Gautam v Minister for Immigration & Multicultural Affairs

BEAUMONT J: 1 Before the Court is an application for judicial review of a decision of the Refugee Review Tribunal ("the Tribunal"). A short history of the matter is that the applicant, who is a citizen of Nepal, arrived in Australia on 20 November 1995. On 14 December 1995 he lodged an application for a protection visa. On 30 May 1997 a delegate of the Minister for Immigration and Multicultural Affairs refused to grant the visa. On 20 June 1997 the applicant applied to the Tribunal for review of that decision. On 20 February 2000 the Tribunal affirmed the decision not to grant a protection visa. 2 In order to understand the issues that arise in the application for judicial review, it will be necessary to explain how the Tribunal went about its task. At the forefront of its reasons, the Tribunal stated the test for definition of a refugee under the Convention in accordance with the settled course of High Court authority. I need not mention any part of that aspect of the reasoning, save in one respect. In describing the nature of persecution that falls within the protection of the Convention, the Tribunal said, in accordance with the settled course of authority: "Harm or threat of harm as part of a course of selective harassment of a person, whether individually or as a member of a group which is subjected to such harassment amounts to persecution if done for a Convention reason. In appropriate cases it may include single acts of oppression, serious violations of human rights, and measures 'in disregard' of human dignity. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality." 3 The Tribunal then went on to state the applicant's claims and the evidence as follows. The Tribunal noted that the claims were set out in written submissions to the Department, in written submissions to the Tribunal and in oral evidence given to the Tribunal. The Tribunal noted that the applicant claimed that he is from a prominent upper middle class family and is a Chetree by caste. The Tribunal noted the claim that the applicant's father had been a prominent politician and that the applicant had followed his family into politics and become active in the Congress Party Student Organisation at university. He claimed that like his family, he was known in his local area as an active follower of the Congress Party. The applicant also stated that Nepal is politically unstable. The Tribunal said: "Since the applicant left Nepal, the Congress party has come to power. The applicant initially considered lodging an application for refugee status on this basis. However, his migration agent informed him that he could apply on the basis of his homosexuality." 4 The Tribunal stated that the principal reason that the applicant does not wish to return to Nepal is because he is a homosexual. He claims that he will be persecuted because of his sexual preference and made an outcast in a society which is traditional and conservative. The Tribunal said that the applicant claimed that he had practised his homosexuality since he was a teenager with a companion from the same neighbourhood, there named, who felt the same way about him. He said that they had always had to be extremely discreet about their friendship and the nature of it and had to make sure that their families and friends did not know what was really happening. He said, the Tribunal noted, that pressure was imposed on both of them when they reached marriageable age. He said that the relationship had continued until the applicant had left for Australia and that they had continued to write to each other regularly. 5 The applicant claimed that in Nepal: "… there is massive social pressure to marry and [he] felt uncomfortable and out of place there. There are heavy legal penalties for people caught involved in homosexual conduct which is considered to be quite unnatural. It would bring disgrace to his family if his sexuality were discovered." 6 The applicant claimed that his Nepalese friends in Australia had often expressed their disgust at Australian homosexuals and accordingly he, the applicant, had had to hide his true feelings. He claimed that he had been on discreet visits to homosexual venues in Sydney but was scared of sexually transmitted illnesses. He said that his migration agent had introduced him to a gay Australian man in search of a gay flatmate and that after sharing accommodation for about a month the applicant had decided to move back with his Nepalese friends because of their queries about why he was living with an Australian man. He said that he was often questioned by his Nepalese friends as to why he does not have a girlfriend. 7 The applicant stated to the Tribunal that he hoped to be able to sponsor his companion to stay permanently in Australia if the applicant gained refugee status here. He stated that they could not live together in Nepal; if they were found out the applicant would be "ostracised" and his mother would be disgraced by his behaviour. He claimed that he risked legal prosecution and harassment constantly and that he feared what would happen to him if he were arrested and detained. He said that the Nepalese police and the gaol system were brutal and that he could not expect sympathy or help from relatives. 8 The Tribunal referred to a statutory declaration from a Nepalese homosexual friend who had been granted a protection visa on the basis of his homosexuality and to whom he had been introduced by his migration agent. According to that declaration, the applicant is of homosexual orientation. 9 In a written submission to the Tribunal dated 29 April 1997 the following additional points were made on behalf of the applicant in relation to the treatment of homosexuals in Nepal. It said: "Adult males suffer massive social, religious, legal and other family pressure to deny their identity, to marry and to conform with the overbearing obligations of society to produce a family; There is a complete denial of adult male homosexuality in Nepal; Homosexuals have no identifiable legal avenue of sexual expression, a basic human right; There are religious pressures stemming from the overtly Hindu structure of Nepalese society which proscribes overt expression of any consensual homosexual behaviour; An individual who fails to conform faces total ostracism and isolation from family and the community. As a consequence he has no identity and loses the ability to achieve basic human goals and rights, e.g. employment. He also places himself at constant risk of legal and physical harassment; Homosexuals are the victims of oppressive behaviour and serious harassment at the hands of police and civilian authorities which amounts to persecution within the terms of the Convention. The persecution the applicant would suffer offends the following provisions of the International Covenant of Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) Articles 2.1, 7, 17, 19 and 26 of the ICCPR Article 10.1 of the ICESCR which the applicant maintains creates a freedom not to be forced into marriage." 10 The Tribunal noted that the applicant's adviser had submitted a translation of an article in a Nepalese newspaper entitled "Surprising Incident: Leads to Perversion" as follows: "A few days ago, the administration has arrested two British nationals, known as Nicolas and Howard, who were involved in sexual misconduct by alluring various sexual activities. Nicolas, who committed unnatural acts like oral sex, masturbation and anal sex that are very mean socially as well as religiously, was bailed out on a deposit of Re 28,000 from the central custody five months ago. It is learnt that such activities also took place last year in Pokhara, and that those accused are still at large. In this regard, when the family of an accused was contacted, it is learnt from his maternal uncle that the family had requested not to discuss these issues. In seeking the views of an intellectual and social worker, Mr Ramdev Bhatta, he expressed that he was unaware of existence of gays in Nepal and that he was surprised by the news. He opined that, if such were found, no chance should be allowed for its existence, by taking harsh actions against these social criminals who bring about adverse impact on society, religion and growing youngsters. When contacted Kaski and Chitawan District Administrations in this matter, they also expressed that, if they were informed of any gay activities, they would not hesitate to take harsh actions against them as they are social and religious criminals. The Deputy Superintendent of Police, Mr Dambar Bahadur Kayastha, of Kathmandu District Police Office said that they were aware of some gays hiding in Kathmandu and that they were seriously watching their activities." 11 The Tribunal noted that there had been no certificate as to the authenticity of the original document and that attempts to authenticate the material had not been finalised by the time the Tribunal gave its decision. The Tribunal noted some peculiarities in the translation. 12 The Tribunal said that on 30 March 1998 the representative of the applicant had sent to the Tribunal a report from a body known as Legal Research Associates Law Offices in Khatmandu which stated the following: "… though there do exist no legislation which specifically deals with homosexuality, there exists a provision which prohibits any unnatural sex in the chapter of Sexual Relation with Animal in Nepal. Since there is no interpretation by the Court, it is not yet clear whether the word, 'Any unnatural sex' covers homosexuality or not. So far [as] our interpretation is concerned, homosexuality being hatred [hated] and opined unnatural by the society and reading the social factor along with the stipulated word 'Any' of the above maintains provisions, if falls under the realm of illegality." 13 The Tribunal further noted that there had been submitted to it a printed Nepalese document with an official translation into English which appeared to be a statutory penal code forbidding a number of unnatural offences including bestiality. I need not set this out. 14 The Tribunal then described the response given to it by the applicant at the hearing. The Tribunal noted that the applicant again referred to his close friend in Nepal and stated that their relationship had developed sexual overtones from about the time the applicant attained the age of sixteen years. The applicant stated that Nepal was a conservative society and, accordingly, the applicant could not, he said, tell family and friends about his relationship with his companion. The Tribunal noted that after the hearing the applicant had produced some letters written to him by his companion. Of these letters, the Tribunal said: "While they expressed a desire to be reunited and asked the applicant not to write of 'the secret things' in the opinion of the Tribunal they did not unambiguously amount to evidence of an overtly sexual and forbidden relationship." 15 The Tribunal noted that the applicant again reiterated that there would be pressures from Nepalese society upon him, of a social and religious nature, to marry. He said that in Nepal homosexuals could not reveal their identity. He said that if it was discovered that he slept with boys, his life would be ruined and he and his friend would have to go to gaol. He said that no one in Nepal knew of his homosexuality; that he had never been accused of being a homosexual; and had never been arrested. The Tribunal said that it put to the applicant the advice from the Department of Foreign Affairs and Trade ("DFAT"), to be mentioned below, that there appeared to be no Nepalese law prohibiting homosexuality. The Tribunal noted that the applicant's adviser said that he was familiar with this advice but the applicant himself responded that there was considerable religious and social pressure. He said that if he returned, his mother would be disgraced and he would not be able to live freely with his companion. 16 On behalf of the applicant, there was submitted to the Tribunal, and the Tribunal noted, correspondence from a Mr Khan of the Naz Foundation dated 14 September 1998 which stated, inter alia, in relation to male-to-male sex in South Asian countries that: "… it is recognised that there is no systemic abuse of gay men and men who have sex with men in these countries led by political and/or judicial way. What may occur from time to time is localised harassment of those who visit public environments to meet their partners … local thugs … will beat up individuals … local police may also attack and harass men visiting these parks, especially male sex workers …. I am not pleased with the Review [Tribunal], where they are apparently misunderstanding the whole situation. Once again homophobia, racism, and other issues (in the land of Pauline Hanson) appears to surround these decisions." 17 Reference was also made by the Tribunal to a report on homosexuality in Nepal, submitted on behalf of the applicant, by a Dr Kondos which had concluded that being a homosexual in Nepal puts those individuals "at great risk". The report went on to state, the Tribunal noted, that the US State Department makes no reference to homosexuality as it is outside the parameters of human right reports. 18 The Tribunal noted that it was strongly submitted, on behalf of the applicant, that contrary to the advice from DFAT, to be mentioned below, homosexuality was regarded as unnatural and therefore against the law in Nepal and there was evidence of police brutality in Nepal. 19 The Tribunal then proceeded to summarise the independent evidence in its possession. It referred to a statement in a text published in the United States entitled "The Third Pink Book - a Global View of Lesbian and Gay Liberation and Oppression" in which it was stated that in Nepal homosexual behaviour is illegal; that socially, homosexuality is "taboo"; and that there was no visible support for gay and lesbian rights. 20 The Tribunal then referred to the DFAT country information report on Nepal dated 17 February 1997, on the subject of the treatment of homosexuals, as follows: "There is no legislation concerning homosexuality in Nepal. As such, there are no statutory penalties for homosexual acts or homosexuality. However, recently, some cases have been registered in courts against sexual abuse of children …. As there are no laws pertaining to homosexuality per se, the question of enforcement of these laws does not arise …. Homosexuals receive the same treatment from police as any other citizen of Nepal …. Homosexuality is not openly discussed or practised in Nepal. It is said that there are few known homosexuals in Nepal. In general, homosexuals are neither publicly ostracized nor discriminated against …." 21 The Tribunal further referred to a letter to the First Secretary of the Australian Embassy from Kusum Law Firm of Kathmandu dated 2 December 1997. The lawyer's letter was in these terms: "I have perused the Nepalese Laws relating to the homosexuality. In Nepal, homosexuality is not accepted social or moral norm. Therefore there is no special legal provision on homosexuality. However, homosexuality is treated as an unnatural sexual offence and the case may be filed in accordance with the Section 4 of the Chapter on Bestiality of the Code of Country (Muluki Ain). The section lays down that, if someone found indulging in an unnatural sexual act he/she shall be subject to the publishment up to 3 month imprisonment or NRs. 100/fine. There are also instances where an offense of homosexuality is prosecuted by the Public Prosecutor under Certain Public (Offences and Punishment) Act on charge of socially apprehensive and destructive act of obscenity to the detriment of the public at the Office of the concerned Chief District Officer. If found guilty, the Chief District Officer may impose punishment up to two years imprisonment or up to NRs 10,000 fine or both. In my opinion such a prosecution on offence of homosexuality under Certain Public (Offences and Punishment) Act is not legally correct though there has been no legal interpretation so far. In my opinion, section 4 of the chapter on Bestiality of the code of the Country is directed to the gay community and explicitly proscribes homosexual conduct." 22 The Tribunal noted other material, including information from the Naz Project, dealing with the persecution of homosexuals in South Asia dated January 1996 as follows: "Physical affection between men and women in public is not socially acceptable and often can be dangerous for both. For many men, because women are just not accessible, romantic longings are at a distance, unfulfilled, chaste, and often filled with a sexual urgency. All this emotional and sexual energy, this romantic longing, the affectional needs and desires, have very few socially acceptable outlets. However, intense male friendships are formed within homoaffectionalist frameworks which include extensive touching, holding of hands, body contact, and the sharing of beds. And this is socially acceptable! The line between homoaffectionalism in such a homosocial environment and actual homosexual behaviour is a narrow one, and many men cross this line in situations that enable the behaviour to maintain its invisibility. Thus often two boys/men sharing a bed under the same blanket may find it easier to sexually touch each other without consciously acknowledging the fact. This is maasti. A lot of this sex is between relatives; uncles and nephew, cousins, in-laws, where space and time afford it. Sex with another male is not seen as a permanent feature, even though it may be actually be so, but rather an additional, situational and opportunistic outlet. The constant expectation is that one day the person will be married and have children, and perhaps they may be able to afford sex with a female prostitute. Here sex is discharge." 23 The Tribunal referred to other independent evidence, some of which the Tribunal indicated it did not regard as providing "an authoritative account given the methodology used". 24 The Tribunal then proceeded to express its findings and reasons as follows. The Tribunal accepted that the applicant had an intimate relationship with his childhood friend, however, the Tribunal found their behaviour was not condemned by their families or by society generally. The Tribunal said that Mr Khan's paper, mentioned above, makes it clear that in the South Asian context, sharing a bed and intimate contact therein is socially acceptable "homoaffectionalism". The Tribunal was of the view that the applicant's past relationship fell within that description. 25 The Tribunal noted that the applicant had not claimed that he was persecuted for his relationship in the past and the question is whether there is a real chance that he would be in the future. The Tribunal said that it was not satisfied on the evidence that the applicant's relationship with his childhood companion continues. The Tribunal gave a number of reasons for that to which I need not, for present purposes, refer. In particular, the Tribunal was not satisfied that the letters submitted after the hearing were written by that companion. The Tribunal said that the applicant appeared to be more comfortable living with fellow Nepalese rather than Australians. 26 The Tribunal then said: "While the matter of his homosexuality is in doubt, it is clear that he had not thought to seek protection on this basis, rather, this suggestion came from his adviser. However, there is nothing in his evidence to suggest that he had expressed a fear of persecution for this reason. I am not prepared to accept that he has a subjective fear of being persecuted for reason of his homosexuality." 27 The Tribunal said that it did not find any basis for the claim that the applicant was gay; and further rejected the claim that the applicant could not live together with his childhood companion in Nepal on the basis that he would be ostracised and that his mother would be disgraced. The Tribunal again referred to the independent material cited above and put aside the article in the Nepalese newspaper already mentioned. The Tribunal said: "I am prepared to accept that homosexual men in Nepal can be construed as a particular social group. The issues before me are whether the applicant is a member of that particular social group and whether he has a well-founded fear of being persecuted as a member of that group. I am not satisfied, on the evidence before me, that the applicant is a homosexual, and that even if he were he would be persecuted in Nepal for this reason. He has not claimed that he was persecuted for being a homosexual in Nepal in the past. The evidence before me does not satisfy me that there is a real chance of his being persecuted for reason of his belonging to a particular social group. I cannot be satisfied that he would be so for this or for any other Convention reason." 28 The Tribunal then expressed its conclusion as follows: "I do not accept that the applicant's relationship with his childhood friend is a continuing one. The evidence before me points to his having had no more than a socially acceptable 'homoaffectional' relationship as described in the Khan evidence. He did not pursue an overt or even covert homosexual lifestyle in Nepal. Nor am I satisfied that he has adopted either an overt or covert homosexual life-style in Australia which would cause him to be discriminated against in Nepal in the future. The Tribunal regards the brief relationship, if it indeed existed, that his adviser encouraged him to enter into as not amounting to his being willing to continue this way of life in Australia or in Nepal - he was afraid of his Nepalese friends' comments and soon returned to live with them, and he fears contracting AIDS. The Tribunal accepts that there is societal discrimination against homosexuality in Nepal, as there is, no doubt in many other countries. Even if the applicant were homosexual, on the basis of all the evidence, including his own evidence about his conduct and lifestyle in Australia, I do not accept that his future conduct would be such as to invite ostracism, disgrace, or any legal penalties. The Khan evidence, specifically, has stated that it is recognised that there is no systemic abuse of gay men and men who have sex with men in South Asian countries which is politically or judicially led, and which, therefore would support a Convention claim. Family ostracism and social pressures and discrimination do not, of themselves, amount to persecution in the Convention sense: MMM v MIMA (1998) NG 525 at 3 per Madgwick J. The applicant therefore does not satisfy the criterion set out in s.36(2) of the Act for a protection visa." 29 On behalf of the applicant a number of matters were argued but, in my opinion, with one exception, they are without substance. They are, in my analysis, no more than an attempt to achieve judicial review on the merit and an attempt to invite the Court to embark upon a review of the facts, something that is clearly beyond this Court's jurisdiction. 30 However, there is one aspect of the applicant's argument which requires specific attention. It has been noted that in expressing its conclusion, the Tribunal said that the Khan evidence, specifically, has stated that it is recognised that there is no systemic abuse of gay men and men who have sex with men in South Asian countries "which is politically or judicially led". On behalf of the applicant, it is submitted that the Tribunal misunderstood the legal principles in this area, that is to say, it is submitted that it is not the law that persecution must be "politically" or "judicially" led in order to be protected by the Convention. Reliance is placed upon the well-established principles in this area referred to by Hely J in Rahman v The Minister for Immigration and Multicultural Affairs [1999] FCA 73 to the effect that persecution can have the requisite "official" quality if it is official or officially tolerated or uncontrollable by the local authorities. It is true that, if the passage I have mentioned from the Tribunal's ultimate conclusion is read in isolation, it could perhaps give one the impression that the Tribunal has too narrowly confined its approach to the problem, but it will be recalled that the Tribunal opened its discussion of its task by stating, amongst other things, the following: "The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality". 31 It appears, therefore, that the Tribunal correctly appreciated the legal test in this area and so stated it. When later in its conclusion it came to make a reference to abuse being politically or judicially led, it was clear that the Tribunal was there referring to the Khan evidence in its own context. In my opinion, no error of law has been established in this connection. 32 For the sake of completeness, I would add that although a submission was developed on behalf of the applicant that there was no evidence to support the Tribunal's finding that the applicant did not have a subjective fear of persecution for reasons of his homosexuality, there is, in my view, no foundation in that submission. The matter is readily answered by a reference to the terms of the Tribunal's decision and the process of reasoning revealed by that decision which I have endeavoured to summarise. 33 It follows, therefore, that the application must be dismissed with costs.