SZUQO v Minister for Immigration
[2015] FCCA 592
•14 April 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZUQO v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 592 |
| Catchwords: MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming particular social group persecution in the USA on account of her sexual preference – Tribunal considering the applicant’s claim as a bisexual as compared to a lesbian – error by the Tribunal in failing to consider whether the applicant would be perceived to be a lesbian. |
| Legislation: Migration Act 1958 (Cth), ss.36, 46, 48A, 48B, 195A, 197AB, 416 Migration Amendment (Complementary Protection) Act 2011 (Cth) |
| Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473 NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 |
| Applicant: | SZUQO |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1866 of 2014 |
| Judgment of: | Judge Driver |
| Hearing date: | 17 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 14 April 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr L Karp |
| Solicitors for the Applicant: | Kah Lawyers |
| Counsel for the Respondents: | Mr B Kaplan |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
A writ of certiorari shall issue removing the record of the Refugee Review Tribunal decision made on 3 June 2014 into this Court for the purpose of quashing it.
A writ of mandamus shall issue requiring the Refugee Review Tribunal to redetermine the review application before it according to law.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1866 of 2014
| SZUQO |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
This is an application to review a decision of the Refugee Review Tribunal (Tribunal). The decision was made on 3 June 2014. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa.
The following statement of background facts is derived from the submissions of the parties.
The applicant was born in Tanzania and is a citizen of the USA. She arrived in Australia on 18 January 2008 seeking to import 54.3 grams of heroin and 111.6 grams of cocaine, contained in 57 pellets that she had ingested[1]. She was charged with importing marketable quantities of border-controlled drugs under the Criminal Code Act 1995 (Cth), convicted, and sentenced to six years’ imprisonment, with a non-parole period of three years and six months[2].
[1] Court Book (CB) 129
[2] CB 136
Evidence that the applicant gave in her sentencing hearing was to the effect that after a visit to Tanzania, when returning to the USA via Dubai and Dusseldorf, she met a man named, "Ganje". There was no choice but to overnight in Dubai, and "Ganje", the applicant and a friend with whom the applicant was travelling stayed in the same hotel, in different rooms[3]. She went to a nightclub with "Ganje" where he told her that he wanted her to carry drugs. Her evidence was that she was not interested, but back at the hotel he threatened her severely and forced her to swallow pellets. The following morning he took her to the airport. He gave her an electronic airline ticket. She had left her passport at the hotel reception and when she picked it up in the morning there was an Australian visa in it[4]. She had not intended to come to Australia. Her evidence was further that she intended to phone the police when she arrived in her hotel in Australia. However, she was detected at Sydney Airport and arrested after a scan at St George hospital.
[3] CB 107-8
[4] CB 112-3
On 12 July 2011, less than one week prior to the expiry of her non-parole period, the applicant made an application for a protection visa[5]. She provided submissions in support of her application on 15 July 2011[6], 27 July 2011[7] and 18 August 2011[8]. In short, the applicant claimed to fear harm on the basis that the person who had allegedly forced her to smuggle narcotics into Australia, “Ganje”, was part of a gang in the USA and other parts of the world and will find her. She also asserted that the USA authorities lacked the capacity to protect her.
[5] CB 1-45
[6] CB 46-57
[7] CB 62-81
[8] CB 95-143
On 25 August 2011, a delegate of the Minister made a decision to refuse to grant the applicant a protection visa[9]. The delegate had found that the applicant did not fear harm for a reason that had any connection with the Refugees Convention[10].
[9] CB 150-156
[10] CB 156
On 5 September 2011, the applicant applied to the Tribunal for review of the delegate’s decision[11]. The Tribunal affirmed the delegate’s decision on 14 March 2012[12].
[11] CB 160
[12] CB 159-216
Between 9 November 2011 and 13 September 2013, the applicant made numerous applications for ministerial intervention under ss.48B, 195A, 197AB and 417 of the Migration Act 1958 (Cth) (Migration Act)[13]. Some were not considered by the Minister, others were considered and rejected, and others still were withdrawn or discontinued by the applicant.
[13] CB 321-322
In the meantime, on 19 November 2012, the applicant made a second protection visa application, advancing claims in relation to the complementary protection criterion in s.36(2)(aa) of the Migration Act only[14].
[14] CB 217-253
On the same day, the Minister’s Department wrote to the applicant to inform her that her second protection visa application was barred by s.48A of the Migration Act and, thus, invalid (by reason of s.46(1)(d))[15]. However, her application was treated as a request under s.48B for the Minister to determine that s.48A should not apply[16].
[15] CB 257-258
[16] CB 257
On 3 July 2013, a Full Court of the Federal Court held, in SZGIZ v Minister for Immigration[17], that s.48A of the Migration Act did not prevent an applicant from making a visa application purely on complementary protection grounds if a decision was made on his or her first protection visa application prior to 24 March 2012, being the date on which the Migration Amendment (Complementary Protection) Act 2011 (Cth) commenced.
[17] (2013) 212 FCR 235
Following the Full Court’s judgment, the applicant’s second protection visa application was found to be valid[18].
[18] CB 322
The applicant provided further material in support of her case on 8 October 2013 [19], 11 February 2014[20] and 17 February 2014[21].
[19] CB 322
[20] CB 261-282
[21] CB 283-314
On 27 February 2014, a delegate of the Minister refused to grant a protection visa to the applicant (second delegate’s decision)[22].
[22] CB 320-341
On 28 February 2014, the applicant applied to the Tribunal for review of the second delegate’s decision[23]. She then provided substantial material in support of her application for review on 2 May 2014[24], 8 May 2014[25] and 9 May 2014[26]. Amongst other things, the applicant claimed to fear harm on the basis that she is a bisexual[27].
[23] CB 342-351
[24] CB 366-499
[25] CB 500-506
[26] CB 510-541
[27] CB 503-504, 523-524
Amongst the many documents submitted by the applicant to the Tribunal was a paper about violence directed to homosexual men, lesbians and bisexual people amongst others[28]. In a submission dated 5 February 2014 which was provided at hearing[29] the applicant claimed that she was trafficked and that "Ganje" had continued his threats and wants his money[30]. She also made claims as to her gender identity, to the effect that she had been in a secret same sex relationship which is culturally taboo in her African society and in the USA[31]. She continued:
I have to keep the entire aspect of my life secret, all because of society pressure, with explicit and implicit hostility and discrimination that I have to endure and not living openly (sic). Though I have this inclination of being bisexual I have to keep appearances and gotten married, even though I have a “Gender Identity” crisis that I deeply felt internally that I believed does not correspond with the sex assigned to me at birth; as proven the personal sense of my body, the way I dress, speech and my mannerisms. (sic)
[28] CB 493-495
[29] CB 500-506
[30] CB 500-503
[31] CB 503
The Tribunal decision
The Tribunal exercised its discretion under s.416 of the Migration Act in favour of the applicant by permitting her to make fresh claims by reference to the Refugees criterion as well as the complementary protection criterion.
The Tribunal identified as issues for determination whether the applicant is owed protection obligations under ss.36(2)(a) and/or (aa) of the Migration Act on the basis of her bisexuality[32].
[32] CB 548 [22]
The Tribunal noted the applicant’s evidence that she had been subjected to domestic violence and bullying by her father and her former husband due to her bisexuality[33]. It noted that the applicant’s father had died and that she had not heard from her ex-husband since her arrival in Australia[34]. Since the applicant did not claim that her ex-husband would harm her if she returned to the USA, and given her father’s death, the Tribunal found that she did not have a well-founded fear of persecution by reason of her bisexuality if she returned to the USA[35].
[33] CB 554 [53]-[54]
[34] CB 554 [55]
[35] CB 554 [55]
The Tribunal referred to country information with respect to violence against the lesbian, gay, bisexual, transgender and queer (LGBTQ) community in the USA[36] and found, at [60][37], that there was no evidence to support a finding that “the frequency of serious harm directed against bisexual people is sufficiently high to indicate that there would be a real chance that the applicant would face persecution as a bisexual, or as a bisexual person of colour”.
[36] at CB 554-555 [57]-[60]
[37] CB 555
The Tribunal also rejected a claim made by the applicant that she would be shot on the street in the USA[38].
[38] CB 555-556 [61]
The applicant further claimed that she feared “being discriminated against on the basis of her bisexuality and suffering verbal abuse and prejudice” and that “gays and lesbians were killed in the USA merely for being gay”[39]. The Tribunal considered country information on community attitudes towards the LGBTQ community in the US[40] and found that that information did not suggest that the applicant “would be subjected to discrimination which is sufficiently serious to constitute persecution on the basis of bisexuality, or race or for any other reason if she were to return to the USA now or in the reasonably foreseeable future”[41].
[39] CB 554 [56]
[40] CB 556 [62]-[63]
[41] CB 556 [64]
The Tribunal also found that the applicant was not a person to whom complementary protection was owed on the basis of her bisexuality[42].
[42] CB 557 [68]-[70]
The judicial review application
These proceedings began with a judicial review application filed on 4 July 2014. The applicant continues to rely upon that application which contains one ground:
1.The Refugee Review Tribunal erred in failing to consider a claim that clearly arose as a result of its acceptance that the applicant was bisexual.
Particulars
(a)That the applicant may, as a consequence of her bisexuality, conduct herself in a way which may create a perception that she is a lesbian, thus increasing the chances of being harmed as a result of her real or perceived sexual orientation.
I have before me as evidence the court book filed on 22 August 2014.
Both the applicant and the Minister made oral and written submissions.
Consideration
Applicant’s contentions
The applicant submits that the Tribunal failed to identify an issue that clearly arose from the claims of bisexuality that it accepted[43]. For a person to be the victim of a hate crime based on sexual preference there must be an indication, perceived by the attacker, that the victim has a particular sexual orientation. If for arguments sake the applicant were to dress like a young woman (whatever that might mean) and associate with men it would be doubtful whether she would be identified as a bisexual. Danger to her would be more apparent if she publically identified herself as bisexual or as a lesbian, or dressed as or associated with lesbians, or was in an obviously lesbian relationship, as she may wish to do.
[43] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [63]
The argument is therefore that the Tribunal failed to appreciate that as a consequence of her bisexuality the applicant may appear to be a lesbian, and be perceived as such, which would increase her chances of being harmed because of her perceived sexual orientation. The Tribunal did not consider this issue, or the chances of harm for a Convention reason that may result therefrom.
Minister’s contentions
In Appellant S395/2002 v Minister for Immigration[44] Gleeson CJ said, at 479 [1], that:
on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.
[44] (2003) 216 CLR 473
The Minister submits that his Honour’s observations are apposite to the present case, as at no stage during the visa application or merits review processes did the applicant assert, as she does now, that she fears persecution by reason of her being perceived to be a lesbian (asserted claim). The asserted claim was not expressly made. Nor did it arise clearly or squarely[45] on the evidence and material before the Tribunal, or on the findings of fact that the Tribunal made. Neither the fact that the country information before the Tribunal referred to the LGBTQ community in the USA generally, nor that the applicant gave evidence that she was in a relationship with another woman at the time, detracts from this proposition. The applicant identified her sexual orientation as bisexual and claimed to fear harm on that basis. That claim was considered.
[45] NABE v Minister for Immigration (2004) 144 FCR 1 at 18-19 [58] per Black CJ, French and Selway JJ. See also NAVK v Minister for Immigration [2004] FCA 1695 at [15] per Allsop J and SZSHK v Minister for Immigration (2013) 138 ALD 26 at 35 [37] per Robertson, Griffiths and Perry JJ
In any event, if the Court held that the asserted claim was made, the Minister submits that it was considered. The following reasons are said to support this conclusion.
At various points in its reasons, the Tribunal noted evidence and submissions made by the applicant concerning lesbians and lesbian relationships. At [47]-[48][46], the Tribunal noted the applicant’s claim that she was in a relationship with another woman. At [53][47], the Tribunal noted the applicant’s claim that, after five years of marriage, her ex-husband “discovered that she had a relationship with a girl”. At [56][48], in support of her claim that she feared discrimination on the basis of her bisexuality, the applicant said that “gays and lesbians were killed in the USA merely for being gay.”
[46] CB 553
[47] CB 554
[48] CB 554
It was the fact that the applicant had a relationship with a woman that made her bisexuality a source of fear of harm. Therefore, when the Tribunal referred to the risk of harm to the applicant as a bisexual, that included the risk of her being harmed by reason of her having relationships with women. Plainly, the Tribunal was aware that the applicant was in a relationship with another woman. An obvious, let alone reasonable, inference to be drawn from that fact is that, in assessing the applicant’s claims for protection, the Tribunal was aware that her behaviour may be perceived as that of a lesbian in the USA.
Further, the country information relied upon by the Tribunal in making its findings with respect to the applicant’s fear of harm on the basis of her bisexuality concerned the LGBTQ community generally[49]. This material focused on a broader group, including lesbians, and there is no suggestion made by the applicant that that material was overlooked.
[49] see CB 554-556 [57]-[60] and [62]-[63]
Thus, the Minister submits that when the Tribunal found that the applicant would not be persecuted by reason of her bisexuality, it also found, impliedly, that the applicant would not be persecuted by reason of her being perceived to be a lesbian.
The Minister submits alternatively, that the Tribunal’s findings with respect to the applicant’s fear of persecution on the basis of her bisexuality “necessarily and inevitably denied”[50] any claim to fear persecution by reason of her being perceived to be a lesbian. That is because the factual premise upon which the asserted claim was based (that the applicant would be harmed due to her being in relationships with women) was the central component of the former claim and was rejected[51].
[50] Minister for Immigration v Yusuf (2001) 206 CLR 323 at 354 [95] per McHugh, Gummow and Hayne JJ.
[51] Cf Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ
Further still, at [64][52] the Tribunal found that the applicant would not be subjected to discrimination that is sufficiently serious to constitute persecution on the basis of “bisexuality, or race or for any other reason”. The Minister submits that this finding was sufficient to capture the asserted claim. It was a finding of greater generality that subsumed any specific finding that would have been made with respect to the asserted claim[53].
[52] CB 556
[53] Cf Applicant WAEE v Minister for Immigration (2003) 75 ALD 630 at 641 [47] per French, Sackville and Hely JJ
Resolution
In my opinion, the Tribunal fell into error in relation to a confined but important issue. Before the Tribunal, the applicant raised a claim based on sexual orientation and gender identity[54]. She claimed to have hidden or suppressed her bisexuality in Africa and in the USA but, since having arrived in Australia, to have “come out” and now wished to live openly as a bisexual. The claim was expanded upon in a post hearing submission[55]. The applicant claimed to have commenced a same sex relationship in Australia and to be planning to apply for a partner visa[56].
[54] CB 503
[55] CB 523
[56] I was told at the trial that no such application has been made yet
In its decision, the Tribunal correctly identified the issues in the review at [22][57] and thoroughly canvassed the applicant’s claims, including her bisexuality claim[58]. The Tribunal, while not expressly accepting the applicant’s claim to be bisexual, proceeded on the basis that she was.
[57] CB 548
[58] at [46]-[49] CB 553
It is apparent from the Tribunal’s reasons commencing at [52][59] that the Tribunal considered the bisexuality claim in relation to four issues. The first was whether the applicant faced a real risk of harm from her family in the USA. The Tribunal concluded at [55] that she would not and no issue was taken with the Tribunal’s reasoning in that regard.
[59] CB 554
At [61] the Tribunal dealt with the applicant’s claim that she faced a risk of random violence. The Tribunal dismissed that claim on the basis that there was not a real chance of the applicant experiencing harm and no issue is taken with that assessment. At [62]-[64][60] the Tribunal dealt with the applicant’s claim in relation to societal discrimination. The Tribunal concluded that the applicant would not face a real chance of harm amounting to persecution for the purposes of the Refugees criterion. I see no error in the Tribunal’s approach.
[60] CB 556
There is an issue in relation to the Tribunal’s assessment of whether the applicant faced a real chance of harm as a result of targeted violence. At [56][61] the Tribunal noted:
The applicant stated that she feared being [discriminated] against on the basis of her bisexuality and suffering verbal abuse and prejudice. She stated that gays and lesbians were killed in the USA merely for being gay.
[61] CB 554
The Tribunal then went on to consider the available country information in relation to that issue. At [57]-[58][62] the Tribunal stated:
According to the Federal Bureau of ldentification's (sic) (FBI) 2013 report Crime in the United States, in 2012 an estimated 1,214,462 violent crimes occurred nationwide (the equivalent of 3.8 violent crimes per 1,000 inhabitants). Although the FBI's 2013 report provided no break down on the proportion of violent crime against the LGBT community in the US, a separate FBI report on hate crime indicated that in 2012, US law enforcement agencies reported 1,318 hate crime offences based on sexual-orientation bias. Of these offences, 3.1 percent (the equivalent of 40 offences) were classified as anti-bisexual. The 40 offences classified as anti-bisexual incorporate offences against property, intimidation, simple assault and aggravated assault.
The National Coalition of Anti-Violence Programs (NCAVP) 2013 annual report on hate violence against the lesbian, gay, bisexual, transgender, queer (LGBTQ) and HIV communities in the US provides a similar estimate to the FBI for the number of hate crimes committed in 2012 against the LGBTQ community. NCAVP's 2013 annual report records 2,016 incidents of anti-LGBTQ and HIV community 'hate violence' and 25 anti-LGBTQ and HIV community homicides in 2012. Referring in particular to bisexual victims of 'hate violence', the report noted that bisexuals represented 8.7 percent of survivors and victims' (the equivalent of 117 bisexual victims and survivors), a number consistent with the 2011 year. Commenting more broadly on victims of homicide, the NCAVP report found that in 2012 there was a disproportionate impact of homicides against people of colour, transgender women, and gender nonconforming LGBTQ and HIV-affected people. The report also found that LGBTQ people of color were 1.82 times as likely to experience physical violence compared to white LGBTQ people. (footnotes omitted)
[62] CB 554-555
The critical reasoning of the Tribunal is at [59]-[60][63] where the Tribunal said:
In 2012, a study published by the Williams Institute sought to compare rates of hate crime among different minority groups in the US. According to the study, gay men faced the highest rates of physical assaults and other types of crimes, whilst bisexuals faced the fewest with 1 in 100,000 bisexuals having reported being the victim of a hate-motivated crime. (footnote omitted)
Whilst the NCAVP report indicates that LGBTQ people of colour were 1.82 times as likely to experience physical violence compared to white LGBTQ people, there is no evidence to support a finding that the frequency of serious harm directed against bisexual people is sufficiently high to indicate that there would be a real chance that the applicant would face persecution as a bisexual, or as a bisexual person of colour, if she were to return to the USA now or in the reasonably foreseeable future. The Tribunal does not have a well-founded fear of persecution on this basis.
[63] CB 555
The final sentence at [60] can be put to one side as an obvious error although it created some amusement in the course of oral argument before me. The problem with the Tribunal’s reasoning is not that obvious error but, rather, that it sought to juxtapose the risk facing gays (and lesbians) with the risk faced by bisexuals. Although the applicant identified with the particular social group of bisexuals (or possibly African American bisexuals) it was plain from what the Tribunal said at [56] that the Tribunal recognised that the applicant feared targeted violence of the kind directed at gays and lesbians. Plainly, a bisexual person will spend time in the company of persons of the same sex. The applicant claimed to be currently in a same sex relationship in Australia. While the Tribunal recognised that hate motivated crime was a problem, in particular for gay men, it stressed that the problem was much less for bisexuals. While the Tribunal recognised that LGTBQ people “of colour” were at some risk of harm, it reasoned that the risk facing bisexual people was less than that faced by gays and lesbians. The error made by the Tribunal was to assume that a bisexual person would not be targeted for being gay or lesbian. It was, in my view, clear that the applicant was not specifically apprehending that she would be targeted because she was bisexual but, rather, that she would be targeted because she would be perceived to be a lesbian.
In substance, the ground advanced by the applicant is made out, although I would express it somewhat differently than the specific terminology used in the ground. In my opinion, the Tribunal, while it did consider the applicant’s claim, asked itself the wrong question. The question was not what risk of harm the applicant faced as compared to gays or lesbians. The question was, did the applicant have a well-founded fear of harm by reason of being targeted as a lesbian? By asking itself the wrong question, the Tribunal fell into error and the applicant is entitled to the relief she seeks.
I will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Judge Driver
Associate:
Date: 14 April 2015
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Remedies
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