SZQIH v Minister for Immigration - [2011] FMCA 782

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZQIH v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 782

MIGRATION – Review of RRT decision – protection visa – where applicant claimed to be a homosexual who would be forced into a heterosexual marriage – whether applicant claimed that he would succumb to pressure to enter a heterosexual marriage – whether claim was clearly articulated and based upon established facts.

Htun v Minister for Immigration (2001) 194 ALR 244
Minister for Immigration v SZANS (2005) 141 FCR 586
NABE (No 2) v Minister for Immigration [2004] FCAFC 263

Applicant:

SZQIH

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 1186 of 2011

Judgment of:

Raphael FM

Hearing date:

26 August 2011

Date of Last Submission:

26 August 2011

Delivered at:

Sydney

Delivered on:

11 October 2011

REPRESENTATION

Counsel for the Applicant:

Mr L Karp

Solicitors for the Applicant:

Parish Patience Immigration Lawyers

Counsel for the Respondents:

Mr T Reilly

Solicitors for the Respondents:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicant to pay the First Respondent’s costs assessed in the sum of $6,240.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 1186 of 2011

SZQIH

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

In Htun v Minister for Immigration (2001) 194 ALR 244 a Full Bench of the Federal Court of Australia, Spender, Merkel and Allsop JJ said at [42]:
“The "participation in the Karen community and the political groups" could be said to have been dealt with by the Tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the "claims" of the applicant eg 866.211, make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant.”
The applicant in the instant proceedings claims that the Refugee Review Tribunal, which handed down its decision on 11 May 2011, failed to deal with the claim made by him that he would suffer persecution as a male homosexual from Nepal should he be required to return to Nepal and submit to his family’s demands that he enter into a heterosexual marriage. The claim is articulated in an Amended Application filed in court on 26 August 2011 and set out below:
“1.The Tribunal committed jurisdictional error in failing to consider claims made by the applicant.
Particular
(a)That the applicant would be persecuted by being forced to marry and enter into a heterosexual relationship if he retuned to Nepal.
(b)That such persecution would be for reason of his membership of a particular social group, being homosexual men in Nepal.”
The applicant made several claims to be a person to whom Australia owed protection obligations arising out of his membership of a particular social group, being homosexual men in Nepal. He submitted that he would be discriminated against and subjected to serious harm by his family and relatives, the Maoists, the authorities, religious figures and society in general in Nepal. He claimed that he would not be able to express his sexuality freely and safely in Nepal and would not have access to state protection. He claimed that his uncle, a Maoist, would seek to harm him for being homosexual. The applicant submitted to the Tribunal that should he return to Nepal his family will put great pressure on him to marry and if he did not conform he would be excluded from his family in society [Application CB 8]. In a statutory declaration made on 20 October 2010 the applicant stated:
“[12]At the moment, my only frustration is that my family is constantly asking me to return home to find a nice woman and get married. Just the thought of being forced into a pre-arranged marriage would affect me on an emotional level, which could lead to depression or physical injury. I would find it hard to live the life decided by my family which would be a life of deceit, lies and possible adultery to fulfil my real self’s emotional and sexual needs.
[13]Every time whenever I made a phone call to my parents they asked me to go back home and get married and help them with their financial status. That is why I have now stopped calling my parents. Now I have received a letter from my parents informing me that my mother is sick and she wants me to go back home and get married.
[14]I have grown aware of myself and the word; and I know that I cannot live a secret life of hidden desire and passion. It is not only deceitful but blasphemous to my religion and unfair to allow any woman to marry me under false pretences. I would not just emotionally carry the secret burden of my sexuality but the deceit to any future wife. I know in my heart and my body that I will never be attracted to women, and I will always need companionship and sexual fulfilment from a man.”
His claims that should he return home his parents’ expectations are that he would get married and that this would be very upsetting and distressing to the applicant was corroborated by a Mr B [CB 97] and a Mr T [CB 102].
The Tribunal questioned the applicant upon his claim. He told the Tribunal that he had not said anything to his family about his sexuality and when the Tribunal asked him how it would find out he stated:
“A:… marriage proposal. Only to find, like, a marriage … I could tell them and, like, … tell them, like, I ---
T:And what happens if you don’t get married, sir?
A:They would make me forcefully married.
T:Well, I don’t really understand, physically, how that could happen. Like, what are they going to do, drag you to a temple and force you to get married? I mean ---
A:Yes, they would. They can. My uncle is like, they will right now. Like, they will, like – as you know, like, Nepal is – in Nepal there is a … dowry system as you know, like dowry system – I’, like … family, right, I’m – they will get lots of money if I will get married with an girl. And for that they do anything. So … like –”
The Tribunal returned to the matter at [T23]:
T:---Your family haven’t harmed you before, so it has to be more than mere speculation on your party that they’re going to harm you now or in the future. And even if I accepted they will harm you, I still have to consider whether you can avoid that harm by just leaving the family – leaving that community.
A:But … like, … I can’t leave my family. They won’t allow to leave my family.
T:Well, maybe your advisor – and he’s having some work prepared for you – maybe your advisor can explore that issue and give me some submissions on whether gay men are being forced back to their family and forced to marry, because, really, I can’t find anything, and I actually can’t even figure out in my mind how that would work, from a practical perspective. You’re a, what, 30 year old adult, being dragged back to your family to get married; I don’t know how that could work. I mean, they’d have to imprison you somehow, I suppose, unless you did it willingly.
A:If I refuse to get married, then they will do – like … like, … my family, like, … my family, like, … getting married, they want to have it ... Nepalese, like, “everyone is getting married in the community, why aren’t they getting married”. What do I say to them?
T:All right. I’ve got it. Anything you want to – anything more you want to say about the information that I raised with you?”
The applicant does not dispute that the Tribunal discussed with him the possibility of his family forcing him into marriage nor does he dispute the Tribunal’s finding [[95] CB 332] that:
“The Tribunal finds the applicant’s claim that his family was subjected to life threatening harm for being gay is mere speculation on his part. The Tribunal is not satisfied by the applicant’s evidence that any member of the applicant’s family has demonstrated the intention or ability to harm him in this way.”
Neither does the applicant cavil with the Tribunal’s finding that it was not satisfied that his uncle would harm him or that he would be targeted by Maoists because of his sexual orientation. The argument which he did put to the court echoed the argument put on behalf of another applicant in Minister for Immigration v SZANS (2005) 141 FCR 586 where the Full Court; Weinberg, Jacobson and Lander JJ at [30 – 34] said:
[30]In our view there is no substance in this ground. It is clear that the RRT did not consider this claim. The passages from the decision of the RRT to which we have earlier referred make it plain that the application was dismissed purely upon the ground of absence of Convention nexus.
[31] The appellant placed particular emphasis on the RRT's finding that the respondent would not change his pattern of behaviour. But this is plainly a reference to the discreet way in which he lives as a homosexual person. It does not address the question of whether he would succumb to the pressure from his family to enter into a heterosexual union.
Appeal Ground 2 — failure to find that the claim was "logically excluded" by other findings of the RRT
[32] The Minister submitted that nothing turned on the failure of the RRT to consider the question whether the respondent would succumb to the social or familial pressure to marry. This was because in order for the Minister to reach the necessary state of satisfaction under s 36(2) of the Migration Act 1958 (Cth) (the Act), she had to be satisfied that two conditions existed. The first was a well-founded fear of persecution. The second was that this fear was held for a Convention reason. If one of the two elements did not exist, the claim failed. Here, the RRT found that there was no Convention nexus. It was therefore unnecessary to consider the other element.
[33] This was the approach which Madgwick J took in MMM. There his Honour said (at 327):
"While the impact of familial pressure to marry would likely fall harder on an unwilling homosexual than an unwilling heterosexual, it seems to me to be correct, as the Tribunal held, that the pressure is nevertheless not exerted "for reasons of" membership of the social group of homosexuals. In Bangladsesh, the pressure falls on all single men, and it did not appear that it was applied differentially as between homosexuals and others. For that reason, fear of Convention persecution was correctly held not to have been shown."
[34] In our view, Madgwick J's analysis of the question was correct and ought to have been followed by the learned Magistrate.”
And at [46 – 47]:
“[46]Counsel for the respondent urged upon us the proposition that once there was a finding that the respondent would be pressured to marry, it was necessary for the RRT, in order to complete the exercise of its jurisdiction, to consider whether he would succumb to that pressure.
[47] There are two answers to this. First, the respondent did not claim that he would succumb to any such pressure. Thus, the RRT was not obliged to deal with a hypothesis that was not raised; see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Applicants S134/2002 (2003) 211 CLR 441^[PDF] at [31]-[32]. Second, any consideration of this hypothesis would involve speculation as to what the consequences may be. A well-founded fear cannot be based upon speculation. The evidence must indicate a real ground for believing that an applicant is at risk of persecution; see Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 572[PDF] (Brennan CJ, Dawson, Toohey, Gaudron, McHugh and Gummow JJ).
The applicant distinguishes his case from SZANS by saying that he did make the claim that he would succumb to pressure and that this would require the Tribunal to consider what the consequences might be and to opine upon them. The Tribunal would be obliged to consider the question of whether being forced into a heterosexual relationship would have been persecutory of this applicant and whether such persecution if found would be for reason of membership of his claimed particular social group. The respondent argued that at no point did the applicant claim he would succumb to being forced to marry other than for reasons of physical violence which the Tribunal had already rejected. In those circumstances it did not need to consider whether such a marriage would itself be persecutory of him for convention reasons. In the end Mr Karp accepted that it really boiled down to an assessment of the remarks extracted from [T23]. I think he is right in making this concession because all the other references to marriage are in relation to a “forced” marriage resulting from threats from some form of physical violence rather than an apparently voluntary marriage based upon succumbing to parental pressure. Mr Bitel in his Affidavit of 15 August 2011 annexing the transcript, says at paragraph 4:
“My clear recollection is that on several occasions during that hearing the applicant broke down in tears. This appeared to me to affect the coherence of his answers to the Tribunal member’s questions.”
It does seem clear to me that the applicant was upset in his response but I do not think that the response is indicative that the applicant is claiming that he would succumb. I think he is illustrating the type of pressure that might be put upon him by his parents and community but he does not say that he would definitely accept their dictate. In NABE (No 2) v Minister for Immigration [2004] FCAFC 263 the Full Bench; Black CJ, French and Selway JJ at [55] said:
“[55]Where the Tribunal fails to make a finding on ‘a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs (2003 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95].”
In the instant case it would be difficult to say that the claim was clearly articulated or that it was based upon established facts. Tellingly, the applicant was represented by a solicitor migration agent of considerable expertise. This was a claim that could have been articulated by the agent in his submissions either in writing or before the Tribunal itself and yet it was not.
I do not believe that the few words extracted at [T23] can be said to support the requirement found to exist in NABE and Dranichnikov.

In those circumstances the application must be dismissed and the applicant must be required to pay the First Respondent’s costs which I assess in the sum of $6,240.00.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: 11 October 2011