SZGQG v Minister for Immigration - [2006] FMCA 193

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZGQG v MINISTER FOR IMMIGRATION & ANOR

[2006] FMCA 193

MIGRATION – Review of decision by Refugee Review Tribunal – refusal to grant protection visa – applicant claims persecution in Bangladesh as a homosexual – credibility of applicant – particular social group – procedural fairness.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.5(1); 36(2); 65(1); 91R; 91S; 422B; 424A; 474; 483

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123
VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72
Kioa v West (1985) 159 CLR 550
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389
NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263
Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Applicant:

SZGQG

First Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG1714 of 2005

Judgment of:

Emmett FM

Hearing date:

31 January 2006

Date of Last Submission:

31 January 2006

Delivered at:

Sydney

Delivered on:

14 February 2006

REPRESENTATION

Counsel for the Applicant:

Mr R. Anthony

Counsel for the Respondent:

Mr S. Lloyd

Solicitors for the Respondent:

Ms A. Nesbitt, Australian Government Solicitor

ORDERS

That the Applicant be granted leave to add as a Second Respondent nunc pro tunc the Refugee Review Tribunal.
That the Refugee Review Tribunal be joined as Second Respondent.
That the application before this Court is dismissed.
That the Applicant pay the First Respondent’s costs in an amount of $7000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG1714 of 2005

SZGQG

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

This is an application pursuant to s.39B of the Judiciary Act 1903 (Cth) and s.483 of the Migration Act 1958 (Cth) (“the Act”) for judicial review of the decision of the Refugee Review Tribunal (“the Tribunal”) handed down on 9 June 2005 to affirm the decision of the delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (“the Delegate”) not to grant a protection visa to the applicant.
The applicant is a 36 year old man who claims to be a citizen of Bangladesh and of Bengali ethnicity (“the Applicant”).
The Applicant arrived in Australia on 27 May 2000, having departed Saipan on 26 May 2000 on a passport issued in his own name.
On 23 June 2000, the Applicant lodged an application for a protection (Class XA) visa with the Department of Immigration and Multicultural and Indigenous Affairs.
The Applicant claimed persecution in Bangladesh on the basis of his homosexuality.
On 27 October 2000, the Delegate refused the Applicant’s application for a protection visa on the basis that the Applicant does not face a real chance of persecution if he returned to Bangladesh and therefore is not a person to whom Australia owes protection obligations under the Refugees Convention as amended by the Refugees Protocol.
On 7 November 2000, the Applicant lodged an application for review before the Tribunal. On 5 July 2003 the Tribunal affirmed the decision of the Delegate not to grant a protection visa.
The Applicant applied to this Court for review of the Tribunal’s decision and on 21 March 2005 this Court set aside the Tribunal’s decision and sent the Applicant’s matter back to the Tribunal for determination according to law.
On 9 June 2005, the Tribunal affirmed the decision of the Delegate to refuse to grant the Applicant a protection visa.
On 1 July 2005, the Applicant filed an application in this Court seeking judicial review of the Tribunal’s decision.

Legislative framework

Section 65(1) of the Act authorises the decision maker to grant a visa if satisfied that the prescribed criteria have been met. However, if the decision-maker is not so satisfied then the visa application must be refused.
Section 36(2) of the Act relevantly provides that a criterion for a protection visa is that an applicant is a non-citizen in Australia to whom the Minister is satisfied that Australia has a protection obligation under the Refugees Convention as amended by the Refugees Protocol. Section 5(1) of the Act defines “Refugees Convention” and “Refugees Protocol” as meaning the 1951 Convention relating to the Status of Refugees and 1967 Protocol relating to the Status of Refugees.
Australia owes protection obligations to a refugee on Australian territory.
Article 1A(2) of the Convention relevantly defines a refugee as a person who:
“owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.”
Section 91R and s.91S of the Act refer to persecution and membership of a particular social group when considering Article 1A(2) of the Convention.

The Tribunal proceeding

The Tribunal had before it the Department’s file, including the application for a protection visa and the Delegate’s decision. The Applicant also gave oral evidence to the Tribunal on 17 May 2005.
The Applicant claimed that he is a Bangladeshi citizen who is persecuted in Bangladesh by reason of his membership of a particular social group, namely, homosexuals.
The Applicant claimed that at age 14 he was forced to change schools following continued taunts about his homosexuality which was discovered when he “approached his friend” who then told local community members that the Applicant was gay. The Tribunal asked the Applicant to describe what he had done to his friend and he replied that he had “tried to hug and kiss his friend”.
The Tribunal noted that it put to the Applicant that colleagues of the Tribunal member who had worked in Bangladesh stated that affection between men is greater than deemed acceptable in Australia and therefore the Tribunal found it difficult to accept that his friend would react as alleged if the Applicant merely tried to hug and kiss him. The Applicant replied that he could not recall exactly what happened during that incident. The Tribunal noted that, given that this incident occurred during a period where the Applicant first recognised his homosexuality, the Tribunal would expect it to be recollected with greater detail. The Applicant reaffirmed that he could not remember the exact details of the incident.
The Tribunal asked the Applicant why he did not claim that he continued to be taunted after changing schools, despite his claim that his friend had informed local community members of the Applicant’s homosexuality, given that he continued to reside at the same address in that community. The Applicant replied that those taunting him had attended his previous school. After the Tribunal put to the Applicant that it would have expected that the taunts would have continued, given that most of the students of the previous school resided in his local community, the Applicant stated that the taunts did indeed continue despite his efforts to discuss the issue with his local friends.
The Applicant claimed that, whilst at his new school, he formed a friendship with another student and they lived together for a period and then continued to visit each other at their parents home once they finished high school. The Applicant claimed that another student overheard them talking about sex and reported his homosexuality. This resulted in the Applicant’s local Imam and other members of his community discovering his sexuality and subjected him to “20 lashes” as a result of which he became ill. The Applicant claimed that his mother also threatened to disown him at this time if he did not reject his homosexuality.
The Applicant claimed that he commenced college but left without completing his commerce course due to taunts about his homosexuality.
The Applicant claimed that he was dismissed from employment in 1986 after his employer discovered his homosexuality. The Applicant claimed that, after this incident, he was unable to obtain employment for 10 years. However, in oral evidence before the Tribunal he claimed that he had worked as a house guard and fruit delivery driver.
The Applicant further claimed that he continued to experience pressure from his family to marry in Bangladesh and claimed that this pressure would continue if he returned to Bangladesh.
The Applicant claimed that in 1995 his family became “sick of him” and arranged for his departure from Bangladesh which occurred in 1995 when he went to live in Saipan. He continued to reside in Saipan until his departure for Australia in May 2000.
Since arriving in Australia, the Applicant asserted that he frequented gay clubs in Sydney and hoped to form a lasting relationship with an Australian man.
The Applicant stated that he has had two homosexual partners in Australia.
The Applicant claimed in his oral evidence on 17 May 2005 that he was in an exclusive relationship with an Australian man and had been with this man for four years. The Applicant claimed that he was living with this man. The Tribunal noted that it asked the Applicant for the man’s name to which the Applicant provided a first name only. The Tribunal further noted that, despite repeated requests, the Applicant was unable to provide the man’s last name, stating that he had only ever referred to him by his first name. The Tribunal then asked the Applicant how his migration agent had included the man’s surname in correspondence to which the Applicant replied that his agent had obtained his surname by contacting the man directly.
The Tribunal put to the Applicant that it found it implausible that the Applicant could be in a four year exclusive relationship with the man, without knowing his surname. The Applicant claimed that his inability to identify the man’s surname was due to his difficulty with the English language. In rejecting that explanation, the Tribunal noted that the Applicant was able to respond to some of the Tribunal’s questions before they had been interpreted to him.
The Tribunal put to the Applicant the fact that another applicant in a different matter had, at a hearing one week prior to the Applicant’s hearing, claimed that he was in a de facto homosexual relationship with a person with the same name as the Applicant, whom the other applicant claimed to have met in Bangladesh. The Applicant agreed that he knew the other applicant and that the other applicant resided in the same residence as the Applicant and his partner but in a separate bedroom. However, the Applicant denied having engaged in sexual relationships with the other applicant or meeting him prior to arrival in Australia. The Tribunal noted that, when it asked whether the Applicant believed that the other applicant was lying, the Applicant did not answer but rather confirmed his claims.
The Tribunal asked the Applicant about the use of the words “kotis or kothis” which appeared in independent country information as describing homosexuals in Bangladesh. The Applicant denied having heard of the words and claimed that different language was used. The Tribunal put to the Applicant that it seemed implausible that an openly homosexual man in Bangladesh, as the Applicant claimed to be, would be unaware of these words, given their repeated use in several independent reports. The Applicant responded that he left Bangladesh in 1996 and perhaps those words were not in popular use at that time. However, he agreed that he remained in contact with Bangladesh homosexuals during his time in Saipan and Australia.
The Applicant stated that he was aware that homosexual behaviour may attract criminal investigation and convictions in Bangladesh but further stated that he was not aware of any person in Bangladesh who had suffered such conviction. The Applicant stated that he believed that such convictions would increase as would the likelihood of persecution of the Applicant, given the “rise of Islamic fundamentalism” in Bangladesh.
The Applicant stated that he had engaged in two homosexual relationships since arriving in Australia. The second was the man the Applicant claimed to continue to be in a relationship with and the first was a man the Applicant stated was an interpreter. The Applicant claimed that the first Tribunal hearing had been rescheduled because the interpreter was his ex-partner. The file records showed that the interpreter failed to appear at the original hearing date. The Applicant acknowledged that the prior relationship of the interpreter with the Applicant had not been disclosed to the Tribunal.
The Tribunal accepted that the Applicant was a Bangladeshi citizen.
The Tribunal rejected the Applicant’s claims that he was in an exclusive homosexual relationship, given the Applicant’s inability to identify the surname of the partner he claimed to have been in an exclusive relationship with for the past four years. The Tribunal also rejected the Applicant’s explanation for not knowing the surname, namely that he struggled with the English language, when he was able to respond to questions at the hearing before they were interpreted for him.
The Tribunal noted the inconsistencies between the Applicant’s claims and those of the other applicant who had claimed that he was in a relationship with the Applicant in the earlier hearing involving another applicant. However, the Tribunal acknowledged that these inconsistencies would not of themselves lead to an adverse credibility finding and that there were other reasons for the Tribunal’s adverse credit findings.
The Tribunal rejected the Applicant’s claims that he was homosexual on the basis of the Applicant’s failure to recognise the words “kothis or kotis”. The Tribunal did not accept the Applicant’s explanation that the words may not have been used in Bangladesh prior to his departure in 1996, given the Applicant’s confirmation that he had stayed in contact with homosexual friends in Bangladesh after his departure.
The Tribunal did not accept the Applicant’s claims that he would be persecuted given the rise in Islamic fundamentalism in Bangladesh as this claim was inconsistent with independent country information that failed to indicate that a rise in Islamic fundamentalism would “necessarily give rise to a real chance of persecution for any or all homosexuals in Bangladesh.”
The Tribunal made further adverse credit findings against the Applicant on the basis of his inability to recall details of the incident that he claimed occurred when he was fourteen. The Tribunal stated that, whilst the incident was over twenty years ago, it occurred at a time when the Applicant first discovered his homosexuality and therefore the Tribunal found that its importance would have led to greater recollection from the Applicant. Accordingly, the Tribunal rejected the Applicant’s claim that this incident took place.
The Tribunal rejected the Applicant’s claim that he changed schools due to taunting, given that he continued to reside at the same address within the local area where the taunts took place. The Tribunal found it implausible that the taunting would have ceased merely because the Applicant changed schools.
The Tribunal rejected the Applicant’s account of the event that led to him receiving 20 lashes, in which he claimed that he had been exposed as a homosexual after being overheard “talking very closely” with his gay partner. The Tribunal noted that it took three or four questions for the Applicant to state that this statement meant “expressing their love for each other and speaking about sex”. The Tribunal did not accept that such delay was a result of embarrassment and rather concluded that the Applicant had invented the incident to enhance his claim for refugee status in Australia.
The Tribunal found that the Applicant’s evidence in respect of the interpreter at his first hearing, who he claimed to have been an ex-partner of his, would not have led the Tribunal to reverse the decision given the other adverse credibility findings made against the Applicant.
The Tribunal concluded that the Applicant was untruthful in his claims. Accordingly, the Tribunal was not satisfied that the Applicant was a homosexual or that any or his claims were truthful and therefore he is not entitled to protection in Australia.
The Tribunal considered the post hearing statutory declaration but, having found the Applicant’s evidence to be untruthful, it was not satisfied, despite the contrary assertions in the statutory declaration, that the Applicant is a homosexual.

The proceeding before this Court

By consent the Applicant filed a further amended application in Court at the commencement of this hearing (“Further Amended Application”). The Applicant was represented by Counsel, who addressed the Court on the following grounds.

Ground 1 - Applicant’s claim of denial of procedural fairness

The Applicant claims that he was denied procedural fairness in relation to foreshadowed evidence of his alleged partner (“GM”) in that the Tribunal refused an adjournment requested by the Applicant to allow GM to appear at the Tribunal hearing and then made adverse credibility findings arising out of the written evidence of GM.
GM is a man with whom the Applicant claimed to have had an exclusive homosexual relationship for the past four years. Prior to the Tribunal hearing, on 17 May 2005, the Applicant’s migration agent wrote to the Tribunal, on 28 April 2005, requesting an adjournment of the hearing on the basis GM would not be in Australia on the day of the hearing. In his response to the Tribunal’s invitation to attend a hearing, the Applicant nominated GM as a witness who would “give the homosexual relationship witness/evidence”. The Applicant’s request for an adjournment was refused by the Tribunal on 28 April 2005.
The Tribunal, in the Claims and Evidence section of its decision, stated that it declined the Applicant’s request for an adjournment as it “believed the witness would have been able to provide relevant evidence in writing if the applicant and his migration agent thought it prudent. As no such [new] written evidence was provided to the Tribunal presently constituted, I did not believe, without other evidence, that it was necessary in the circumstances for the Tribunal to delay the hearing.” The Tribunal noted that it invited the Applicant, prior to the handing down of its decision to provide any further evidence from GM.
There is nothing in the manner in which the Tribunal refused the adjournment application that would ground any complaint of a denial of procedural fairness. The Tribunal made a timely decision in respect of the adjournment application, providing the Applicant with more than two weeks notice prior to the hearing that the adjournment application had been refused.
In any event, the application for an adjournment is a matter for the discretion of the Tribunal. Moreover, in circumstances where the request was refused on the same day it was made, it cannot be procedurally unfair for the Tribunal to proceed with the hearing on the date nominated, having provided the Applicant with a reasonable time in which to convey the Tribunal’s decision to his witness or to otherwise seek to compel the attendance of his witness before the Tribunal.
Accordingly, this Ground is rejected.

Ground 2 - Applicant’s claim Tribunal failed to consider relevant evidence

The Applicant claimed that the Tribunal failed to take into account GM’s evidence, but then made adverse findings. The Applicant referred to the following comments by the Tribunal as reflected in the transcript.
“See the problem I’m having with that is that if your having a serious relationship, a serious homosexual relationship with this man for the last four years as you have claimed, I am surprised that given you are trying to formalise your migration status in Australia that this man would not have come to the hearing in support of you. Secondly, the mere fact that this man would not come to the hearing does not mean that I would find against you, but I am, nonetheless, surprised and slightly suspicious that he would not come here and rearrange his holiday if you were, in fact, in a serious four year homosexual relationship as you claim. Be that as it may, [GM] has already provided on two occasions written evidence, I think once at the Department and once to the former Tribunal. Irrespective of the recipient though, he has provided written evidence on two occasions and he would thus be aware that if he felt it necessary, both he and you would be aware, that if it was necessary he could provide written evidence to this Tribunal.”
In relation to the Tribunal’s comment that it was “surprised and slightly suspicious” that GM had not attended the hearing by rearranging his holiday, Counsel for the Applicant contended that, had the Applicant realised the adverse interest that the Tribunal would draw from that conduct, he would have ensured that GM attended.
The Tribunal did not refer, in the Findings and Reasons section, to any adverse credibility finding in respect of the Applicant being drawn because of the failure of GM to attend the hearing.
In the Findings and Reasons section of its decision, the Tribunal noted that the witness GM had claimed in writing that he had homosexual sex with the Applicant. However, the Tribunal noted that, when asking the Applicant about GM’s name the Applicant was only able to advise the Tribunal of his first name and stated that he only ever referred to him by his first name. The Tribunal noted that it put to the Applicant that it “did not appear plausible” that the Applicant would have been in an exclusive homosexual relationship with GM for four years and not know his family name. The Applicant responded that he had difficulty with the English language. However, the Tribunal rejected that explanation and did not accept that the Applicant is or was ever in a continuing four year homosexual relationship with GM.
It is plain from the Tribunal decision that it was the Applicant’s explanation of his failure to be able to identify the surname of his alleged four year partner that caused the Tribunal to make the adverse credibility finding.
To the extent that GM’s evidence was “highly relevant to any determination by the Tribunal as to the credibility of the applicant”, as stated in the Applicant’s written submissions, the Tribunal was not satisfied as to the Applicant’s explanation of his failure not to be able to identify the surname of the man to whom he claimed to have had an exclusive four year homosexual relationship.
Certainly, the Tribunal considered all the evidence of GM, comprising two statutory declarations dated 21 November 2002 and 24 May 2005 and an email dated 25 October 2000, but did not accept GM’s assertions of an exclusive four year homosexual relationship with the Applicant.
The findings in relation to the written evidence of GM and the Applicant’s explanations are findings of fact that were open to the Tribunal on the evidence and material before it.
Accordingly, this Ground is rejected.

Ground 4 - Section 424A and procedural fairness

Counsel for the Applicant contends that information that was put by the Tribunal to the Applicant about another applicant who had appeared before the Tribunal a week or so earlier should have been provided to him prior to the hearing. The Tribunal said to the Applicant that this other applicant had referred to the present Applicant by name and had claimed to have a homosexual relationship with him.
The Tribunal summarised the exchange in the Claims and Evidence section of its decision. The Tribunal particularly noted that the Applicant did not respond directly to the Tribunal in relation to its questions that the other applicant was lying. The Tribunal noted that the Applicant did not respond except to repeat his own claims.
Counsel for the Applicant submitted that that was the Applicant’s way of denying what was being put to him by the Tribunal.
However, it is clear, from the Findings and Reasons section of the Tribunal decision, that the Tribunal understood that the Applicant denied the claims of the other applicant that they had been in a homosexual de facto relationship in Bangladesh and had both lived in Saipan. Because it was not in a position to determine the truth or falsity of the claims of either the Applicant or the other applicant, the Tribunal noted the inconsistencies. The Tribunal concluded “based merely on the above, I would not be prepared to make an adverse credibility finding against the Applicant. However, as stated herein, for other reasons, I am satisfied the present applicant is not a witness of truth.”
Counsel for the Applicant submitted that this finding was predicated by the second sentence of the Findings and Reasons section of the Tribunal’s decision which states, “for the reasons set out below, I am not satisfied that the present applicant is a witness of truth.” Counsel for the Applicant contends that those words make it clear that the information the Tribunal had received from the other applicant was information that the Tribunal considered to be reason or part of the reason for affirming the decisions under review. Counsel for the Applicant contends that that information should have been given to the Applicant in accordance with s.424A(1)(a). Section 424A(1)(a)is as follows:
Subject to subsection (3), the Tribunal must:
(a) give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review
It is common ground between the parties that s.422B does not apply. In the circumstances, it is necessary to consider (i) whether or not the Tribunal complied with s.424A and (ii) whether or not the Applicant was otherwise denied procedural fairness by the failure of the Tribunal to provide the Applicant with a transcript of the evidence of the other applicant at another hearing.

(i) – s.424A

It is common ground between the parties that, if the information received by the Tribunal about the Applicant from the other applicant in the earlier unrelated proceeding was the reason or part of the reason for affirming the decision under review, then the Tribunal is obliged to give that information to the Applicant in writing in accordance with s.424A of the Act (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24 at [77]).
Both parties accept that the test for determining whether any such information was the reason or part of the reason for the Tribunal affirming the decision under review, is as stated in VAF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 123 (“VAF”) by Finn and Stone JJ at [41] in the following words:
“It was not so integral to the reasoning process rejecting the appellant’s claim as to require as a matter of fairness that the appellant be told of that information (cf s.424A(1)(a)) and why it was relevant to the review (cf s.424A(1)(b)).”
Counsel for the Applicant contends that, by using the words “based merely on the above”, the Tribunal was making clear that it was giving consideration to information provided to it by the other applicant.
Counsel for the First Respondent submitted that the Tribunal made it clear that the information by the other applicant would not of itself be sufficient to make adverse credibility findings in respect of the Applicant. Certainly, the Tribunal stated “for other reasons I am satisfied the present applicant is not a witness of truth”.
The language of s.424A(1)(a) makes it clear that it is information “that the Tribunal considers would be the reason or part of the reason” for affirming the decision under review that is relevant.
A fair reading of the Tribunal’s decision, in the case before this Court, makes it clear that the Tribunal clearly stated that it did not make an adverse credibility finding against the Applicant as a result of anything arising from information provided to it by the other applicant. The Tribunal stated that “for other reasons” it was satisfied that the Applicant is not a witness of truth. I understand the consequence of those findings to be that inconsistencies with the other applicant’s evidence would not have been sufficient to satisfy the Tribunal that the Applicant was not a witness of truth. In the circumstances, it cannot be that the information received by the Tribunal from the other applicant was “integral to the reasoning process” of the Tribunal in rejecting the Applicant’s claim.
For those reasons this ground is not made out.

(ii) – procedural fairness at common law

Counsel for the Applicant submitted that, in order to discharge its obligation of procedural fairness to the Applicant, the Tribunal should have provided the Applicant with a copy of the other applicant’s evidence, prior to the hearing. Counsel for the Applicant referred the Court to VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 (“VEAL”) to support this contention.
The obligation on a body such as the Tribunal is to bring to the attention of an applicant adverse material to him or material that may cause the determining body to make an adverse finding in circumstances where an applicant can properly deal with such information (VEAL at [27]). In order to discharge its obligations of procedural fairness at common law it is not necessarily incumbent upon the Tribunal to provide such material to the Applicant prior to the hearing. What procedural fairness would demand is that evidence that is adverse, credible, relevant and of significance to the decision to be made should be drawn to the attention of the relevant party in such a manner as to enable that party to properly deal with the adverse information (Kioa v West (1985) 159 CLR 550 at 629; VEAL at [15] to [17]).
The transcript reveals that the Tribunal had the following exchange with the Applicant about the evidence of the other applicant:
“Q45     Okay, Well, just for the record, that’s before commencement of business of this tribunal. We had an applicant before this tribunal that named you by the name that I just read out as their lover.
A (Int)    So sorry, I didn’t’ hear that.
Q46 We had an applicant, a Bangladeshi applicant, a Bangladeshi male applicant before this tribunal who claimed to be homosexual and said that a person with your name was his – he was in a defacto relationship with. Would you like to comment on that because there are two issues that I can draw from this. Firstly is you are lying and you are not in an exclusive homosexual relationship, that’s the first issue. And to be honest, the first issue doesn’t worry me that much because what you do in your life is, you know, in this regard is entirely a matter for you. The second though is much more, it’s much more of a problem in this hearing, and that is that you and some of your colleagues, or at least one of your colleagues, may be saying anything that you think will allow you to be found to be refugees in Australia. So would you like to comment on that fact that somebody, a Bangladeshi homosexual man, last week claimed that you were his lover, for all intents and purposes claimed you were his lover.
A (Int)    I got what you were saying. I came to know that last week there was a hearing where a Bangladeshi applicant who claimed the same thing. In fact, he’s not my partner, he’s renting the other room of my house and afterwards I came to know that he’s the same way and same thing what I am, then afterwards we meeting in the pubs.
Q47. Because he said words to the effect that you were having a sexual relationship and you’re now saying you’re not having a sexual relationship.
A (Int)    He’s not very old in Australia, about five to seven month, and before he came maybe he thought that there will be a relation with me because (indistinct) but I have only my own boyfriend, I don’t need him, but some time we visit to the beach or club.
Q49. So you’re saying that to the extent that this other person said that you’re in a sexual relationship with him, he’s lying, is that what you’re saying?
A (Int)    I don’t have any other friendship other than normal friendship. I don’t have any sexual relationship with him. Just like friend that we meet somewhere, some place, then we drink, then we (indistinct)
Q49. So I put to you then that the implication of what you’re saying is that this applicant last week is lying.
A (Int)    Yeah, I accept that he told this thing, but I don’t have any relation, I am just a friend of him.
Q50. When did you meet this man? Not the man in New Zealand but the man who is in your house, who lives in your house. When did you first meet this man?
A (Int)    I met him at first in the (indistinct) Club. I was drinking, then he came over (indistinct) he told me that I’m Bangladeshi. I told that yeah, I am Bangladeshi from that (indistinct)
Q51. Did you know him in Bangladesh or did you know of him in Bangladesh?
(Int) No, no.
Q52. Did you know ---
A (Int)    I seen him (indistinct) here.
Q53. Did you know of him or did you know him in Saipan?
A (Int)    I don’t have, I don’t know anything about him (indistinct) in Bangladesh, I don’t know him or I don’t know about him.
Q54. Okay. So what about Saipan, did you know him or know of him in Saipan?
A (Int)    Even if he knew me but I don’t know him in Saipan, not even say hello to.
Q55. Because he said he knew you in Bangladesh because you were from the same area.
A (Int)    Maybe he knew the name of my local area and after that he told by himself. The (indistinct) it’s a big area, there is lot of, or some district in Bangladesh, lot of people knows lot of name there, people can say anything about (indistinct) that I know him.
Q56. He also, sorry, my apologies. Please continue.
INTERPRETER   Yeah, yeah, that’s ---
TRIBUNAL MEMBER Was that all?
INTERPRETER   Yeah.
TRIBUNAL MEMBER
Q57. Okay. He also said that you met in Saipan in 1997 which was a time when I understand you were both in Saipan.
A (Int)    Maybe he knew at the time but I don’t him at Saipan. When I came to know (indistinct) in Australia and he rented my other room, from that time in one discussion he (indistinct) or didn’t work in Saipan, then I asked him where did he work, but that’s how I came to know about his company and he came to know about my company.
Q58. Yeah, because you came from Comilla, sorry, my apologies. You were in a location which I understand is near Dhaka, called Comilla, C-O-M-I-L-L-A. Is that correct?
A (Int)    My (indistinct) was living in Comilla (indistinct) but I born in Dhaka.
Q59. And you studied in Comilla. Is that correct?
A (indistinct)
Q60. Because this man last week said that he actually lived in Comilla which is the same location you were in.
A (Int)    Comilla is a big area, there is about 30 police station (indistinct) there so I (indistinct)
Q61. I guess if you’re both claiming to be homosexual though, the homosexual community in Comilla would not be quite as large as the community of Comilla itself and I therefore was wondering whether or not you had met in Comilla as part of the, what I would presume is the smaller homosexual community in that location.
A(Int)     Bangladesh is a (indistinct) country, everyone wants to hide this type of thing with themselves and won’t want to disclose about this thing.”
In the matter before this Court, it is apparent from the transcript that the Tribunal went into some detail to put to the Applicant the information that it thought was relevant and to express to the Applicant its concerns with the responses of the Applicant to that information. The Applicant, by his answers, made it clear that he knew the other applicant but denied that he had a homosexual relationship with him. The Tribunal made it clear in its decision that it understood the Applicant to have denied the allegations of the other applicant.
The Tribunal made it clear that this information was not the reason for its adverse findings in respect of the Applicant’s credibility. Moreover, the Tribunal made it clear, by drawing no adverse inference against the Applicant arising out of the other applicant’s evidence, that it did not regard the other applicant’s evidence as credible. Had the Tribunal relied on the information of the other applicant as credible and, as a result of which, it drew adverse credibility inferences against the Applicant, then procedural fairness may well have required the Tribunal to provide the Applicant with the transcript of the other applicant’s evidence.
In the circumstances of the matter before this Court, there is no denial of procedural fairness to the Applicant in the process adopted by the Tribunal in relation to the information it had arising from the evidence of the other applicant. The information that the Tribunal regarded as relevant was put to the Applicant, the Applicant responded and the Tribunal drew no adverse inference against the Applicant because of that information.
Accordingly, this Ground is not made out.

Grounds 3, 5 and 6 - Tribunal’s reliance on irrational material and serious errors of fact

Counsel for the Applicant contended that this heading covers Grounds 3, 5 and 6 and identifies four factual errors.
In respect of the test of irrationality and illogicality, Deane J stated in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367:
“If a statutory tribunal is required to act judicially, it must act rationally and reasonably. Of its nature, a duty to act judicially (or in accordance with the requirements of procedural fairness or natural justice) excludes the right to decide arbitrarily, irrationally or unreasonably. It requires that regard be paid to material consideration and that immaterial or irrelevant considerations be ignored. It excludes the right to act on preconceived prejudice or suspicion…When the process of decision-making need not be and is not disclosed, there will be a discernable breach of such a duty if a decision of fact is unsupported by probative material. When the process of decision-making is disclosed, there will be a discernable breach of the duty if findings of fact upon which a decision is based are unsupported by probative material and if inferences of fact upon which such a decision is based cannot reasonably be drawn from such findings of fact.”
The first factual error alleged is the Tribunal’s adverse finding in respect of the Applicant’s credibility because of the Applicant’s failure to “recite the family name of his alleged long term sexual partner”. Counsel for the Applicant submitted that the Applicant had explained that he could not pronounce the family name as he was not good at English but that he could spell it. However, the Tribunal did not accept that if the Applicant had been in a relationship with the Applicant for four years that he would not be able to recite his family name. The Tribunal noted that the Applicant claimed to have difficulty with the English language, however it also noted that the Applicant was able to satisfactorily respond to questions by the Tribunal. This led the Tribunal to not accept that this was a sufficient explanation for the Applicant not knowing his alleged partners last name. The Tribunal did not accept that the Applicant would have been in an exclusive homosexual relationship with GM for four years and not know GM’s family name.

Those are findings of fact that were open to the Tribunal on the evidence and material before it. That finding was not irrational or illogical so as to amount to jurisdictional error.
For that reason, the Ground in respect of this particular is not made out.
The second factual error alleged is that the Tribunal took into account irrelevant material, being the information from the second applicant. There was no reason, and none was identified by Counsel for the Applicant, why the Tribunal could not have regard to the information from the other applicant as long as the Tribunal did not fall foul of s.424A of the Act, and I have already determined that it did not. The Tribunal made no conclusion adverse to the Applicant’s credibility based on that information. The Tribunal made it clear that it was for other reasons that it was not satisfied the Applicant was a witness of truth.
For those reasons, the Ground in respect of this particular is not made out.
The third factual error alleged relates to the failure by the Applicant to understand the words “kothis or kotis” as the Tribunal found that they are words with which homosexuals in Bangladesh are familiar. The Applicant sought to rely on his affidavit sworn 9 January 2006 (“the Affidavit”) that purported to annex various uses of those words. However that material was not before the Tribunal and the Affidavit was objected to by the First Respondent and rejected by me at the outset of the hearing.
The Tribunal made clear the information it relied upon in respect of the common use of the words “kothis or kotis” in Bangladesh amongst the homosexual population. The Tribunal noted that it put to the Applicant that it would not expect the Applicant to recite every possible verbal identifier for homosexual or related behaviour in Bangladesh, however, the independent country information led it to conclude that those words were not “obscure”. The Tribunal did not accept that a person who socialised with Bangladesh homosexuals in Bangladesh, Saipan and Australia would not have been familiar with such words as kothis or kotis. The Tribunal relied on these findings as part of the reason for its adverse credibility findings of the Applicant and for rejecting the Applicant’s claim of being homosexual. The Tribunal noted that the Applicant’s claim was that he was openly homosexual in Bangladesh and socialised with homosexual friends. In those circumstances, the Tribunal noted that it did not find it plausible that the Applicant would not be familiar with the words kothis or kotis.
Those are findings of fact that were open to the Tribunal on the material and evidence before it and were not so irrational or irrelevant so as to amount to jurisdictional error.
For those reasons, the Ground in respect of this particular is not made out.
The fourth factual error alleged relates to the Tribunal’s rejection of the Applicant’s account of his first public exposure as a homosexual at 14 years of age. The Tribunal noted that the Applicant had claimed to have been first aware of his homosexuality when he was 14 and approached a friend of the same age. The Tribunal noted that the Applicant stated that the boy rejected the advances of the Applicant and informed members of the local community causing the Applicant to be taunted and to change schools. The Tribunal noted that it asked the Applicant what he had done in the boat to cause the boys reaction and noted that the Applicant claimed that he tried to hug and kiss his friend. The Tribunal noted that it was aware that Bangladeshi men are “much more publicly affectionate with each other than would be deemed appropriate in countries like Australia.” The Tribunal noted that the Applicant then claimed that he could not remember what the Applicant had done. The Tribunal then noted that it put to the Applicant that it would have expected the Applicant to have been able to be recollected in more detail than was provided an incident as important as his first “public exposure” as a homosexual, albeit having occurred 20 years ago. The Tribunal noted that the Applicant responded that he could not remember exactly what he had done to cause his friend to reject him.
The Tribunal did not accept this explanation by the Applicant causing it to make adverse credibility findings in respect of his claim and therefore did not accept that this incident occurred as described by the Applicant. The Tribunal went on to reject the Applicant’s claim that he was a homosexual on the basis of its adverse credibility findings in respect of the Applicant’s evidence.
Those findings were open to the Tribunal on the material and evidence before it and were not so irrational or illogical as to amount to jurisdictional error.
For those reasons, the Grounds in respect of this particular are not made out.
Accordingly, Grounds 3, 5 and 6 are rejected.

Ground 7 - Tribunal’s failure to deal with the Applicant’s claim of being subject to extraordinary social pressure to marry against his will if he were to return to Bangladesh

Counsel for the Applicant contends that the Applicant raised a claim in his original visa application that he would suffer serious harm by being subject to “extraordinary social pressure to marry against his will” if he were to return to Bangladesh. Counsel for the Applicant submitted that the Tribunal was bound to identify the particular social group to which the Applicant belonged and consider his claim accordingly. Counsel for the Applicant referred the Court to Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 197 ALR 389 in support of his submission.
Certainly, the Tribunal is obliged to deal with any claims raised squarely on the material before it (NABE v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 263 at [60]). However there was no evidence before the Tribunal whatsoever that there was a group of people in Bangladesh pressured to marry who were otherwise persecuted for a Convention reason.
However, having rejected the Applicant’s claim that he was homosexual, the Tribunal did not have to consider a claim by him to be a member of a particular social group of homosexuals in Bangladesh who are put under extraordinary social pressure to marry against their will.
Counsel for the Applicant further submits that there was a claim by the Applicant that he was a member of a class of persons who were put under extraordinary social pressure to marry against their and that the Tribunal referred to such but did not consider and determine such a claim.
The Applicant referred to Applicant A & Anor v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 where Brennan CJ stated at 236:
“If a characteristic distinguishes a social group from society at large and attracts persecution to the members of the group that is so distinguished, I see no reason why a well-founded fear of that persecution might not support an application for refugee status…the term “particular social group” should be given a wide interpretation. The term should be understood simply to connote a group constituted by those who share a common distinguishing characteristic which is the “reason” for persecution that is feared.”
Any such claim was clearly made in the context of the Applicant’s alleged homosexuality and having rejected the Applicant’s claim to be a homosexual, it was not necessary for the Tribunal to consider whether there was a class of homosexual people in Bangladesh who were being pressured to marry.
Any pressure to marry referred to by the Applicant was linked to his homosexuality and the Tribunal rejected that claim having considered it and determined that the Applicant was not a homosexual. Accordingly, no such claim is squarely raised, as alleged by Counsel for the Applicant in his Further Amended Application, arises on the evidence before the Tribunal.
For those reasons, this Ground is not made out.

Conclusion

None of the Grounds claimed by the Applicant in his Further Amended Application and in his Counsel’s letter dated 27 January 2006, forming part of his Further Amended Application, in respect of his further claim of procedural unfairness are made out.
In the circumstances, the Tribunal’s decision is a privative clause decision and, in accordance with s.474 of the Act, this Court has no jurisdiction to interfere.
The applications before this Court are dismissed with costs.

I certify that the preceding one hundred and seven (107) paragraphs are a true copy of the reasons for judgment of Emmett FM

Associate: S Riddle

Date: 13 February 2006