Kabir v Minister for Immigration & Multicultural Affairs

Federal Court of Australia|2001-07-26|Before: Lindgren J

1 Section 29 of the Migration Act 1958 (Cth) ("the Act") provides that subject to the Act, the respondent ("the Minister") may grant a non-citizen permission, to be known as a visa, to travel to and enter Australia or to remain in Australia or to do both. 2 The applicants apply under subs 476(1) of the Act for review of a decision of the Refugee Review Tribunal ("RRT") affirming a decision of the Minister's delegate ("the Delegate") not to grant them protection visas permitting them to remain in Australia. It is not in dispute that the Minister delegated all relevant powers to the Delegate pursuant to s 496 of the Act. 3 Section 65 of the Act provides that after considering a valid application for a visa, the Minister, if satisfied of the matters specified in the section, is to grant the visa, or, if not so satisfied, is not to grant the visa. The validity of the applicants' applications for the protection visas is not in question. One of the matters specified in s 65 is that the criteria for the visa specified by the Act or the regulations have been satisfied. Section 36 of the Act provides that a criterion for the grant of a protection visa is that the applicant for it is a non-citizen in Australia to whom Australia has protection obligations under the Convention Relating to the Status of Refugees done at Geneva on 28 July 1951, as "amended" by the Protocol Relating to the Status of Refugees done at New York on 31 January 1967 (compendiously, "the Convention"). Australia is a party to the Convention. 4 Article 1A(2) of the Convention provides that a refugee is any person who: "owing to 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." 5 Criteria to be satisfied by an applicant for a protection visa at the time of the decision on the application also include the criterion specified in cl 866.221 of Schedule 2 to the Migration Regulations 1994, which is that the Minister is satisfied that the applicant is a person to whom Australia has protection obligations under the Convention. 6 The RRT's decision was a "judicially-reviewable decision" (par 475(1)(b) of the Act); the applicants were entitled to apply to this Court for review of it on certain grounds (s 476); and the Court has the jurisdiction provided by Part 8 of the Act, but no other jurisdiction, with respect to it (ss 485, 486). 7 The applicants' case is that they are outside the country of their nationality, Bangladesh, and are unwilling to return to it because of a well-founded fear of being persecuted for reason of their membership of a particular social group, namely, homosexual men in Bangladesh.

PROCEDURAL BACKGROUND 8 The applicants' arrived in Australia on 19 February 1999. On 4 March 1999 they applied for protection visas. The Delegate refused their applications on 23 April 1999. On 17 May 1999 they each applied to the RRT for review of the Delegate's decision. The RRT conducted a hearing of both applications together on 21 February 2000. On 22 February 2001 the RRT affirmed the Delegate's decision. On 16 March 2001 the applicants filed a single application in this Court for review of the RRT's decision.

THE REASONS FOR DECISION OF THE RRT 9 The RRT described "The Main Issues" as follows: "Mr Kabir and Mr Rahman are homosexuals. They claim that they have been ostracised by their families because of this and that people in the area where they lived attacked them and a fatwah (judgement by a local religious council) was issued condemning them to death when their sexual preference became known. They fear that they will be killed or face other serious harm if they return to Bangladesh. For the purposes of this decision, I accept that homosexual men in Bangladesh constitute a particular social group under the Convention. The issues which remain to be determined are whether the claims made by Mr Kabir and Mr Rahman are credible and whether their fears of persecution for reasons of their membership of the particular social group of homosexual men in Bangladesh are well-founded. Mr Kabir and Mr Rahman lodged separate applications, but agreed to have their cases heard jointly. Because their claims are closely linked, I have written a joint decision for their cases. However, I have considered them separately, taking into account all of the evidence relating to each case." 10 The RRT examined independent information relating to "The Situation of Homosexual Men in Bangladesh" and concluded as follows in a paragraph which has proved important for present purposes: "From this evidence it is clear that homosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh. To attempt to do so would mean to face problems ranging from being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police. However, Bangladeshi men can have homosexual 'affairs' or 'relationships', provided they are 'discreet'. Bangladeshis generally prefer to deny the existence of homosexuality in their society and, if possible, will ignore rather than confront it. It is also clear that the mere fact that two young men held hands or hugged in the street would not cause them to be seen as homosexuals, and that being caught 'engaging in sexual activity on one occasion' would be most unlikely to cause a young single man to be 'labelled a homosexual'." 11 The RRT proceeded to address the "Claims and Evidence" relevant to each applicant. I do not find it necessary to summarise the RRT's account. The applicants claimed to have met in July 1994 and to have lived together from October 1994 to date. They said they were ostracised by their families because of their homosexuality. A particular claim was that on 12 July 1998 a number of local people stopped them in the street and questioned them about their relationship then kicked and beat them and destroyed their possessions in their flat. Another particular claim was that local fundamentalists issued a fatwah (a judgment made by a Salish or local religious council) against them to the effect that they should be stoned to death. 12 The RRT's "Findings and Reasons for Decision" commenced as follows: "I accept that Mr Kabir and Mr Rahman are homosexuals and that they have lived together since 1994. I also accept that they have been ostracised by their families, Mr Rahman since the 1980s and Mr Kabir since 1994. However, apart from ignoring them, their families have done nothing else to harm them. And despite being ostracised by their families, they have been able to obtain and keep good jobs, find accommodation and lead relatively normal lives. In these circumstances, while being ostracised by their families is no doubt very distressing for both men, it does not constitute persecution under the Convention. I found much of the evidence given by both men regarding the problems which they faced during their time together to be lacking in credibility." 13 There followed a series of rejections by the presiding Member of particular claims. One of present interest is the following: "…given the attitude towards homosexuals in Bangladesh, of which Mr Kabir was clearly aware, it is not plausible that he would have told the police he was being harassed because he was a homosexual. He might have complained about being harassed, but I do not believe he would have told the police that he was a homosexual." Counsel for the applicants relies on this passage as demonstrating an implicit finding that the police shared "the attitude towards homosexuals in Bangladesh" and would not have protected Mr Kabir or would themselves have harmed him if he had revealed his homosexuality, and that Mr Kabir knew this to be the case. Counsel for the applicants submits that such an implicit finding is consistent with the presiding Member's summary of the independent country information set out earlier. I accept this submission, but discuss its significance later. 14 The RRT concluded its "Findings and Reasons for Decision" as follows: "From the evidence set out above it appears that homosexuals would probably be 'shunned by friends and family' and perhaps 'even bashed by the police'. However, it does not suggest that a fatwa such as this would be issued. After considering all of the evidence, I accept that Mr Kabir and Mr Rahman are homosexuals and that they lived together in Bangladesh from 1994 until their departure from the country in early 1999. I also accept that they were shunned by their families because of their homosexuality. They may also have been the subject of gossip and perhaps even some taunts from neighbours who suspected they were homosexuals. However, I do not believe that this constitutes serious harm amounting to persecution under the definition. Mr Kabir and Mr Rahman did not experience serious harm or discrimination prior to their departure from Bangladesh and I do not believe that there is a real chance that they will be persecuted because of their sexuality if they return. As discussed above, while homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it. Mr Kabir and Mr Rahman lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families. They clearly conducted themselves in a 'discreet' manner and there is no reason to suppose that they would not continue to do so if they returned home now."

REASONING 15 By their amended application for an order of review filed on 21 June 2001, the applicants rely on the grounds identified in pars (b), (c), (e) and (g) of subs 476(1) of the Act. They do so, relying in various ways on a suggested inconsistency between on the one hand, the RRT's general finding, based on independent country information about homosexuality in Bangladesh, coupled with its finding that the applicants are homosexuals who lived together in Bangladesh from 1994 to February 1999, and, on the other hand, its finding, founded largely on its rejection of numerous specific claims they made, that they were not persecuted in Bangladesh on account of their homosexuality and do not have a well-founded fear of persecution if they were to return home now. 16 The nature of the case sought to be made by the applicants requires that the RRT's finding (set out at [10] above) based on the independent country evidence be given closer attention. In that passage, the RRT distinguished between two things. One was to "live openly as a homosexual", to "be seen as homosexual" and to "be labelled as a homosexual". This would lead to "problems ranging from being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example, the possibility of being bashed by the police. The other was to have "discreet" homosexual "affairs" or "relationships", or for two young men to hold hands or to hug "in the street" or even to be "caught engaging in sexual activity on one occasion", which would not give rise to problems for the individual. 17 Reading the passage in question fairly in the light of the summary of the independent country information which preceded it and in the light of the passage from the RRT's Reasons set out at [14] above, I think the RRT was distinguishing between a relationship which is perceived as challenging the values and mores of Bangladeshi society, and one which is not. The key to the distinction is, as the presiding Member found in the passage in question: "Bangladeshis generally prefer to deny the existence of homosexuality in their society and, if possible, will ignore rather than confront it." It is only if a homosexual couple force Bangladeshi society to confront their homosexual identity that they will encounter problems. I think the word "relationships" in the passage set out in [10] above was intended to include long-term relationships as well as transitory ones. That this was the RRT's intention is indicated by what it said in the passage set out at [14] above. 18 Into which category does the relationship between the applicants fall? They lived in Bangladesh together in a homosexual relationship from 1994 until they left that country in February 1999. How their relationship would be perceived would, according to the RRT, depend on whether it was "discreet" or "open". The meanings of these alternatives read in isolation are not plain. The RRT's reasons state no more than that the applicants lived together in a discreet manner for the period mentioned without encountering any problem. 19 The applicants did not complain that they had to modify their behaviour so as not to attract attention: cf Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 (Madgwick J); Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 (Madgwick J) at [25]-[26]; Oo v Minister for Immigration & Multicultural Affairs [2001] FCA 348 (Lindgren J) at [42]-[48]. Apparently, therefore, they lived together in the way in which they wished to do. In sum, in living together in the way in which they did, they were naturally "discreet" and not "open", according to the meanings those words had for the RRT. According to this understanding of the passage set out at [10] above, which, I think is correct: · the applicants are able to return to Bangladesh and to resume living there in a homosexual relationship as they did previously without a well-founded fear of being persecuted for reason of their homosexuality; and · Bangladeshi society's antipathy towards those who "live openly as" homosexuals is not inconsistent with the RRT's rejection of the applicants' allegations of specific instances of persecution. 20 But what is to be made of the implicit finding referred to at [13] above? The RRT was dealing with a claim that people in Shantipura taunted and harassed the applicants in their home and that Mr Kabir complained to the police and told him that he and Mr Rahman were homosexuals. The gravamen of the finding is that if, contrary to another finding of the RRT, the applicants had been living openly (non-discreetly) in a homosexual relationship, that is, in a relationship which challenged Bangladeshi society and to which it could not turn a blind eye and which was therefore apt to prompt persecution, Mr Kabir would not have told the police that he was being harassed as a homosexual because it is likely that the police would have "joined in". But the RRT's finding was that the applicants "conducted themselves in a discreet manner" and so there was no taunting by the local people and nothing about which Mr Kabir had cause to complain to the police. 21 According to my understanding, outlined above, of the passage in question, there is no unreasonableness, illogicality or inconsistency in the RRT's Reasons for Decision, and the occasion does not arise for me to consider whether, if there had been, a ground of relief identified in para (b), (c) or (e) of subs 476(1) is made out; cf Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356-357 per Mason CJ; Minister for Immigration & Multicultural Affairs v Epeabaka (1999) 84 FCR 411 (FC) at [20]-[26]; Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 (FC); Gamaethige v Minister for Immigration & Multicultural Affairs [2001] FCA 565 (FC); Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30 esp at [36]-[44] per Gaudron J, [76]-[83] per McHugh, Gummow and Hayne JJ, with whom Gleeson CJ agreed. I am, however, of the view that the supposedly inconsistent findings of fact would not have established any of those grounds. 22 There is no substance in the par 476(1)(g) ground. The RRT did not base its decision that the applicants did not have a well-founded fear of persecution on account of their homosexuality on the existence of a particular fact which did not exist. The RRT gave reasons for not accepting the applicants' allegations of specific instances of persecution.

CONCLUSION 23 For the above reasons the application should be dismissed with costs. I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Solicitors for the Respondent: Blake Dawson Waldron

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