SZBSA v Minister for Immigration - [2005] FMCA 1248

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZBSA v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 1248

MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Lebanon as a homosexual – whether RRT overlooked a relevant consideration, made a finding unsupported by evidence or misapplied the Refugees Convention considered – no reviewable error found – application dismissed.

Migration Act 1958 (Cth)

Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473
Applicant NABD of 2002 v Minister for Immigration (2005) 79 ALJR 1142
Minister for Immigration v VWBA [2005] FCAFC 175
SAAP v Minister for Immigration (2005) 215 ALR 162
VFAC of 2002 v Minister for Immigration [2004] FCA 367

Applicant:

SZBSA

First Respondent:

Second Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

REFUGEE REVIEW TRIBUNAL

File Number:

SYG2223 of 2003

Judgment of:

Driver FM

Date of Hearing:

31 August 2005

Delivered at:

Sydney

Delivered on:

31 August 2005

REPRESENTATION

The applicant appeared in person

Counsel for the Respondent:

Mr J D Smith

Solicitors for the Respondent:

Sparke Helmore

ORDERS

The Refugee Review Tribunal be joined as the second respondent to the proceedings.
The application is dismissed.
The applicant is to pay the Minister’s costs and disbursements of and incidental to the application, fixed in the sum of $5,000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG2223 of 2003

SZBSA

Applicant

And

MINISTER FOR IMMIGRATION &
MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application to review a decision of the Refugee Review Tribunal (“the RRT”). The decision was made on 19 June 2002 and handed down on 10 July 2002. The RRT affirmed a decision of the delegate of the Minister not to grant the applicant a protection visa. The applicant is from Lebanon and had claimed he feared persecution in that country by reason of his homosexuality. The background facts are set out in paragraphs 3-10 of written submissions prepared on behalf of the Minister by Mr Smith. I adopt those paragraphs as background for the purposes of this judgment:
The applicant is a citizen of Lebanon who arrived in Australia on 3 February 2000 and lodged and application for a protection visa on 29 February 2000. The applicant claimed that he feared persecution in Lebanon because he is homosexual.
On 27 June 2000, a delegate of the respondent refused to grant the applicant a visa and the applicant applied to the RRT for review of that decision on 11 July 2000. The applicant was invited to attend and did attend the hearing held by the RRT on 18 April 2002 and the RRT handed down its decision affirming the decision of the delegate on 10 July 2002.
RRT’s decision
The RRT found that the applicant had fabricated the account of his experiences in Lebanon when made in his written application [105.6]. In particular, it found that the applicant did not report any harm suffered by him on account of his homosexuality to the superiors in the military because in fact he had not suffered any harm. Although the RRT was of a view that the applicant was probably not homosexual it proceeded on the basis that he was in order to determine whether he would face a real chance of persecution for reasons of homosexuality if he returned to Lebanon.
The RRT considered the claims given by the applicant at the hearing and found that while he was in Lebanon he was extremely discreet about it and that he had regarded it as a private matter between himself and his partner [106.2]. Taking the applicant’s nature into account, the RRT found that the applicant had not suffered any harm or serious threat and because of that found that there was no basis to consider that he would suffer such harm if he returned to the situation at home now or in the reasonably foreseeable future [106.6]. The RRT then turned to consider the country information in respect of the situation regarding homosexual people in Lebanon in general and found that there was a gay community and gay venues in Lebanon and that gay were able to live in the confines of social expectations, the effect of which, in the case of a discreet person such as the applicant, did not amount to persecution [107.3]. It then made the following findings:
a)the applicant is homosexual;
b)he has maintained contact with his family and regularly stayed variously at the family home or at the home of relatives in Lebanon. He continues to have a good relationship with his brother in Australia who is aware he is homosexual;
c)he was in a monogamous homosexual relationship with a young man in Lebanon which he continued with until his departure for Australia;
d)he joined the Army and remained in it from 1998 to 2000;
e)his superiors were not aware or concerned that he was homosexual;
f)he was granted leave from the Army for a period of 30 days;
g)he did not return to Lebanon within the period of his leave and has remained absent for 2 years;
h)the military superiors have not been made aware that he is homosexual;
i)there is a penalty for any soldier failing to return to his post at the end of approved leave;
j)the applicant does not frequent gay venues and is by nature a private and discreet person;
k)homosexuality is illegal in Lebanon;
l)the law is not applied to homosexuals unless they have acted in a manner which has attracted adverse attention and for acts which are not private or discreet;
m)gay venues in Lebanon are publicly known and named in international publications;
n)state protection of authorities will provide protection against any criminal harm suffered by gay people.”
The RRT then made the following important finding:
His discreet pattern of behaviour is, by his own account, self imposed or by choice. It is not a case of him feeling that he must be discreet for fear of harm. He is by nature discreet and private.
The RRT also considered evidence of reports of harassment of gay soldiers and civilians by Army personnel and distinguished the possibility from those reports of extortion or blackmail as a result of sexual encounters with those soldiers from the applicant’s situation on the basis the applicant was not promiscuous and has not engaged in sexual activities outside of those with his partner at any time and also his evidence that he had no desire to do so.
For those reasons the RRT concluded the applicant did not face a real chance of persecution for reasons of his homosexuality.
The RRT next considered the consequences of overstaying the approved leave period from the Army. It concluded that the law in relation to military desertion would be applied to the applicant in the same way as it would be applied to a soldier who was not gay but who had breached his term of leave. For that reason, any penalty imposed on the applicant for the breach of his leave conditions would represent common application of the law and not have any discriminatory or convention element to it [109.7]. On account of that conclusion, the RRT found that any adverse effects of the penalty do not come within the ambit of the Convention and that the applicant was not a person to whom Australia had protection obligations under the Convention.
The original application for judicial review filed on 21 October 2003 was unhelpful and I required particulars to be given in orders made by me on 6 September 2004. By way of compliance with those orders the applicant filed an amended application on 20 September 2004. In that amended application three grounds of review are raised with particulars. The first ground is that the RRT failed to properly exercise its jurisdiction or exceeded its jurisdiction in failing to consider an important integer of the applicant’s claims. The particulars are as follows:
a)The Tribunal did purport to consider whether the Applicant may be sentenced more harshly for reasons of his homosexuality for his failure to return to Lebanon at the end of his approved period of leave. However, while the term of incarceration or punishment may have been the same, the Tribunal failed to also consider whether the Applicant would be treated more harshly or differently by the Lebanese armed forces for reasons of his homosexuality while serving any likely sentence.
b)This integer was an important part of the Applicant’s case before the Tribunal.
I accept that overlooking an element or integer of an applicant’s claims is a jurisdictional error. I also accept that it was part of the applicant’s claims that he would be more harshly treated as a homosexual by the military than an ordinary serviceman. There is a narrow and a broad interpretation of this assertion. The narrow interpretation is that the RRT failed to consider whether the applicant would be treated more harshly than an ordinary serviceman if he returned to Lebanon and was prosecuted under military law for being absent without leave. That appears to me clearly not to be correct. The claim was identified by the presiding member on page 103 of the court book. The claim was dealt with by the presiding member on page 109 of the court book. There is no substance to the assertion that viewed in this narrow way the claim was overlooked or not properly dealt with.
The broader interpretation of this assertion is that the RRT failed to consider the particular harm that might come to the applicant as a military prisoner who was homosexual. There was evidence before the RRT that homosexuals could suffer difficulties in the Lebanese military at the hands of other soldiers. On page 109 of the court book the presiding member said:
I accept that the Applicant has breached the terms of his leave and that there may be adverse consequences.
However, as discussed above I find that the army was not concerned about his homosexuality when he left and find that they would not be when he returned.
The presiding member went on to find as I have already noted that the military law would not be applied differentially simply because the applicant is homosexual. There was no express consideration by the RRT of the risk that the applicant might suffer at the hands of other prisoners in a Lebanese military prison as a homosexual. Mr Smith submits that the issue was dealt with generally by the RRT on the basis that the applicant would not suffer a real risk of harm as a homosexual because only persons who were overtly gay or engaged in lewd behaviour were at risk. I accept that there was country information before the RRT that established that proposition.
The applicant had also in his own evidence put to the RRT that he is naturally a discreet and private person and that he does not draw attention to himself and his gay relationships. His gay relationships had been monogamous. He is not promiscuous nor is he blatantly gay. It was on this basis that the presiding member concluded that there was not a real chance of the applicant coming to harm in Lebanon by reason of his homosexuality. While the contrary proposition is certainly arguable, I accept that the RRT’s reasoning extended logically to the risk that the applicant faced within a Lebanese prison, although it was not specifically dealt with by the presiding member. On balance I find that there was no failure on the part of the RRT to consider any element or integer of the applicant’s claims.
The second ground of review advanced in the application is that the RRT failed to properly exercise its jurisdiction or exceeded its jurisdiction by making the finding of fact in the absence of any evidence at all to support that finding in circumstances where that finding was important to the final adverse decision against the applicant. The particulars are the applicant claimed and it was accepted by the RRT that his superiors in the army were not aware that he was homosexual. However, in the absence of any claim or evidence from the applicant and in the absence of any third party evidence or information the RRT held that the applicant’s superiors in the army were not concerned in the past and would not be concerned in the future if he was homosexual. This ground is dealt with briefly by Mr Smith in paragraph 13 of his written submissions. I agree with and adopt that submission:
The answer to this ground is that there was evidence to support a finding that the applicant’s superior officers were not and would not be concerned by the applicant’s homosexuality. The gist of the country information before the RRT was that only lewd public conduct was a matter of any concern in Lebanon [106.10]. From this it may reasonably be inferred that, since the applicant himself did not profess to have been or desire to be lewd, the officers were not concerned with his sexuality.
In my view, there was material before the RRT coming both from country information and from the applicant himself that supported the finding made by the RRT. The conclusion reached by the RRT was open to it on the material before it.
The third ground of review is that the RRT failed to properly exercise its jurisdiction or exceeded its jurisdiction by failing to apply the Refugees Convention. The particulars are that the RRT found that homosexuality was unlawful in Lebanon and that the RRT held that the applicant was discreet in his homosexuality and could avoid any adverse consequences in Lebanon by remaining discreet and ensuring that his homosexuality was only expressed in private. It is apparent that in this ground the applicant seeks to take advantage of the decision of the High Court in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473. Mr Smith deals with this ground in paragraphs 14 to 18 of his written submissions. I agree with those submissions and adopt them for the purposes of this judgment:
Claims made by homosexuals often give rise to consideration of the decision of the High Court in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473. This ground is an example of that.
The ratio of that case was as described by Weinberg J in Applicant VFAC of 2002 v Minister for Immigration [2004] FCA 367 at [32]:
There is a clear majority view although there are subtle differences in the manner of expression in the two majority judgments. The unifying principle underlying those judgments can be readily discerned. Asylum seekers are not required, nor can they be expected, to take reasonable steps to avoid persecutory harm. Nor are they expected to live “discreetly” to avoid such harm.
The circumstances in this case, including the claims and the RRT’s findings may be distinguished from the case in S395/2002 in 3 ways:
a)the applicant was not discreet because of any fear of harm but rather by his own choice or nature;
b)the applicant’s homosexuality was exposed 2 years before he left Lebanon and he had not suffered any harm or serious threat as a result; and
c) the authorities will provide protection against criminal acts on the basis of his homosexuality.
It is further the case that the RRT, unlike the RRT in S395/2002, did not approach the question posed for it under the Migration Act 1958 (Cth) by some form of preclassification; rather the RRT first examined the issue of discretion and how the applicant had actually lived himself and would live himself in Lebanon; second, he considered what had actually happened or rather, what did not happen to the applicant in the past and his claim that he will continue to live in the past as he will in the future (people both in his village and in the Army being aware of his homosexuality); third, it considered the acts themselves that would give rise to some harm, namely lewd and public acts whether they homosexual or heterosexual as opposed to private acts between consenting couples; and fourth, the RRT considered whether harm would come to the applicant as results of the acts of other people such as by blackmail.
For these reasons, the similarities between this case and the circumstances in S395/2002 are superficial and the RRT did not fall into the errors found by the High Court to have been in the decision of the RRT in S395/2002. The findings made by the RRT and its approach to those findings are closer to the findings and approach made by the RRT in Applicant NABD of 2002 v Minister for Immigration (2005) 79 ALJR 1142.
This was not a case where the RRT sought to impose upon the applicant some assumed norm of appropriate behaviour that might avoid persecution. The presiding member simply accepted the applicant’s evidence of how he chose to live his life and concluded that if the applicant continued to live his life in that way he should not come to harm should he return to Lebanon.
Mr Smith took me to the very recent decision of the Full Court of the Federal Court in Minister for Immigration v VWBA [2005] FCAFC 175, in particular at paragraph 6. In that case the Full Federal Court considered the High Court decision in S395 and at paragraph 6 Sundberg and North JJ drew some general propositions from it. Their Honours said[1]:
Extended extracts from the majority judgments in S395 are found in the judgment appealed from. It is unnecessary to repeat them. Rather we will set out our understanding of the propositions for which that case is authority. They are
(a)The Tribunal will err if it assesses a claim on the basis that an applicant is expected to take reasonable steps to avoid persecution if returned to his or her country of origin. The Tribunal’s task is to assess what the applicant will do, not what he or she should do.
(b)If the Tribunal finds that a person will act in a way that will reduce a risk of persecution that would otherwise have been well-founded, the Tribunal must consider why the person will act in that way. If it fails to do so, it commits a jurisdictional error.
(c)The Tribunal will err if, having found that a person will act in a way that will reduce a risk of persecution, it does not go on to consider whether the person nevertheless has a well-founded fear of persecution because, despite the conduct that reduces the risk, there is still a real risk that the person will be persecuted.
[1] Endnotes omitted
In this case in my view the RRT avoided the three errors identified by the Full Court.
The presiding member was careful to avoid raising any expectation that the applicant should take any steps to avoid persecution should he return to Lebanon. The presiding member simply reflected what the applicant would do should he return there. Secondly, the RRT considered the reason for the applicant’s discreet behaviour in the past. The presiding member said[2]:
His discreet pattern of behaviour is, by his own account, self imposed or by choice. It is not a case of him feeling that he must be discreet for fear of harm. He is by nature discreet and private.
[2] court book, page 108
Thirdly, the RRT did not fail to consider whether, despite the applicant's discretion, there was a real risk of the applicant being persecuted. As Mr Smith noted in his written and oral submissions, a distinction can be made between this case and S395. In S395 there was a risk of blackmail or physical harm at the hands of the police should homosexual behaviour be discovered. In this case the country information before the RRT was that provided persons avoided lewd or promiscuous behaviour no harm could be anticipated. The RRT was entitled to rely on that information.
I find in the circumstances that no jurisdictional error was made by the RRT. It follows that the decision of the RRT is a privative clause decision and the judicial review application must be dismissed.

In so finding I want to add some comments about this matter generally. First, the applicant impressed me as a genuine and honest person. In addition to the material before the RRT the applicant is in possession of more recent material which in his view supports his claims to be at risk of harm should he return to Lebanon. Because that material has been received more recently the RRT was not able to consider it. It is material, however, that might properly be considered by the Minister and her Department should the applicant request that they do so.
Secondly, the applicant explained to me at the hearing today that he is concerned that if he returns to Lebanon persons who know of his homosexuality (including some soldiers) will take the opportunity to harm him. His fear appears to be genuine. Notwithstanding the findings of the RRT that is a matter that might properly receive further consideration. There must, in my view, be some risk that if the applicant is incarcerated in a military prison on his return to Lebanon and if for some reason his homosexuality is discovered he may come to harm.
Thirdly, I should note for the record that these proceedings were conducted by the applicant without the benefit of an interpreter. An Arabic interpreter had been requested but none appeared at the time of the hearing. I raised this with the applicant and asked if he was willing to proceed without an interpreter. He said that he was and I was able to satisfy myself that his command of the English language is quite good. I invited the applicant to let me know if he was having difficulties during the hearing and there were at some stages a need I perceived for me to explain things more clearly so that he understood what Mr Smith and I were saying and so that I understood what he was saying. I have satisfied myself that the proceedings were in the result fair but the issue should nevertheless be placed clearly on the record.
On the question of costs, I accept that costs should follow the event. Mr Smith seeks an order for costs fixed in the sum of $5,500 on a party and party basis. In seeking costs in that amount Mr Smith takes into account that the Minister has had to deal with an amended application. That amended application raised real issues that required consideration and the preparation of written submissions. I have no difficulty in accepting that costs of not less than $5,000 have been reasonably and properly incurred on behalf of the Minister when assessed on a party and party basis.
The Court proposes to amend the rules of court in order to set out clearly for the benefit of litigants what costs can ordinarily be expected to be recovered in migration proceedings. It is proposed that in matters which go to a final hearing, subject to any order of the Court, $5,000 should be recoverable. Bearing that in mind there is nothing in this case that would persuade me to depart from that position. I will order that the applicant pay the Ministers costs and disbursements of and incidental to the application, which I fix in the sum of $5,000.
The amended application names the Minister as the sole respondent. Consistently with the decision of the High Court in SAAP v Minister for Immigration (2005) 215 ALR 162, the Refugee Review Tribunal should be joined as the second respondent and I so order.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of Driver FM

Associate:

Date: 6 September 2005