SZDLD v Minister for Immigration - [2005] FMCA 113

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZDLD v MINISTER FOR IMMIGRATION & ANOR

[2005] FMCA 113

MIGRATION – Refugee – member of social group – requirement to act discreetly.

Migration Act 1958

Ngu v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 2
Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426
S395 and S396 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] HCA 71

Applicant:

SZDLD

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent

REFUGEE REVIEW TRIBUNAL

(Constituted by Stuart Russell, Member)

File No:

SZ1261 of 2004

Delivered on:

18 February 2005

Delivered at:

Sydney

Hearing date:

7 October 2004

Judgment of:

Nicholls FM

REPRESENTATION

Counsel for the Applicant:

Mr. M. Jones

Solicitors for the Applicant:

Mr. M. Jones, Solicitor

Counsel for the Respondent:

Mr. R. Bromwich

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

A writ of certiorari issue quashing the decision of the Refugee Review Tribunal made on 19 March 1999.
The matter be remitted to the Refugee Review Tribunal, differently constituted to redetermine the review application according to law.
The first respondent to pay the applicant’s costs fixed in the amount of $4500 pursuant to rule 21.02 (2)(a) of the Federal Magistrates Court Rules.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1261 of 2004

SZDLD

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL
Constituted by Stuart Russell, Member

Second Respondent

JUDGEMENT

This application filed in this Court on 29 April 2004 is seeking review of the decision of the Refugee Review Tribunal (“the Tribunal”) (the second Respondent) made on 19 March 1999 affirming the decision of a delegate of the first respondent made on 30 July 1998, refusing a protection visa to the applicant. The second respondent, by Notice of Appearance filed on 18 June 2004, has submitted to any order of the Court, save as to costs.
The applicant is a Ghanian citizen who arrived in Australia on

25 February 1998 and entered as a visitor. On 18 March 1998 he lodged an application for a protection visa with the first respondent’s Department. He claimed he was a victim of war and unrest, that he was homeless and had lost his family as a result of inter-ethnic clashes. He claimed that the Ghanian authorities did not provide protection to the victims of war. The applicant also claimed protection on the basis of persecution because of his homosexuality.
The applicant’s challenge of the Tribunal’s decision before this Court relates only to the issue of his sexuality. He does not challenge the Tribunal’s other findings concerning problems he had experienced during inter-ethnic warfare in Ghana. In his application to this Court the applicant asserts that the Tribunal’s decision involved jurisdictional error in that the Tribunal failed to correctly apply the law in respect of persecution of homosexuals as a social group. The ground is particularised on the basis that the Tribunal considered that the applicant could avoid persecution by being discreet about his sexual orientation.
The applicant was represented at the hearing before me by Mr. M. Jones and I had the assistance of written outlines of submissions from both the applicant and the respondent who was represented before me by Mr. R. Bromwich. The respondent has also filed a Notice of Objection to Competency on 10 August 2004 objecting to the jurisdiction of this Court to try this application on the basis that it relates to a privative clause decision, and has not been filed within

28 days of the applicant being notified of the Tribunal’s decision pursuant to section 477(1A) of the Migration Act.
The case of Ngu v MIMIA [2004] FCAFC 2, a Full Federal Court decision on 4 November 2004 upheld the judgment of Justice Nicholson who at first instance held that an appeal against a privative clause decision, lodged outside the time limits in s.477 of the Migration Act is in those circumstances incompetent unless a ground of review be made out. In determining whether the Tribunal made a jurisdiction error regard must be had to section 474 of the Migration Act in the way described by the High Court in Plaintiff S157 v The Commonwealth of Australia [2003] 211 CLR 426. Therefore, if the Tribunal’s decision in the case before me is a privative clause decision pursuant to section 474 of the Act then the time limit provided in section 477(1A) of the Act would apply. Also pursuant to section 477(2) of the Act the Federal Magistrates Court cannot make orders which have the effect of allowing the lodging of an application outside the time limit, which is of course 28 days.
The issue therefore, of whether the respondent’s Notice of Objection to Competency should be upheld or not, turns on whether the decision complained of is a privative clause decision or not. To determine this requires an examination of the ground of review.
The applicant’s claim is that the Tribunal fell into error in asking itself the wrong question by assuming homosexual men can be expected to live “discreetly” in Ghana. The applicant says the error is apparent in the following part of the Tribunal’s decision record: [CB 107.8-108.5]:
“The Tribunal accepts that gay men form a particular social group in Ghana. But it would appear that the applicant’s chance of persecution in Ghana for membership of a particular social group is remote. There is no credible evidence before the Tribunal suggesting that any real or threatened backlash against gay men in Ghana is the equivalent of serious harm amounting to persecution for a Convention reason. The Tribunal finds that any necessity for gay men to be discreet in Ghana in order to avoid the social stigma and discrimination of the general community does not amount to persecution.
It is not an infringement of a fundamental human right if one is required, for safety sake, simply not to proclaim that sexuality openly. Individuals of a variety of sexual orientations live side by side in a society like Ghana and practise their sexual orientations privately without feeling a need to proclaim those orientations to the general public. The public manifestation of homosexuality is not an essential ingredient of being homosexual. The question for the Tribunal is whether the behaviour which the applicant is required to adopt in order to avoid possible harm is behaviour which is reasonable, in all the circumstances of the case, to expect him to adopt. Applying the reasoning of the Federal Court in Randhawa v MIEA (1994) 52 FCR 437, a homosexual applicant can reasonably be expected to not publicly proclaim his sexual orientation if this is the way in which he may be safe from persecution. The evidence before the Tribunal indicates that in Ghana such discretion is sufficient to avoid a real chance of persecution for the applicant.
Ipso facto, if the applicant were to be discreet if he were to return to Ghana, then he too would avoid any problems connected with his sexual orientation. Given the independent evidence cited above, the Tribunal is satisfied that homosexual men can live in Ghana without fear of harm if they live in a reasonably discreet fashion. The applicant appears to be a man for whom discretion is not an unreasonable imposition.
At the hearing before me, Mr Jones for the applicant submitted that:
-the decision of the Tribunal was made before the High Court decision in S395 v Minister for Immigrationand S396 v Minister for Immigration [2003] HCA 71;
-the Tribunal made a finding that the chance of persecution faced by the application because of his homosexuality was remote and insubstantial [see CB107.7];
-had the Tribunal reasons ended there then there would be no case for the applicant to pursue;
-but the Tribunal went on [from CB107.7 to CB108] to look at gay men forming a “particular social group in Ghana” and:
·the behaviour that homosexuals in Ghana would be required to adopt to be safe from persecution;
·if the applicant were to be discreet if he were to return to Ghana, then he too would avoid any problems connected with his sexual orientation”; and
-this provides a “gloss” to what the Tribunal says is persecution for homosexuals in Ghana.
The applicant relies on the majority in the High Court decision in S395 v MIMIA and S396 v MIMIA [2003] HCA 71 and in particular Justices Kirby and McHugh at [30], where the applicant says their Honours quote a passage from the Tribunal’s reasons in the case before them which made similar findings to those made in the case before me:
"[The appellants] did not experience serious harm or discrimination prior to their departure from Bangladesh and I do not believe that there is a real chance that they will be persecuted because of their sexuality if they return. As discussed above, while homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it. [The appellants] lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families. They 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."

[emphasis inserted by their Honours]

The applicant goes on to say that their Honours rejected this way of looking at this issue (at [43]):
“The notion that it is reasonable for a person to take action that will avoid persecutory harm invariably leads a tribunal of fact into a failure to consider properly whether there is a real chance of persecution if the person is returned to the country of nationality. This is particularly so where the actions of the persecutors have already caused the person affected to modify his or her conduct by hiding his or her religious beliefs, political opinions, racial origins, country of nationality or membership of a particular social group. In cases where the applicant has modified his or her conduct, there is a natural tendency for the tribunal of fact to reason that, because the applicant has not been persecuted in the past, he or she will not be persecuted in the future. The fallacy underlying this approach is the assumption that the conduct of the applicant is uninfluenced by the conduct of the persecutor and that the relevant persecutory conduct is the harm that will be inflicted. In many - perhaps the majority of - cases, however, the applicant has acted in the way that he or she did only because of the threat of harm. In such cases, the well-founded fear of persecution held by the applicant is the fear that, unless that person acts to avoid the harmful conduct, he or she will suffer harm. It is the threat of serious harm with its menacing implications that constitutes the persecutory conduct. To determine the issue of real chance without determining whether the modified conduct was influenced by the threat of harm is to fail to consider that issue properly.”
The applicant’s submission continues:
Gummow and Hayne JJ delivered a separate judgment which also addresses the issue of discretion (at [81-82]):
“It is important to recognise the breadth of the assertion that is made when, as in the present case, those seeking protection allege fear of persecution for reasons of membership of a social group identified in terms of sexual identity (here, homosexual men in Bangladesh). Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense "discreetly") may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality.
Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the Tribunal if it is intended as a statement of what the applicant must do. The Tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the Tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.”
Relevant to the case before me the majority in S395/S396 held:
-That Tribunal decisions that contain statements that protection applicants are required, or can be expected to take reasonable steps to avoid persecutory harm, are wrong.
-To say that an applicant for protection is expected to behave discreetly is both wrong and irrelevant to the task of the Tribunal if it is intended as a statement of what the applicant must do.
-The Tribunal should not be diverted from addressing the fundamental question of whether there was a well founded fear of persecution by considering whether an applicant for protection was likely to live in a way that would not attract adverse attention.
The applicant says that the Tribunal in the case before me has fallen into the same error as identified in the case of S395/S396, by asking itself the wrong question, by assuming that homosexual men can be expected to live “discreetly” in Ghana. At CB 107 and 108 the Tribunal does address the issue of “gay men” forming “a particular social group in Ghana”:
“The Tribunal finds that any necessity for gay men to be discreet in Ghana in order to avoid the serious stigma and discrimination of the general community does not amount to persecution (CB107.9-108.1).
“It is not an infringement of a fundamental human right if one is required, for safety’s sake, simply not to proclaim that sexuality openly.” (CB 108.2)
“The question for the Tribunal is whether the behaviour which the applicant is required to adopt in order to avoid possible harm is behaviour which is reasonable in all the circumstances of the case to expect him to adopt.” (CB 108.2)
“If the applicant were to be discreet if he were to return to Ghana, then he too would avoid any problems connected with his sexual orientation.” (CB 108.3)
“The applicant appears to be a man for whom discretion is not an unreasonable imposition.” (CB 108.3)
The respondent says in reply that the Tribunal noted that there was no formal or informal persecution of homosexuals in Ghana and the Ghanian government respected minorities and human rights. Homosexual conduct was not a criminal offence and there was no evidence of any private or public harassment of homosexuals in Ghana. The Tribunal found that the chance of persecution was remote and unsubstantiated and that the Tribunal was not satisfied there was a real chance of persecution were the applicant to return to Ghana. [see CB106.5 to 107.8]. The respondent says that these findings were unaffected by any subsequent findings. As there was no apparent jurisdictional error in these findings then any subsequent error did not have necessary consequence in the ultimate decision.
The respondents argument is that the error must be one that affects the exercise of the Tribunal’s powers, because no matter how erroneous the observation or finding, if it did not affect the decision in the sense of being an indispensable part of the conclusion reached, it is properly to be regarded either as no jurisdictional error or a jurisdictional error having no operative effect. In relation to these subsequent or additional comments, the respondent says at paragraph 17 of written submissions:
“These additional comments were in the nature of the administrative equivalent of obiter dicta and did not form any necessary or indispensable part of the reasoning in the decision.”
The matters for this Court then are:
(A)Are the Tribunal comments complained of by the applicant in conflict with High Court decisions in S395 & S396, that is, has the Tribunal fallen into error?
(B)If yes, is this an error which has necessary consequence in the ultimate decision to refuse the protection visa. Was it a jurisdictional error?
The applicant’s case is dependent on the majority judgments in S395/2002 and S396/2002. In those cases the Tribunal found that:
-homosexual men in Bangladesh fell within a particular social group for the purposes of the Convention
-homosexuals in Bangladesh could not live openly without the risk of serious harm
-the persons in question had lived discreetly and as a result had not suffered harm in the past.
-that there was no reason to suppose that they would not continue to live discreetly in the future if returned to their home country
-and therefore the persons would not suffer serious harm and did not have a well-founded fear of persecution if they were to return.
The High Court said relevantly:
-the Tribunal will be in error if it holds the notion that it is reasonable for a person to take action that will avoid persecutionary harm,
-this leads to a failure to consider whether there is a real chance of persecution,
-to determine the issue of real chance, without determining whether the modified conduct was influenced by the threat of harm is to fail to consider the issue properly,
-it is wrong for the Tribunal to say that an applicant is expected to live “discreetly” if it is intended as a statement of what the applicant must do,
-to do so is to ask the wrong question. The correct question is whether there is a well-founded fear.
The respondent says in relation to (A) above, that the Tribunal found that the applicant, on the basis of his evidence and having regard to the claims, individually and cumulatively, it was not satisfied there was a real chance of persecution for a Convention reason. The parts of the Tribunal’s decision record complained of by the applicant are, in the respondent’s contention, “further observations”, and were in the respondent’s submission the “administrative equivalent of obiter dicta”. On the issue of the wording itself the respondent says while on their face these “observations” might be seen to be in conflict with the High Court decisions, the passage fell short of imposing an obligation on the applicant to avoid persecution.
Leaving aside for the moment the other arguments submitted by the respondent, the wording used by the Tribunal in this case, beginning with [at CB 107.8]:
“The Tribunal accepts…”
and ending with [at CB 108.6]:
“…particularly his hometown village.”
do give rise to some concern. It is clear that in this case, unlike S395/S396, the Tribunal found that:
“there is no formal or informal persecution of homosexuals in Ghana” [107.5]
and
“There is no evidence before the Tribunal of any private or public harassment of homosexuals in Ghana”. [CB 107.5]
Nonetheless the Tribunal did say:
“The Tribunal found that any necessity for gay men to be discreet in Ghana in order to avoid the social stigma and discrimination of the general community does not amount to persecution”. [CB 107.9]
and goes on:
“The question for the Tribunal is whether the behaviour which the applicant is required to adopt in order to avoid possible harm is behaviour which is reasonable, in all the circumstances of the case, to expect him to adopt…the evidence…indicates that in Ghana such discretion is sufficient to avoid a real chance of persecution for the applicant. Ipso facto, if the applicant were to be discreet if he were to return to Ghana, then he too would avoid any problems connected with his sexual orientation.” [CB 108.2]
I cannot agree with the respondent’s submission that this passage fell short of imposing any obligation of discretion on the applicant in order to avoid persecution. The words:
“if the applicant were to be discreet if he were to return to Ghana”. [108.3]
and
“the Tribunal is satisfied that homosexual men can live in Ghana without fear of harm if they live in a reasonably discreet fashion.” [CB 108.3]
on any reading on their own, but in particular in the context of the whole passages in which they appear, clearly impose an obligation to act discreetly to avoid “any problems”.

Further, the Tribunal itself poses the question: [CB 108.4]
“The question for the Tribunal is whether the behaviour which the applicant is required to adopt in order to avoid possible harm is behaviour which it is reasonable in all the circumstances of the case, to expect him to adopt.”
The High Court has said that it is wrong for the Tribunal to say that an applicant is expected to live discreetly if it is intended as a statement of what the applicant must do. This is what the Tribunal is saying. The Tribunal has clearly posed the wrong question and has articulated this error in the way it has posed the question to itself in the passage quoted above.
The issue now then is what is the effect of this error on the part of the Tribunal. Did the error have any consequence in the ultimate decision? The respondent submits that the Tribunal made very clear findings from CB106.7 to CB107.8 that:
-the applicant would not face persecution for reasons of his homosexuality if he were to return to Ghana
-there was no evidence before the Tribunal [other than the applicant’s statements] that there was a failure of reasonable state protection
-that there was no formal or informal persecution of homosexuals in Ghana and homosexual conduct was not a criminal offence.
Mr Jones for the applicant agreed at the hearing before me that had the Tribunal stopped at the end of the last complete paragraph at CB107.8 then he probably would have no case. The parties differ however as to the nature, importance and relevance of what follows. I have already come to the view that what follows, on its own, is in conflict with the High Court majority decision in S395/S396. Mr Jones for the applicant submitted at the hearing that this “additional” part of the Tribunal’s reasoning shows that the Tribunal did not have the correct understanding of the meaning of persecution. A finding that there was no evidence of persecution is not sustainable where this finding is dependent on the wrong definition of persecution.
Mr Bromwich for the Minister invited me to look at these “additional comments” as being “in the nature of the administrative equivalent of obiter dicta” and that they did not form any necessary part of the reasoning of the Tribunal leading to the unsuccessful outcome for the applicant. Firstly, I have some difficulty in accepting this characterisation in terms of the analogy advanced. Superior courts in making such observations fulfil an important and obviously useful function in furthering the better understanding of the law, and in particular, for the benefit of inferior courts, Tribunals, legal practitioners and applicants seeking judicial review. A Tribunal such as the Refugee Review Tribunal is in a very different situation. It is looking at refugee applications on a case by case basis, each matter being looked at afresh. It acts as has been often held as the primary decision maker “par excellance”. Its role is to make findings of fact on the material before it in each individual case. To the extent that a Tribunal may refer to legal principles, it is to demonstrate to the applicant and to the Courts if necessary, that it had a proper understanding of the law to be applied. It obviously has no real role in assisting others in this regard.
At the hearing before me Mr Bromwich also suggested that in the context of dealing with an applicant face to face in a very serious matter, the Tribunal may have felt the need to paint the entire picture for the applicant. That is, in circumstances where it could not be easy to refuse an applicant who claims to be a refugee, then the Tribunal may feel the need to “soften” an adverse decision with pointing the applicant to other options that may be available.
This characterisation does not adequately explain what the Tribunal was doing in this case. If what precedes the passage complained of was complete, then additional comments appear to be irrelevant. If they were designed to meet some need arising out of a face to face dealing with the applicant then a far more effective way of doing this would have been to have included this material in the line of logic and reasoning before reaching the ultimate conclusion. To add this passage after having made “the ultimate decision” particularly without any express statement that the Tribunal was doing this for the assistance of the applicant would only serve to confuse the applicant and not assist.
The respondent also argues [at paragraph 18 of written submissions] that the applicant’s central claim of persecution in relation to his homosexuality concerned the reaction of his own family. The Tribunal found that the applicant could relocate to another part of Ghana to avoid problems with his family. [CB 108.9 – 109.2] This says the respondent, is an independent basis upon which the Tribunal found against the applicant, this was unrelated to any issue of “discretion”, was an independent basis upon which the applicant failed before the Tribunal, and why any error related to Appellant S395 was either not jurisdictional or not operative.
The Tribunal deals with the issue of the applicant’s homosexuality and his family at CB 106.7 to CB 107.2. It did not accept the applicant’s claim that his aunt ordered anyone to kill him and found that this claim was at odds with “independent evidence furnished by DFAT.” [CB 106.8]. It found that the “societal rejection that the applicant claims does not amount to persecution” and in any event the Ghanaian state would afford effective protection to him [CB 107.3]. It then notes that there is no formal or informal persecution of homosexuals in Ghana and that it was not satisfied in what was presented by the applicant and on the basis of independent evidence that there was a real chance he would face persecution on return to Ghana [CB 107.8]. The Tribunal then looks at the applicant’s claims in light of his membership of a particular social group in Ghana – namely gay men, and accepts that they form such a social group.
The Tribunal then introduces the idea of “discretion” at CB 107.9. At CB 108.5 it links this idea specifically to the applicant when it finds that homosexual men can live in Ghana without fear of harm if they live in a reasonably discreet fashion and notes that the applicant appears to be a man for whom discretion is not an unreasonable imposition.
In the same paragraph it goes on to look at this issue in the context of relocation and then comes to the conclusion “that it would be reasonable for the applicant to relocate…..where his family does not live, and where he could avoid the problems related to his family due to his homosexuality” [CB 109.2]. It then makes the ultimate finding that the applicant would not be persecuted for reasons of his homosexuality.
The Tribunal clearly expressed the question of acting discreetly in relation to this applicant in a way that did conflict with S395. In seeking to address the issue of whether the Tribunal’s error in this regard is operative, in the sense that it goes to its ultimate finding or whether it is jurisdictional error, it is hard to accept the respondent’s submissions as a satisfactory answer as to why the Tribunal embarked on the lengthy statement of reasons beginning at CB 107.8 and on to 109.1 if it had already made the “ultimate decision”.
A far more simple explanation presents itself. That is, that the Tribunal, in the lengthy passage the complained of, was looking at the issue of
“persecution…… out of one or more of the Convention reasons.” [CB 96.6]
The Tribunal itself identifies this as one of the relevant principles flowing from the Refugee Convention definition as understood through a number of judicial authorities. Preceding this principle is another at CB 96.2 where the Tribunal states:
“not every threat or harm or interference with a person’s rights for a Convention reason constitutes “being persecuted.”
At CB 106.8 the Tribunal looks at the “private” family issues in response to the applicant’s homosexuality. At CB 107.3 with the words:
“The Tribunal also does not accept that the applicant would face persecution for reasons of his homosexuality if he were to return to Ghana.”
and with references further to:
“formal or informal persecution of homosexuals in Ghana.” [CB 107.5]
and through to:
“the Tribunal accepts that gay men form a particular social group in Ghana. But it would appear that the applicant’s chance of persecution in Ghana for membership of a particular social group is remote.” (CB 107.8)
and beyond, the Tribunal is looking at the issue of whether as a member of a social group, having first dealt with and rejected that the applicant would face harm for “private reasons”, the applicant would face harm for a Convention reason namely membership of a social group. This is especially so as the Tribunal has accepted that “gay men form a particular social group in Ghana.”
Seen in this way, this is a far more satisfactory explanation for what the Tribunal has done in relation to the passages complained of, than the assertion that these passages were some “add on” for the sake of completeness. This is particularly so as the Tribunal itself identifies at the beginning of its decision record two of the central questions to be addressed, that is, is there harm amounting to persecution and is this persecution for a Convention reason. The passages complained of by the applicant are an integral and central part of the task for the Tribunal. That is, providing the answers to the questions which it itself posed at the beginning.
The respondent also argues that in deciding whether a finding did or did not affect the ultimate decision, the Court is required to read the Tribunal’s reasons beneficially, although in this case it is submitted a plain reading will suffice.
But even on a beneficial reading the structure and flow of the Tribunal’s findings and reasons as outlined in paragraphs 27 to 29 above show an interconnection of ideas and findings in sequence:
(a)Persecution for family/private reasons
(b)Effective state protection
(c)Gay men in Ghana as a social group
(d)Living discreetly
(e)Relocation
(f)Relocation where family doesn’t live
The penultimate finding at CB 109.2 (f) above clearly links back to the beginning of the findings in relation to homosexuality – (a) above.
A further argument in support of this view, and contrary to the argument advanced by the respondent, is that to separate out the passage complained of does not explain why on the respondent’s submission, if the Tribunal had already made an ultimate finding that there was not “a real chance the applicant would face persecution for a Convention reason” [CB 107.7 and paragraph 12 of respondent’s written submissions], the Tribunal then went on to look at whether there was a need for the applicant to be discreet:
“Ipso facto, if the applicant were to be discreet if he were to return to Ghana, then he too would avoid any problems.”
“The applicant appears to be a man for whom discretion is not an unreasonable imposition.” [CB 108.5]
If, as the Tribunal has already found there was
“no formal or informal persecution of homosexuals in Ghana”
then why did the Tribunal go on to make findings that if the applicant were discreet, and that:
“homosexual men can live in Ghana without fear of harm if they live in a reasonably discreet fashion.”
If there was no formal or informal persecution, then the need to examine the question of living discreetly to avoid harm makes no sense. It does make sense if seen in context that the Tribunal was attempting to answer the question of whether this particular social group (having already found the Convention reason, that is membership of a social group existed) faced persecution. In answering this question by applying expectations that were in conflict with the High Court decision in Applicant S395 the Tribunal has fallen into jurisdictional error. This error was an integral part of the Tribunal’s decision and had consequence in the final decision. On this basis the error was jurisdictional error.
The Tribunal decision complained of is for the reasons above, not a privative clause decision within the meaning of section 474 of the Act, and as such the respondent’s objection to competency is not upheld. The Tribunal’s decision should be quashed and the matter remitted to the Tribunal for consideration in accordance with the law.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Nicholls FM

Associate: Wagma Aziza

Date: 14 February 2005