SZAPG v Minister for Immigration - [2004] FMCA 383

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZAPG v MINISTER FOR IMMIGRATION

[2004] FMCA 383

MIGRATION – Refugee Review Tribunal – visa – protection visa – application for review of decision by Refugee Review Tribunal – applicant from Bangladesh – claim to have a well-founded fear of persecution by being a member of a particular social group – no reviewable error.

Migration Act 1958 (Cth), s.474

Applicant:

SZAPG

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ823 of 2003

Delivered on:

15 April 2004

Delivered at:

Sydney

Hearing date:

15 April 2004

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

In person

Counsel for the Respondent:

Mr Wigney

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

The Application is dismissed.
The Applicant is to pay the Respondent’s costs in the sum of $5,150.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ823 of 2003

SZAPG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

This is an application for a review of a decision of the Refugee Review Tribunal. The Tribunal affirmed a decision by a delegate of the respondent Minister not to grant the applicant a protection visa. The applicant is a citizen of Bangladesh. She arrived in Australia on

15 December 2000. On 12 January 2001, she lodged an application for a protection visa. In that application she claimed to have a well founded fear of persecution on the ground of being a member of a particular social group. The social group, of which the applicant claims to be a member, is that of being a lesbian.
The applicant supported her application with a statutory declaration. In that declaration she set out the facts that she relied upon. In a letter date 10 April 2001, a delegate of the Minister informed the applicant that her application had been refused. The ground for refusal of her application was that there was not a real chance that she would be persecuted for a convention reason if she returned to Bangladesh.
On 8 May 2001, the applicant sought a review of the decision by the Refugee Review Tribunal. The applicant attended a hearing on 28 February 2003. She gave oral evidence at that hearing. A friend of the applicant's, a Ms I, also gave evidence. On 11 April 2003, the Refugee Review Tribunal handed down a decision, affirming the decision not to grant the applicant a protection visa.
The applicant, as I said, is a citizen of Bangladesh, which is a Muslim country. She has said that 90 percent of the population are Muslim. The applicant was married at the age of 12 in an arranged marriage. She had two children in 1985 and 1987. Those children still reside in Bangladesh. The applicant had been in a lesbian relationship with another young woman. They kept their relationship a secret.
In 1988, the applicant's husband discovered the applicant and her friend in a compromising situation. The applicant says that her husband beat her severely. She was beaten so severely that she was hospitalised for two weeks. Her girlfriend's parents put an end to their relationship and refused to allow the girlfriend to have anything to do with the applicant.
As a result of being discovered by her Husband, the applicant's relationship with her husband deteriorated significantly. She said that from time to time he even tortured her. Her husband told her friends and family about her relationship with the other woman. As a result, the applicant lost her social standing in the community. The applicant has said that she is unable to give up her nature as a lesbian. She seeks to have an open and honest relationship with another woman. She wishes to be able to live openly in the community.
The applicant travelled to Singapore and also India in search of a happier life. She returned to Bangladesh. The applicant says that she was not able to form a relationship with a person in Singapore and because of a limitation on her visa and an inability to find appropriate accommodation, she had to return to Bangladesh. She travelled to India but she said that the community in India takes as dim a view of lesbian relationships as people do in Bangladesh. Again, she returned to Bangladesh.
Eventually the applicant came to Australia on 15 December 2000. She wished to live in an open and honest relationship in Australia. She has heard that in Australia it is possible for one to live openly with a person of the same sex. The applicant has formed a relationship with a lady called Ms I, whom she met two years prior to the hearing of the Refugee Review Tribunal. The relationship has been described as an open-out relationship.
As I said, her application for review by the Refugee Review Tribunal was unsuccessful. On 13 May 2003, the applicant lodged an application for review with the Federal Magistrates Court. At that stage the applicant was represented by a solicitor. The grounds of the application are that first, the Refugee Review Tribunal constructively failed to exercise its jurisdiction under the Act in that it:
a)Failed to ask a material question that it had a statutory duty to ask.
b)It failed to take into account relevant considerations.
c)That there was no evidence before the Tribunal that the police in Bangladesh either support or provide an effective level of protection to allow a person in the situation of the applicant to establish a relationship.
d)That there was no evidence before the Tribunal that the applicant's family supported her or would support her to establish a lesbian relationship in Bangladesh.
The applicant also claims that there was a constructive failure by the Tribunal to exercise its jurisdiction because its decision was so unreasonable, that no reasonable person would have made that decision. The particulars of that ground are essentially similar to those particulars given of the earlier ground. The respondent has made written submissions in reply to the application. I have also heard short oral submissions from counsel for the respondent, Mr Wigney.
The applicant has not filed any written submissions but she addressed the court in some detail in support of her application. She is no longer legally represented. She made her submissions with the aid of an interpreter. I heard a brief outline of the respondents submissions in order that the applicant would be able to know the points that she should address in her own submission. The applicant then addressed the court in some detail. I then heard counsel for the respondent.

I then gave the applicant the opportunity to reply to any matters in the submissions by counsel for the respondent.
Basically, the applicant has confirmed that Bangladesh is an Islamic country where the community does not favour lesbian relationships. Indeed, she said that people do not tolerate lesbian relationships. Her family would not support her living in a relationship of that nature but her mother supported her, mainly because she was a woman and a mother would protect her daughter. The applicant said of her mother, no woman would kill and throw away her own children. Her mother had told her however, that she should not live that way in Bangladesh.
She told the court that she could not keep the lesbian part of her nature quiet. The applicant said that people have told her that she would be killed back in Bangladesh. Her children, who are now teenagers, have told her not to come back because she would be killed. She said that the Tribunal never talked once about her protection or her safety. She came to this country and formed a relationship, which she practices openly. Her children, as she said, are still in Bangladesh and they have told her that their father comes and threatens her. If the Tribunal had asked her, she would have given an answer to any relevant questions.
In her reply, the applicant said that the incident 12 years ago when she was discovered by her husband was only the start of her persecution. She said that she was persecuted for 12 years. In her own protection she went to India. She also went to Singapore. She returned to Bangladesh but was on the run from place to place. She remained in hiding and went to see her family in secret. Her friend, with whom she had had the relationship was also persecuted. Her friend's parents locked her in the room or in her house all the time. They would not let the applicant see her. The applicant reiterated that Bangladesh is a Muslim country and people in Bangladesh think that lesbianism is a sin. It is even a sin to pronounce the word.
The applicant told the court that her husband tried to beat her up whenever he saw her. She obtained help from her mother to stop herself from being beaten up. When asked why the Tribunal's decision was incorrect, the applicant said that if the Tribunal had taken the right decision, why would they tell her to go back and live in Bangladesh. Society does not want her in Bangladesh, how could she go and live in that society?
The applicant said that if people do approve of lesbian relationships in this country, why can she not live in this country. If the applicant were to return to live in Bangladesh, she would not be able to step out of her house. It is not possible, she said, for her to give up this lesbian relationship or to go back to her husband. How could the Tribunal have taken the right decision, she asked, to tell her to go back to her country.
The respondent, through Mr Wigney of counsel, submitted that the Tribunal's decision was entirely based on findings of fact. The findings made by the Tribunal, he submitted, were open to the Tribunal on the evidence. It is the respondent's case that the Tribunal's decision does not involve any legal error or any error of jurisdiction. That being the case, Mr Wigney submits there are no grounds for review.
In the respondent's written submissions, the respondent's counsel points out that the Tribunal had essentially accepted all of the applicant's factual claims relating to her treatment in Bangladesh once her sexual relationship was discovered. The only exception to this was that her family hated her following the discovery of this relationship.
The Tribunal, relying on the applicant's oral evidence to the Tribunal, found that the applicant's mother continued to give her emotional support and allowed her to continue to live in the family home.

I would comment that that was the substance of the applicant's oral submission to the court today. I note that the applicant says that her mother had told her however, that she should not live in a lesbian relationship in Bangladesh. The Tribunal was not satisfied that the applicant would be likely to suffer any further abuse at the hands of her husband.
The Tribunal was also satisfied that the applicant would be able to obtain some protection from the State with the support of her family. The Tribunal accepted that political life in Bangladesh is marked by violence and the police and the other authorities have a poor human rights record. At the same time, the Tribunal took the view that there was no real chance that the authorities would refuse to give the applicant the same level of protection from violence as was available to other citizens of that country.
The Tribunal found that the applicant's mother had a high social standing and felt that, that was a relevant consideration. The Tribunal took the view that it was reasonable for the applicant to seek to live in a way that was true to her identity, namely that she is a lesbian and wishes to live in that way. Despite this, the Tribunal was not satisfied that the applicant has a well founded fear of persecution in Bangladesh. The Tribunal was not satisfied that the current level of discrimination against homosexuals in Bangladesh amounts to persecution in convention terms.
The Tribunal found that the applicant would be able to return to Bangladesh and that she would be able to obtain an effective level of protection from the authorities, even if that protection would not be at the level that exists in Australia. The basis of the Tribunal's finding is that despite the factual matters that the Tribunal accepted, the Tribunal was not satisfied that the applicant has a well founded fear of persecution for a convention reason. The Tribunal therefore, was not satisfied that the applicant is a person to whom this country has protection obligations under the Refugee Convention.
The respondent submits that the finding that the Tribunal failed to take into account some evidence that would assist the applicant's case was not sufficient to establish that the Tribunal was bound to take that evidence into account. The respondent submits, and I believe correctly, that the Tribunal did consider the applicant's evidence. Unfortunately, for the applicant, the Tribunal did not give that evidence sufficient weight to be satisfied that the applicant had made out her case.
It may well be that, on the evidence before the Tribunal, a different Tribunal may have taken a view more generous to the applicant. This does not mean, however, that the Tribunal's decision can be overturned as long as there is some probative material to support the Tribunal's findings. I am satisfied that, that is in fact the case. Counsel for the respondent referred the court to a particular ground, namely that the Tribunal failed to ask a material question that it had a statutory duty to ask. That question was whether the applicant would be able to live in an open lesbian relationship in Bangladesh of the nature of the relationship in which she lives in Australia.
It is submitted that, that is not a question that the Tribunal had a statutory duty to ask, and I believe correctly. The unfortunate situation for the applicant is that her application for review is based entirely on a challenge to the factual findings made by the Tribunal. The conduct of a review before the court is not a re-hearing on the facts. Whilst the application alleges a failure by the Tribunal to exercise its jurisdiction, the submissions by the applicant go entirely to a question of the merits of the applicant's case.
The respondent submits, and I believe correctly, that the decision by the Tribunal is a privative clause decision as defined in section 474 of the Migration Act. The applicant has not demonstrated that it is a decision affected by jurisdictional error. I am not satisfied that the decision by the Tribunal involves any error which would justify intervention by the court. There has certainly been shown no jurisdictional error and there are no grounds therefore, upon which I can uphold the application. The application is dismissed. I request a transcript of my reasons for this decision.
This is a matter where it is appropriate to make an order for costs. The applicant is to pay the respondents costs of this application in the sum of $5150.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: A. Coutman

Date: 17 June 2004