question of whether homosexuals should be expected to live in a heterosexual marriage and all that entails. It may be an error of law for the RRT to act on the basis that it can expect a person to behave in a certain way[1]. That, however, is different to this case. Here, the fear was the pressure which came from societal norms regarding the importance of marriage and reproduction, not the result of the applicant succumbing to that pressure. No claim was ever made that the applicant would marry and “all that entails”. It was not relevant to the RRT’s determination to consider that issue.
[1]Appellant S395/2002 v Minister for Immigration (2003) 78 ALJR 180
There is force in those submissions. I accept that a failure to consider the differential impact of a law of general application may constitute persecution: Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293 at 301 at [21]. By analogy of reasoning it may be a jurisdictional error to fail to consider the differential impact of social pressure upon a particular social group. Here, there was no such failure. The RRT found that the social pressure upon the applicant, as a homosexual, would be no more harmful than the social pressure upon a heterosexual man or woman to marry against their will. The applicant had contended before the RRT that marriage would be unthinkable for him (court book, page 73 at [19]) and that he would prefer to commit suicide than marry (court book, page 180). Mr Karp submits that the RRT erred in failing to consider the consequences for the applicant as a homosexual of being forced to marry. In my view, this really boils down to a determination of whether or not the RRT considered whether the applicant might be forced to marry against his will. Either the RRT found that the applicant would be able to resist the pressure upon him or the RRT failed to consider the consequences if the applicant succumbed to the pressure upon him. In my view, the presiding member accepted that the applicant would refuse to marry, based upon the applicant’s own evidence that marriage was completely unacceptable to him. It logically followed that what the applicant feared was not marriage (which he rejected) but ongoing pressure to marry in the face of his rejection. On that basis, I find that there was no failure on the part of the RRT to consider the issue.
The final question is whether the RRT erred in failing to consider whether the applicant had a well-founded fear of persecution as a single Bangladeshi adult. The application now postulates an alternative social group of “Bangladeshi males” but the sex of the applicant is not relevant. At page 185 of the court book, the presiding member said that pressure upon the applicant to marry, even if it were some significant detriment or disadvantage of sufficient magnitude as to constitute persecution for the purposes of the Convention, would not be caused for reason of the applicant’s homosexuality (or for that matter his sex). Rather, it represents general pressure exerted upon all single adults in that society. The presiding member had been directed to a Canadian decision concerning a Jamaican female who was found to have suffered persecution by being forced to marry against her will (court book, page 58). The presiding member was prepared to accept the theoretical possibility that an unwelcome arranged marriage, or even the pressure to accept an unwelcome arranged marriage, could constitute persecution. However, the RRT found no Convention nexus with the applicant’s asserted particular social group of homosexuals in Bangladesh.
The applicant had not claimed a well‑founded fear of persecution by reason of his membership of another social group of single Bangladeshi adults (or males). However, it is arguable that the RRT having itself raised the prospect of single Bangladeshi adults suffering persecution by being subjected to pressure to marry against their will, should have considered whether such a social group existed in Bangladesh and whether the applicant, as a member of it, had a well‑founded fear of persecution. The failure to carry out that consideration was arguably a failure to take into account a relevant consideration. This would be a jurisdictional error: Htun v Minister for Immigration [2001] FCA 1802 at [13] – [14]. I have some doubt whether such a broad social group could be said to exist in Bangladesh. In Lek v Minister for Immigration (1993) 117 ALR 455 at 469 His Honour Wilcox J found that “young single women” is too broad a category to fall within the Convention terminology. A similar conclusion was reached in Jayawardene v Minister for Immigration (1999) 60 ALD 425. Conversely, in Thalary v Minister for Immigration (1997) 50 ALD 349 the Court was prepared to assume, without deciding, that single women in India would be a particular social group. Following the decision of the High Court in Minister for Immigration v Khawar (2002) 187 ALR 574 I find that, notwithstanding my doubt, there is nothing inherently implausible in the suggestion that single men or women or even single adults in a particular country may constitute a particular social group.
The real problem for the applicant is not the size of the hypothetical social group but the fact that the only apparently unifying characteristic is the fear of harm from an unwelcome arranged marriage. A particular social group cannot be defined by reference to the fear of harm: Applicant A v Minister for Immigration (1997) 190 CLR 225 at 263. The other problem for the applicant is that I do not accept that the RRT suggested an alternative social group in any event. The presiding member’s reference to all single adults being subject to the same social pressure to marry as homosexuals was not a reference to an alternative and broader social group to homosexuals. It was a statement that the social pressure spanned the whole society, and was not directed at homosexuals more than anyone else. It was not necessary for the RRT to consider whether the applicant faced persecution as a member of the broader society through pressure to marry. The pressure on single Bangladeshi adults to marry is a social convention of general application. Whilst the whole community of single adults may be subject to the pressure, it does not render the community a particular social group for the purposes of the Convention meaning of “refugee”: SCAL v Minister for Immigration [2003] FCA 548 at [19].
I will dismiss the application.
Costs should follow the event in this case. The case was one of some complexity and the representatives have gone to considerable effort in order to prepare and present helpful written and oral submissions. It was appropriate for both parties to be represented by counsel as well as solicitors. I will fix costs in the applicant’s favour in the sum of $5,000.
I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 19 March 2004
3