SZFDJ v Minister for Immigration - [2005] FMCA 733

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZFDJ v MINISTER FOR IMMIGRATION

[2005] FMCA 733

MIGRATION – Visa – protection visa – Refugee Review Tribunal – application for review of decision of the RRT affirming a decision of a delegate of the Minister not to grant the applicant a protection visa – applicant a citizen of Bangladesh – claim of well-founded fear of persecution because of homosexuality – jurisdictional error.

PRACTICE & PROCEDURE – Costs – whether Federal Magistrates Court Rules apply to matters under the Migration Act 1958 (Cth).

Judiciary Act 1903 (Cth) s.39B

Migration Act 1958 (Cth), ss.424A, 475A

Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) FCAFC 264.
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576.
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 231.
Minister for Immigration & Multicultural & Indigenous Affairs v VOAO & VOAP (2005) FCAFC 50.
Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 8.
Minister for Immigration & Multicultural & Indigenous Affairs v VLAR [2004] FMCA 544

Applicant:

SZFDJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SYG 3501 of 2004

Delivered on:

19 May 2005

Delivered at:

Sydney

Hearing date:

17 May 2005

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondent:

Mr Johnson

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

That an order in the form of certiorari is to issue removing the decision of the Second Respondent Refugee Review Tribunal into this Court to be quashed.
That an order in the form of mandamus is to issue requiring the Refugee Review Tribunal to consider the Applicant’s application according to law.
That the Respondents are to pay the Applicant’s costs of this proceeding fixed in the sum of $6,912.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 3501 of 2004

SZFDJ

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 decision was made on 13 October 2004. The decision was handed down on 2 November 2004. The decision of the Tribunal was to affirm the decision of the delegate of the Minister not to grant a protection visa to the Applicant.
The background to this matter is that the Applicant is a citizen of Bangladesh. He arrived in Australia on 19 February 1999. He applied for a protection visa on 22 March 1999 but his application was refused. The Refugee Review Tribunal affirmed the delegate's decision on

25 August 2003. On 16 June 2004 the Federal Court set that decision aside by consent and remitted the matter to the Refugee Review Tribunal. It is this decision of the second hearing of the Refugee Review Tribunal that is the subject of this application for review.
The Applicant claims that he is a homosexual and as such would be subject to persecution in Bangladesh. He claims that he would be denied his right to a homosexual identity because of the homophobic nature of society in Bangladesh and would therefore be subject to intense pressure to marry and have children.
The Applicant filed a submission with the Refugee Review Tribunal which included a statutory declaration claiming that the Applicant would be forced to marry, he would suffer in the course of the marriage, his family knows that he is homosexual and have threatened him and he would be treated like a lower class animal if he returned to Bangladesh. The evidence before the Tribunal documented that there is a distinction between homosexuals known as kothis (also spelt "koti"), this is the term applied to men who are sexually penetrated, and panthis, those men who sexually penetrate other men. There is also evidence to the effect that homosexual men are subject to violence, robbery and extortion by the police and by thugs who are known as mastaans.
The Tribunal, whilst expressing confidence in the Applicant's evidence, as can be seen at page 365 of the Court Book, was prepared to decide the review assuming that the applicant is in fact a homosexual. The Tribunal accepted that male homosexuals constitute a particular social group for Convention purposes. The Tribunal noted that there was ample country information about some aspects of homosexual activity in Bangladesh and very little about male homosexual relationships as such. The Tribunal was unable to accept the Applicant's very broad description of the situation in Bangladesh for male homosexuals. See page 366 of the Court Book.
The evidence about abuse of men who have sex with men largely refers to attacks on kothis. The Tribunal did not accept the Applicant's claims that:
a)he would be forced to marry;
b)that the consequences of the Applicant's not marrying would constitute harm amounting to persecution;
c)that he would not be able to involve himself in social or religious activities;
d)that his social life would be adversely affected; or
e)that he would be treated as a lower class animal or would be subject to humiliation, threats or physical attacks.
The Tribunal also made this finding at page 368 of the Court Book:
As mentioned above, according to country information which I accept, the abuse to which some homosexual Bangladeshis are subject in some places is suffered principally by the kothis because of their effeminate manner and often appearance. Men who avail themselves of their service, the panthis, are not so abused. This is because they are seen to be masculine in that they are the penetrator and not the penetrated. The claims of the applicant and the photos submitted show that he does not identify himself as a kothi.
The Tribunal did not accept that the Applicant had a well founded fear and found that the Applicant would be able to fulfil his sexual orientation needs and engage in consensual homosexual activity without suffering harm amounting to persecution.
Counsel for the Applicant, Mr Karp, submitted that there were three grounds on which the Court could find jurisdictional error:
a) denial of natural justice;
b) failure to ask the right question; and
c) drawing factual conclusions in the complete absence of evidence.
The denial of natural justice argument arises from the fact that a particular report entitled Sex, Secrecy and Shamefulness was not disclosed to the Applicant. The Tribunal used parts of this report to refute the Applicant's claims. In particular, see page 367 of the Court Book. The Applicant's claim that the Tribunal failed to ask the right question relates not to whether the Applicant considers himself to be a kothi or a panthi, but how the police would characterise him. The ‘no evidence’ ground relates to the Tribunal drawing factual conclusions in the complete absence of evidence. This particularly turned on the Applicant's claims about there being extreme pressure to marry in Bangladesh.
Turning to the first of those claims, which relates to the Applicant's claim of being denied natural justice, I note that this report entitled Sex, Secrecy and Shamefulness is a report that was prepared by an organisation call the Naz Foundation. The particular report was one of two reports by the Naz Foundation prepared upon this subject and the report to which Mr Karp refers is the 1997 version, the earlier of the two. The submission by Mr Johnson of counsel for the Respondent relating to the alleged failure to disclose country information, being an allegation of a breach of natural justice, says at page 5 of the submission that the Applicant's complaint overlooks the fact that the Applicant himself put forward the country information referred to, in particular the Naz report. As well, the Applicant was represented by a solicitor, Mr Bitel, at the Tribunal hearing. Counsel submitted that the Applicant would plainly have been aware that the material would have made reference to the Naz Foundation. The Applicant and the Applicant's solicitor were present throughout the hearing.
Mr Johnson submits, and rightly in my view, that there is no requirement under s.424A of the Migration Act, to put such material because it was not specifically about the Applicant or another person and is just about a class of persons of which the Applicant or another person is a member. It is accordingly material which is excluded by s.424A (3) (a). And the authority for that is Minister for Immigration & Multicultural & Indigenous Affairs v NAMW (2004) FCAFC 264 at paragraph 69 to 71 in the judgment of Beaumont J and at paragraph 138 in the joint judgment of Merkel and Healey JJ.
Mr Johnson submits, and again I believe rightly, that the rules of natural justice do not require an applicant to be informed of country information of which the applicant is obviously aware or which has been put forward by the Applicant. At most, natural justice would require the disclosure of the substance of adverse information that has been sourced from elsewhere and of which the Applicant could not be assumed to be aware.
As such, I am not satisfied that the Applicant's first ground can stand.
I turn to the second argument of a denial of procedural fairness by not disclosing the conclusion that the Applicant did not identify himself as a kothi or ask the Applicant whether he so identified himself. Clearly, there was a considerable amount of evidence of which the applicant was aware that kothis were the more effeminate of the type of homosexuals that are found in Bangladesh. The Applicant put forward photographs showing him and a variety of other people, presumably all or most of whom were homosexual, engaged in social activities. Several of those people appeared to be dressed as women. The Applicant did not appear to be dressed as a woman; he in fact was dressed as a male, albeit wearing a string of beads around his neck. There was one photograph of the Applicant with his arms around another young man who was bare-chested, and the applicant had his arms around him from behind. It was these photographs and the applicant's other material from which the Tribunal drew the conclusion that the Applicant did not regard himself as a kothi but as a panthi and as such would not be subject to the discrimination or the persecution which the Tribunal was prepared to accept was visited upon kothis in Bangladesh.
Mr Johnson submits the question of whether the Applicant identifies as a kothi or would be seen as a kothi was an issue which was obviously on the known material, without or without regard to the nature of the decision to be made. As the material plainly raised the question of kothis being at particular risk, there was obviously also an issue whether the Applicant fell within that particular group at risk. It follows that that was not a matter that the Tribunal was obliged to put to the applicant, and the decision of Commissioner for ACT Revenue v Alphaone Pty Ltd (1994 ) 49 FCR 576 at 591-592, supports the Respondent and not the Applicant.
In my view, the question which should have been asked is the question which was put by Mr Karp for the Applicant. The question was not whether the Applicant regarded himself as a kothi but how the Applicant would be regarded by other people, the police and these petty thugs known as ‘mastaans’. The Applicant was not asked whether he was a kothi but there is force in the suggestion by Mr Johnson of counsel that it was up to the Applicant to make that point. The evidence, to my mind, does not enable the strong conclusion to be drawn by the Tribunal that the Applicant did not identify himself as a kothi. Certainly the photographic evidence shows a small number of people dressed as women, in fact a grand total of three, but the vast majority of people were all dressed as men. Whether the Court is meant to accept the fact that only three of those people were kothis and all the others were panthis is a matter that is difficult to accept.
In my view there is some force in the Applicant's submissions, although whilst Mr Karp of counsel regarded this point as stronger than his third point which he argued, in my view this point is only a relatively minor point as far as the applicant's case is concerned. The question of the perception of the applicant by police and petty thugs is, to my mind, a matter that relates to the applicant's fifth ground, the claim of the making of a finding of fact without evidence. In this case, the applicant relies on the decisions of the Full Court of the Federal Court in SFGB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) FCAFC 231; (2003) 77 ALD 402. He also relies on Minister for Immigration & Multicultural & Indigenous Affairs v VOAO and VOAP (2005) FCAFC 50. This is in fact a no evidence ground, or as it was argued, which of course relates to Mr Karp's claim for the Applicant that the Tribunal had made factual conclusions in the complete absence of evidence. They particularly turned on the Applicant's claims about there being extreme pressure on him to marry in Bangladesh.
In my view, the ground is relevant to another claim arising out of the evidence in support of the applicant that is the evidence of the Applicant's witness in support of the claim that known homosexuals are subject to or can be subject to bashing and humiliation not only by petty thugs but also by the police. For the respondent, Mr Johnson of counsel pointed out that the no evidence ground is unlikely to be a jurisdictional error unless it refers to a matter that is a jurisdictional fact. He referred the Court to the decision in Applicant A169 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs (2005) FCAFC 8 at paragraph 31. It is perhaps helpful to consider what their Honours said in that decision:
It was argued that it would amount to jurisdictional error if the Tribunal made a wrong finding of fact, namely that the increased vigilance of the authorities in the case of revived hostilities, would be sufficient to meet the appellant's need for protection. The argument ran that there was insufficient evidence to support that finding. The contention was based upon the observations of Lord Clyde in Reid v Secretary of State for Scotland (1999) 2 AC 512 at 541 in which his Lordship indicated that jurisdictional error may be demonstrated through a legal deficiency, including the absence of evidence or the insufficiency of evidence to support the decision. Justice Kirby in re Minister for Immigration & Multicultural & Indigenous Affairs; ex parte Applicant S20 of 2002 (2003) 77 ALJR 1165; (2003) HCA 30 at 1193 at paragraph 167, suggested that the availability of constitutional writs in Australia should adapt to afford protection as comprehensive as that not regarded as available in England. We do not think the judgments of the other Judges in Applicant S20 of 2002 support that proposition. There may appear circumstances in which the decision of an administrative decision maker appears so unreasonable that no reasonable decision maker could have come to it. In that circumstance, jurisdictional error may be established if such a conclusion is reached, because it is then inferred from the nature of the decision that the administrative decision maker applied the wrong legal test in making a decision or was not in reality satisfied in respect of the correct legal test in making the decision. See for example Applicant S20 of 2002 where Gleason CJ at 1168 paragraph 9 and per McHugh and Gummow JJ at 1171 and 1172, paragraphs 35 to 36. Indeed, it is plainly established by the High Court that there is no jurisdictional error simply in making a wrong finding of fact. See for example Australian Broadcasting Tribunal v Bond (1999) 170 CLR 321, and see also per Spigelman CJ in Bruce v Cole (1998) 45 NSWLR 163 at page 187.
Returning to the decisions of the Full Court in VOAO and also SFGB, it appears to me that the situation in both of those cases was that not only was there no evidence to support a conclusion by the Tribunal, but there was evidence to the contrary. I refer in particular to paragraphs 9 and 10 of their Honours in VOAO and paragraphs 25 and 28 of their Honours in SFGB. In my view the Full Court in VOAO characterised the matter accurately at paragraph 13 by saying:
The situation that arose in this case might preferably be described as a failure to take account of relevant material rather than no evidence. However, the label does not matter. On any view of the matter, the Tribunal fell into jurisdictional error.
With respect, their Honours words seem to me to apply just as well to the situation in SFGB. In my view the evidence relating to the extreme pressure on the applicant to marry falls into just that situation, that not only was there no evidence to support that conclusion by the Tribunal but there was evidence to the contrary.
There is another example which appears to me quite sharply which is reported at page 346 of the Court Book and is referred to again by the Tribunal at page 367. At page 346 at about point 1 the Tribunal refers to evidence of a witness called on behalf of the Applicant. The Tribunal summarises the Applicant's witness' evidence on pages 345 from about point 7, and page 346 down to about point 4. It is noteworthy that whilst the Tribunal cast a considerable amount of doubt on the Applicant's credibility, no such doubt appears to me to have been cast on the evidence or the credibility of the Applicant's witness. A particular incident to which I refer on page 346 of the Court Book is this:
Once, when he was in Bangladesh, some policemen had bashed him and broken his finger. He was saved by the officer who, having advised him not to stay where he was, initiated a conversation about the possibility of his child being educated in Australia.
The Tribunal refers to that at page 367 of the Court Book at about point 9, it set in a paragraph where the Tribunal says that it did not accept that the Applicant would be treated as a lower class animal as he claims, or that he would get humiliations and threats or that he would be attacked physically. This has not happened to him while living in Bangladesh despite his maintaining a homosexual relationship for some years before coming to Australia. The Naz report makes no mention of this as being a problem for any of the workshop participants. The relevant passage, however is:
The Applicant's witness recounted an incident where he was assaulted by two policemen but when their officer arrived he was well treated. He was advised that he was in a place where it was not wise to be and he was consulted regarding education in Australia. Clearly the witness' Australian citizenship and knowledge of English played a part in this outcome, but even in Sydney, being in the wrong place at the wrong time can have serious consequences whether one is homosexual or not. And I do not accept that this account in itself constitutes proof that there is a real chance that the applicant would suffer physical attack in Bangladesh for reason of homosexuality. I note in this context, the witness has not been deterred from making several visits to Bangladesh.
This incident is used by the Tribunal to show that there is no proof that there is real chance that the Applicant would suffer a physical attack simply for reasons of homosexuality. With respect, it seems to me to be evidence entirely to the contrary. The applicant is not saying that there is a likelihood of being assaulted by senior police officers on account of being homosexual, the passage referred to at page 346 makes quite clear that the Applicant's witness said some policemen had bashed him and broken his finger. He was saved by their officer. Well, true it is that the witness was saved from further bashing by the officer but the evidence clearly shows that the witness reported having been bashed by two policemen, an assault by two policemen, in fact an assault occasioning actual bodily harm, the breaking of a finger. There is no other evidence given as to why the applicant's witness whose credibility the Tribunal did not query, was bashed by two policemen.

To my mind it is not a fair comment to say that "even in Sydney being in the wrong place at the wrong time can have serious consequences, whether one is homosexual or not". If the Tribunal member is suggesting that there are places in Sydney where one can expect to be assaulted by police of the rank of constable but not subject to the same ill treatment by police inspectors, this is the most extraordinary proposition. The evidence does not support the construction that the Tribunal put on it. It is evidence entirely to the contrary. As such, it is on all fours with the situation in Minister for Immigration & Multicultural & Indigenous Affairs v VLAR and SFGB v Minister for Immigration & Multicultural & Indigenous Affairs. The very question of suffering violence or humiliation on account of being a homosexual in Bangladesh goes to the very heart of the Applicant's claim. In my view, this is quite clearly a jurisdictional error. I propose therefore to grant the application.
In this case it is a matter where costs would follow the event. In this case, I am satisfied it was an appropriate matter for counsel to be briefed and I was assisted by the well prepared and well argued submissions by two experienced counsel.
It has been put to me that the scale of costs in Schedule 1 of the Federal Magistrates Court Rules may not be applicable to matters under the Migration Act. I note that the Rules were amended in 2004 and the current issue of the Rules was prepared on 29 March 2004. Schedule 1 contains two columns, one for lump sums and other figures in family law matters and one for lump sums and other figures in general federal law matters.
It is a matter of fact, as Mr McNally submitted, that migration matters form a significant part of the Court's general federal law workload. The Court's three core jurisdictions are family law and the federal law jurisdictions of bankruptcy and migration matters. Indeed, in the last two years the Federal Magistrates Court has recorded on its internal database more general federal law judgments than it has family law judgments. The point of this is to say that when the Rules were revised in March 2004 migration matters formed a significant part of the Court's workload. There was no revision of the Court's costs rules to differentiate migration matters from other matters that fall under the heading of general federal law.
In my view, the scale of costs as it refers to general federal law matters is a scale to which the Court should refer when assessing the quantum of costs. The matter before me is clearly one, as I said, where a costs order would follow and I will fix costs today on the basis of the Federal Magistrates Court Rules, in particular schedule 1, the column entitled General Federal Law Amount.
I have done my own calculation from the scale and taken into account the disbursements referred to by Mr McNally. I am of the view that obtaining a copy of the transcript is a reasonable step to take and in fact, in a number of applications under the Migration Act, it is a necessity. I am also of a view that this is a jurisdiction which seems to require a considerable amount of photocopying.
As I said, this was a matter that necessitated or at least justified the attendance of counsel on the hearing day and it was a matter of sufficient complexity that I at least found the need to spend some time to consider it and as you will see, particularly from my consideration of the Full Court decisions of VOAO and others that I did take some time to do it, and it was necessary for me to do it. Because this was not the kind of matter that the Court would be able to deal with off the cuff, and obviously the matter needed a degree of preparation.

I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: V Lee

Date: 31 May 2005