Minister for Immigration & Multicultural & Indigenous Affairs v SZFDJ - [2006] FCAFC 53 - FCAFC 2006 case summary — Zoe

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Minister for Immigration & Multicultural & Indigenous Affairs v SZFDJ

[2006] FCAFC 53

Federal Court of Australia (Full Court)|2006-04-28|Before: Mansfield JJ

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Federal Court of Australia (Full Court)

Decision date

2006-04-28

Before

Mansfield JJ

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Judgment (81 paragraphs)

[1]

THE COURT: 1 This is an appeal from orders of the Federal Magistrates Court of 19 May 2005 in the nature of certiorari and mandamus directed to the Refugee Review Tribunal ("the Tribunal") quashing a decision of the Tribunal of 13 October 2004 and directing the Tribunal to consider the applicant's application according to law. The decision of the Tribunal had been to affirm a decision of the appellant Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refusing the applicant, now the first respondent, SZFDJ, a protection visa. 2 SZFDJ is a Bangladeshi citizen who arrived in Australia on 19 February 1999 and applied for a protection visa on 22 March 1999. In his initial statement in support of his application, he claimed to have been actively involved in student politics in Bangladesh as a supporter of the Bangladesh National Party ("BNP") and asserted that, in the course of those activities, he attracted hostility and physical violence from supporters of the Awami League who also looted his home and assaulted his father. He claimed that, after the Awami League's accession to power in 1996, he and a friend were, on 26 March 1997 attacked in a café by Awami thugs. As a result of that attack, he said, he had been hospitalised for nearly a month in a private clinic. His application for a protection visa based on a fear of persecution by reason of his political opinions was refused by a delegate of the Minister on 20 April 1999. 3 However, before his application for review of that refusal was heard by the Tribunal, he abandoned his reliance on a fear of persecution by reason of political opinions and claimed, instead, to fear persecution in Bangladesh by reason of his homosexuality. His statutory declaration raising that new ground contained these paragraphs; '2. I refer to the statement which I signed on 20 March 1999. This statement was prepared by my previous adviser who advised me what to say. I now advise, the Tribunal that I was never involved in politics and the claims that are contained in that statement from paragraph 3 on relating to my alleged involvement in political activity are not correct. I apologise to the Tribunal for providing this incorrect and misleading information. When I came to Australia, I did not understand what I was doing and relied on the advice that was given to me by my then agent. I now realize that it is very improper to provide misleading information. I can only ask the Tribunal to understand that I was inexperienced with immigration laws and did not understand what I was supposed to do.

[50]

13 Another example of what the Federal Magistrates Court regarded as the Tribunal's falling into the same type of error was its treatment of the evidence of the witness AAAA to the effect that he had been assaulted in Bangladesh by two policemen but had been spared further mistreatment by the intervention of their superior officer. In respect of that evidence, the Tribunal had commented; '… even in Sydney, being in the wrong place at the wrong time can have serious consequences whether one is homosexual or not. And I do not accept that this account in itself constitutes proof that there is a real chance that the applicant would suffer physical attack in Bangladesh for reason of homosexuality. I note in this context, the witness has not been deterred from making several visits to Bangladesh.' 14 However, the learned Federal Magistrate regarded the evidence of AAAA as demonstrating a real chance that SZFDJ, if returned to Bangladesh, would suffer a physical attack by reason of his homosexuality. His Honour concluded, at [24] of his reasons; 'To my mind it is not a fair comment to say that "even in Sydney being in the wrong place at the wrong time can have serious consequences, whether one is homosexual or not". If the Tribunal member is suggesting that there are places in Sydney where one can expect to be assaulted by police of the rank of constable but not subject to the same ill treatment by police inspectors, this is the most extraordinary proposition. The evidence does not support the construction that the Tribunal put on it. It is evidence entirely to the contrary. As such, it is on all fours with the situation in Minister for Immigration & Multicultural & Indigenous Affairs v VLAR and SFGB v Minister for Immigration & Multicultural & Indigenous Affairs. The very question of suffering violence or humiliation on account of being a homosexual in Bangladesh goes to the very heart of the Applicant's claim. In my view, this is quite clearly a jurisdictional error. I propose therefore to grant the application.'

[51]

(a) The availability of the "no evidence" ground. 15 Counsel for the Minister contended that, if the Tribunal had made a finding of fact for which there was no evidence, that did not amount to jurisdictional error because none of the facts so found was a "jurisdictional fact". The three findings by the Tribunal for which it might be said there was no evidence as identified by Counsel for the Minister were: (i) that SZFDJ would not be perceived by police or petty thugs as a kothi; (ii) that SZFDJ would be able to exercise his right not to marry and any adverse family reaction to the exercise of that right would not amount to persecution; (iii) that there was not a real chance that SZFDJ would suffer physical attack in Bangladesh for reasons of homosexuality. 16 As to the first of those matters, it was submitted on behalf of the Minister that the Federal Magistrate had himself acknowledged that there was some evidence which supported a finding that SZFDJ did not identify himself as a kothi. Moreover, the Tribunal had discerned some evidence in the photographs described in the first of the paragraphs reproduced at [11] above that supported a finding that SZFDJ would not objectively be identified as a kothi as distinct from simply homosexual. As well, it was submitted that SZFDJ's own description of how his relatives and friends, including his parents, had not known while he was in Bangladesh that he was gay afforded further evidence in support of this finding imputed to the Tribunal. 17 The second matter going to the right not to marry was said to be supported by the statement in SZFDJ's statutory declaration of 1 October 2004 that "I cannot get married and pretend that I am straight either". In any event, it was said to be open to the Tribunal in the absence of evidence supporting the rejection, to reject the first respondent's claim that he would be forced to marry. Finally, in this context it was said that whether the consequences of not marrying would amount to persecution was a question of fact for the Tribunal; SZBOV v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1407 at [19]. 18 In respect of the third question of fact, whether there was a real chance of the first respondent's being physically attacked in Bangladesh simply by reason of his homosexuality, Counsel for the Minister submitted that there were other inferences available from the evidence of AAAA including that he had been attacked by the police because he had been "in a place where it was not wise to be"; ie, in the wrong place at the wrong time, or had been thought to have been engaged in prostitution. 19 The analysis by Counsel for the Minister of the Federal Magistrates Court's treatment of each of the three matters just discussed was said to support the view that his Honour had acted on his own view of how the evidence should have been treated and had impermissibly strayed into "merits review". The Tribunal was not required to be satisfied by the evidence that SZFDJ was not entitled to a protection visa. Rather, if the Tribunal was not satisfied of the existence of a well-founded fear of persecution for a Convention reason it was bound to affirm the delegate's refusal of a visa; SJSB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 225. Mere illogicality in the process of reasoning which leads the Tribunal to reject a particular assertion of fact by an applicant does not amount to jurisdictional error. This is not a case where the Tribunal's treatment of particular factual issues either gave rise to the inference that it had asked itself a wrong question or applied inappropriate criteria or created a reasonable apprehension of bias.

[62]

26 Folios 371-501 of the Bundle of Relevant Documents comprised a publication of some 132 pages entitled "Sex, Secrecy and Shamefulness" published in 1997 by the "Naz Foundation International" an international HIV/AIDS and sexual health agency working in Asian countries. SZFDJ, through his solicitors, had submitted to the Tribunal a later, 8 page, publication of Naz Foundation International entitled "Briefing Paper No 7" which had been published after May 2002. 27 Mr Karp of Counsel for SZFDJ articulated two separate, but related, complaints about the Tribunal's treatment of the 1997 publication, Sex, Secrecy and Shamefulness. The first was that the Tribunal's failure to disclose to the visa applicant or his solicitor the use to which it considered the document could be put in contradicting the risk of harm to which he would be exposed by reason of his homosexuality, if returned to Bangladesh, itself constituted a denial of procedural fairness. In this context, Counsel relied, first, on Kioa v West (1985) 159 CLR 550 where Brennan J observed, at 628; 'A person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise: Kanda v Government of Malaya [1962] AC 322, at p 337; Ridge v Baldwin [1964] AC, at pp 113-114 per Lord Morris; De Verteuil v Knaggs [1918] AC, at pp 560, 561. The person whose interests are likely to be affected does not have to be given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance. Administrative decision-making is not to be clogged by inquiries into allegations to which the repository of the power would not give credence, or which are not relevant to his decision or which are of little significance to the decision which is to be made. Administrative decisions are not necessarily to be held invalid because the procedures of adversary litigation are not fully observed. As Lord Diplock observed in Bushell v Environment Secretary [1981] AC, at p 97:

[70]

30 It was accepted that mere departure from, or failure to honour, a representation made by an administrative decision-maker will not, in every case, vitiate the decision. The departure or failure must work a positive unfairness to the person affected by the decision; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at 12-13. In some cases, the demonstration of such an unfairness may require affirmative evidence that the person affected held a subjective expectation which caused him or her to do or omit to do something. In other cases, the omission to do something like commenting upon, or responding to, particular material may be a necessary inference from the circumstances. 31 In the present case, Counsel for the first respondent demonstrated that several specific findings of fact by the Tribunal were based squarely on passages in the 1997 Naz Foundation publication. 32 The first such finding was that to be found in the second of the paragraphs from the Tribunal's reasons reproduced at p 5 above. That finding was that the visa applicant's statement that he would not be able to involve himself in social or religious activities "flies in the face of country information." The country information to which the Tribunal there referred was clearly that contained at p 43 of the 1997 Naz publication where it was recorded that; 'During the workshop, on Friday, the majority of the participants went to the local Mosque for prayers. All those who stated they were Muslim and were questioned and interviewed said that they participated in the religious festivals and community prayers. All accepted Allah as the one God and Mohammed as his Prophet. None could conceive anything else. I say none, but this is not strictly true. Two gay-identified men found Islam oppressive.' 33 The second finding in this category was that in the third of the paragraphs reproduced at p 5 above that SZFDJ would not be treated as "a lower class animal." The Tribunal expressly referred to the Naz report on the condition of the workshop participants in that study as making "no mention of this as being a problem for any of their workshop participants." 34 Thirdly, the Tribunal found, in the last of the four paragraphs from its reasons reproduced at p 5 above, that "Gay Bangladeshis, including in particular the very conspicuous "kotis" are able to look for partners in many places openly and safely." That finding appears to have been based on the review in the 1997 Naz report of some twelve "sites" which were among twenty-five in Dhaka "identified by the survey team where male sexual partners are available at various times during any given week." The anecdotal evidence about the "koti" who lives with his "panthi" and had taken drugs to enhance his breasts, which was recorded in the same paragraph of the Tribunal's reasons can be traced to the Naz review of "Site One" at p 58 of the 1997 publication where the "koti" concerned was identified as a lift boy in one of the larger hotels who "goes to the park 3 or 4 times a week where he averages 5 clients an evening." 35 The final finding of the Tribunal which can be traced to the 1997 Naz publication also contains an express reference to that publication to the effect that; 'Such evidence as there is regarding abuse of men who have sex with men largely refers to attacks on "kotis" and even this does not occur everywhere in Dhaka - for example, the Naz report quoted above refers to several sites as being pickup spots which are free of this type of harassment." 36 That finding was squarely based on the review by the authors of the 1997 Naz report of the "Sites" noted at [34] above. In respect of "Site One" the authors noted; 'Sometimes local police will conduct a raid in the park and arrest specific individuals "for causing a nuisance". Often those arrested will be blackmailed for money and/or for sex. There are also at times, several "mastans" (young thugs), who harass the kotis physically and verbally, and take money from them, sometimes demanding sex as well.' 37 As to "Site Two", the 1997 Naz publication observed, at p 58; 'There appears to be very little harassment either from police or local security.' 38 In respect of "Site 9", a "major religious site in a suburb of Dhaka" it was recorded that "on Thursday evenings there are about 120-150 civil kotis, professional kotis and a few hijras operating from this site ….. The average number of clients per night for kotis will vary between 3-12. Kotis and panthis here are usually from lower income groups ….. there appears to be no harassment either by police, local people, or worshippers." 39 In relation to "Site 11" it was observed; 'The park is busy six days a week (not Fridays) and those using the park for sexual contact tend to be primarily middle class. Kotis are not so common here and a number of sexual networks operate from here to [sic]. There has been police and mastans (local thugs) harassment from time to time.' 40 The 1997 Naz publication made no reference to harassment or abuse of kotis at any of the other sites reviewed at pp 58-61 of that publication under the heading "Sexual Networking." 41 The learned Federal Magistrate appears not to have understood that there were two Naz reports available for recourse by the Tribunal to obtain country information. The first was the larger, 1997, report which the Tribunal apparently had available from its own resources and the second was the 2002 document which had been adduced in evidence or made available to the Tribunal by SZFDJ's legal advisers. His Honour's misapprehension is borne out, we consider, by these paragraphs from the reasons below; '11. Turning to the first of those claims, which relates to the Applicant's claim of being denied natural justice, I note that this report entitled Sex, Secrecy and Shamefulness is a report that was prepared by an organisation call the Naz Foundation. The particular report was one of two reports by the Naz Foundation prepared upon this subject and the report to which Mr Karp refers is the 1997 version, the earlier of the two. The submission by Mr Johnson of counsel for the Respondent relating to the alleged failure to disclose country information, being an allegation of a breach of natural justice, says at page 5 of the submission that the Applicant's complaint overlooks the fact that the Applicant himself put forward the country information referred to, in particular the Naz report. As well, the Applicant was represented by a solicitor, Mr Bitel, at the Tribunal hearing. Counsel submitted that the Applicant would plainly have been aware that the material would have made reference to the Naz Foundation. The Applicant and the Applicant's solicitor were present throughout the hearing.

[72]

42 It is true that the second Naz foundation report prepared in 2002 had been submitted to the Tribunal by Mr Bitel, the solicitor for the visa applicant. However, there is nothing in the material to which our attention has been drawn which establishes that SZFDJ or his advisers had been "obviously aware" or could be assumed to have been aware, of the earlier, 1997, Naz report. 43 Mr Johnson of Counsel for the Minister sought to overcome this difficulty by pointing out that there was no evidence that the first respondent's solicitor was not aware of the 1997 Naz report. Nevertheless, the concerns expressed by Brennan J in the passage from Kioa v West quoted at [27] above are not met by showing merely that a person affected was aware of the existence of a piece of information. He or she must have been given an opportunity to deal with that part of the information which the decision-maker proposed to take into account in arriving at a decision adverse to the interests of the person affected. In the present case, the use which the Tribunal made of the 1997 Naz report and which was not conveyed to SZFDJ or his solicitor was to erect a distinction between kothis and panthis and draw on some passages from the report as establishing that only persons in the former category of Bangladeshi homosexuals were at risk of persecution in the Convention sense. 44 Another argument advanced on behalf of the Minister in opposition to the notice of contention was that the information in the 1997 Naz report was not "credible, relevant and significant to the decision to be made" in the sense explained by the High Court in Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (supra) in the passage quoted at [28] above. It was said on behalf of the Minister that the assessment of credibility, relevance and significance is to be made at the time when, objectively, the decision-maker would notionally have assessed whether or not to dismiss the material from further consideration. We are unable to accept this contention. It is true that the High Court in VEAL made it clear that credibility, relevance and significance were not to be measured by reference to a statement by the decision-maker in reasons formulated after the making of the decision that he or she dismissed a particular piece of information from further consideration. However, the corollary does not follow. That is to say, if a decision-maker, in subsequently formulated reasons, indicates that a piece of information was accepted and assumed significance in arriving at the decision, it is not open to a reviewing court to disregard that information in deciding whether the person affected should have been given an opportunity, in accordance with Kioa v West, to deal with that piece of information. 45 The importance of the distinction between kothis and panthis which the Tribunal derived from the 1997 Naz report is underlined by the related argument advanced on behalf of SZFDJ that he was not afforded an opportunity to comment on the conclusion which the Tribunal ultimately reached that he was not a kothi. That distinction was apparently not adverted to in the course of the oral hearing before the Tribunal. As Counsel for the first respondent pointed out, his case had been solely based on membership of the social group, male homosexuals. The photographs to which the Tribunal referred in the passage quoted at [8] above were apparently adduced in support of that case and had been taken, we were informed from the Bar table, at a venue, the "Taxi Club" in Sydney, where the distinction between kothis and panthis, if drawn at all, is probably not as clearly defined as in Bangladesh. 46 It may be that the Tribunal's perception revealed by the passage quoted at [8] above that SZFDJ "does not identify himself as a kothi" was attributable to the fact that he had lived discreetly as a homosexual in Bangladesh to the extent that he had never revealed his sexual orientation to his parents; see pars 8 and 9 of the declaration reproduced at [3] above. At all events, the Tribunal's reasoning process made it essential, we consider, for the visa applicant to be afforded an opportunity to deal with whether he perceived himself as a kothi. There is also, in our view, much force in Mr Karp's contention that it was at least equally important for the Tribunal to have asked whether SZFDJ would be perceived by others as a kothi in Bangladesh and to have given him an opportunity to deal with that question. 47 The following particulars and "further particulars" have been supplied of the question which, it is alleged in ground 2 of the first respondent's notice of contention, the Tribunal failed to ask itself: '(a) whether the police and petty thugs would perceive the applicant as a "kothi" or a "panthi".

[76]

Conclusion 51 For the reasons explained at [43] above, we consider that the Tribunal failed to alert the first respondent and his adviser to the distinction which it perceived, on the basis of the 1997 Naz report, between kothis and panthis in Bangladesh. In our view, the information in the report directed to that distinction was "credible, relevant and significant", in the sense explained by the High Court in VEAL (supra), to the decision to be made by the Tribunal. Indeed, it could hardly be regarded as otherwise because the Tribunal put it at the forefront of its reasoning when it observed in the third paragraph of the passage quoted at [4] above that; 'one has to be careful in characterising the different groups involved in different ways in male-on-male sexual activity in Bangladesh. The different groups are clearly identified in the country information above.' 52 After recognising the existence of the difference so described, the Tribunal went on, later in the same passage, to say; 'It is clear that there is flourishing male-on-male sexual activity in Bangladesh and that the (mostly young) male prostitutes are on occasions abused by the police and gangs of thugs. Much of the reporting on the harsh treatment of male homosexuals in Bangladesh concerns these people. Much of the rest of the reporting concerns "kotis" - men who are overtly effeminate and have traditionally assumed the passive role in homosexual intercourse (although this appears to be changing). The country information submitted by the applicant amply documents this abuse. … … … Such evidence as there is regarding abuse of men who have sex with men largely refers to attacks on "kotis" and even this does not occur everywhere in Dhaka - for example, the Naz report quoted above refers to several sites as being pickup spots which are free of this type of harassment. The Naz report makes no mention of this [ie humiliation, threats and physical attacks] being a problem for any of their workshop participants.' 53 The unstated implication in those passages is, we consider, that only male prostitutes and the "overtly effeminate" kothis are subject to abuse by police or gangs of thugs in Bangladesh by reason of their membership of a particular social group. From that premise, the Tribunal concluded that there was not a real chance of the applicant's suffering persecution by reason of his membership of a particular social group if he were returned to Bangladesh. 54 In our view, the Tribunal's process of reasoning and its recourse, without reference to the visa applicant or his adviser, to material in the 1997 Naz report, amounted to a denial of natural justice in the sense identified by the majority of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57, where McHugh J observed, at 96 [140]; '140 A basic principle of the common law rules of natural justice is that a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his or her interests that the repository of the power proposes to take into account in deciding upon its exercise [Kioa v West (1985) 159 CLR 550 at 628, citing Kanda v Government of Malaya [1962] AC 322 at 337; Ridge v Baldwin [1964] AC 40 at 113-114; De Verteuil v Knaggs [1918] AC 557 at 560, 561]. This does not mean that all material which comes before the decision-maker must be disclosed but, "in the ordinary case … an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made." [Kioa v West (1985) 159 CLR 550 at 629.] Thus, the Federal Court has held that information of a non-personal nature relating to changed political circumstances that was decisive to the outcome of a refugee decision ought to have been put to the applicant [Lek v Minister for Immigration, Local Government and Ethnic Affairs (1993) 43 FCR 100 at 129; David v Minister for Immigration and Ethnic Affairs unreported, Federal Court of Australia, 12 October 1995 at 17 per Wilcox J]. Nothing in the Act, or in s 56 in particular, indicates a clear intention to exclude this principle of natural justice.'

[77]

55 The information which we regard as decisive to the outcome of the Tribunal's investigation in the present case was that kothis, by contrast with panthis, were significantly at risk of harassment and physical abuse by police or gangs of thugs in Bangladesh. That information was derived from the 1997 Naz report which had not been introduced into evidence by the visa applicant. Whether he or his legal adviser was aware of its contents or general import is not to the point. To adapt the language of Brennan J in Kioa v West (supra), SZFDJ was not given an opportunity to deal with the specific information about kothis and panthis which the Tribunal proposed to take into account. Nor was he given an opportunity to deal with the Tribunal's perception that he, the visa applicant, did not identify himself as a kothi and would not be so perceived by police or mastaans in Bangladesh. 56 In the light of the conclusion which we have just reached, it is unnecessary to consider whether the Tribunal's failure to accord procedural fairness was compounded, or contributed to, by its apparent disregard of the representation or assurance given to the visa applicant's solicitor, Mr Bitel. That, it will be recalled, was to the effect that, if the Tribunal discovered any more country information adverse to his case which it would take into account and which had not been canvassed in the oral hearing or the visa applicant's representations, the Tribunal would write to him about it. However, it is relevant to point out, in that context, that, in the present case, unlike that in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, the demonstration of a positive unfairness flowing from the accepted denial of natural justice does not require affirmative evidence that, but for the denial, the visa applicant would have taken, or refrained from taking, a particular course. Here, we consider, the inference is compelling that, had SZFDJ or his adviser been alerted to how the Tribunal proposed to use the distinction between kothis and panthis, they would have advanced reasons why he was likely, if returned to Bangladesh, to be identified as a kothi. Alternatively, they would probably have drawn on other parts of the evidence, including the testimony of the witness AAAA, in an endeavour to persuade the Tribunal that it was inappropriate to draw the distinction in assessing the risk to the visa applicant of persecution by reason of his membership of the wider social group of male homosexuals in Bangladesh. It is not necessary to conclude affirmatively that those endeavours on behalf of the visa applicant would inevitably have led the Tribunal to arrive at a different result; it is sufficient that "the denial of natural justice deprived [the prosecutor] of the possibility of a successful outcome" (emphasis added); see Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82 per Gaudron and Gummow JJ at 116 citing Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147. 57 The first respondent's success on one or more of the first three grounds raised by his notice of contention means that the orders of the learned Federal Magistrate setting aside the Tribunal's decision of 13 October 2004 and remitting the application to the Tribunal for reconsideration according to law must be affirmed. In these circumstances, it is unnecessary to consider whether, as the learned Federal Magistrate held, certain findings of fact by the Tribunal had been unsupported by evidence and whether the making of those findings amounted to jurisdictional error. In the result, therefore, the Minister's appeal must be dismissed with costs. I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court.

Minister for Immigration & Multicultural & Indigenous Affairs v SZFDJ

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