SZAFD v Minister for Immigration and Multicultural and Indigenous Affairs

REASONS FOR EX TEMPORE JUDGMENT WILCOX J 1 This is an appeal against a decision of Federal Magistrate Raphael in relation to an application to review a decision of the Refugee Review Tribunal ('the Tribunal'). On 7 July 2003, the Tribunal rejected a claim by the appellant that he had a well-founded fear of persecution if he returned to his native Bangladesh because of the fact that he was a homosexual. The Tribunal did accept that the appellant was a homosexual, but did not accept most of the evidence given by the appellant as to his alleged treatment by his family and community. 2 The Tribunal member indicated in his reasons for decision that he was not satisfied that the appellant was a reliable witness. The member went on: 'I am prepared to accept that he is homosexual. I have carefully considered his oral and written evidence and the independent evidence about homosexuality in Bangladesh. I accept the applicant's claim that his family and the community deeply disapprove of homosexuality but I do not accept his claim that he will be prosecuted or killed because of it. I do not accept his claims about violence and threats from local people. I am satisfied he fabricated the claims about threats and actual violence by his neighbours and about the notice from the Court and about the forced closure of his business. I accept the independent evidence that no one has been prosecuted for homosexuality in Bangladesh and that homosexuality has a low profile in the community and that sexual matters are not discussed. I accept there would be pressure upon the applicant to adopt a conventional married life but I am not satisfied the opprobrium of family and neighbours amounts to persecution under the Convention. In all the circumstances, I am not satisfied the applicant has a well-founded fear of persecution for reasons of homosexuality.' 3 Federal Magistrate Raphael was unable to identify any jurisdictional error in the Tribunal's decision. He was aware that the appellant was dissatisfied with the conclusions of the Tribunal that I have just quoted. The appellant has also made that clear to me today. I understand that the appellant feels that he is in danger of persecution on account of his homosexuality if he returns to Bangladesh. However, as I pointed out to the appellant, both the Magistrate and I are bound by the Tribunal's findings of fact. It is not open to a court conducting judicial review of a tribunal decision to substitute its own views about the facts of the case. 4 The appellant filed a submission dated 12 December 2003. I have discussed that submission with him today. The first paragraph of the submission raises a question of law that is within the jurisdiction of this Court. This paragraph alleges that the Tribunal failed to exercise its jurisdiction because it failed to identify or ask the material and fundamental question whether the homosexual and gay community are persecuted in Bangladesh. If the Tribunal had failed to identify and resolve that question, I would agree that it would have fallen into a jurisdictional error. However, it seems to me that the allegation that the Tribunal failed to identify and resolve this question is incorrect. 5 In the Tribunal's reasons for decision, there is a section headed 'Independent Evidence', commencing at page 8. That section of the reasons refers to information obtained by the Tribunal member about homosexuality in Bangladesh. The section refers to a publication called the 'Spartacus International Gay Guide 95/96 24th edition'. It refers to article 377 of the Bangladesh criminal code dealing with 'sexual intercourse that is against the laws of nature'. The section also refers to information obtained from the Australian Department of Foreign Affairs and Trade in 1995 and 1998 and from the United States Bureau of Democracy, Human Rights and Labor. 6 I appreciate that the appellant does not agree with some of the information that is referred to in this section of the Tribunal's reasons. However, these are matters of fact. The important point, in considering whether there was jurisdictional error, is that the Tribunal did address this question and go to material relevant for resolving it. I do not think it can fairly be said that the Tribunal failed to ask itself what the appellant rightly refers to as the material and fundamental question as to the manner in which homosexuals are treated in Bangladesh. 7 The submission then goes on to refer to the recent decision of the High Court of Australia in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; Appellant S [2003] HCA 71 ('Appellant S395/2002'). In that case, the High Court by majority set aside a decision of the Tribunal involving two homosexuals from Bangladesh. However, the reason for taking this course was that, in the view of the majority, the Tribunal had resolved the issue of potential persecution by reference to an anticipation that the appellants would be discreet about their relationship if they returned to Bangladesh. In the joint reasons of McHugh and Kirby JJ, their Honours noted at para 35 that the Tribunal 'did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly'. The other majority judgment, that of Gummow and Hayne JJ, followed similar reasoning. 8 It seems to me there is no counterpart of that issue in the present case. I have already referred to the Tribunal's conclusions of fact. The Tribunal simply did not accept that the appellant had faced prosecution in the past because of his homosexuality. I emphasise that I express no opinion as to whether this was a correct factual assessment of the situation. However, it does mean that the problem that arose in Appellant S395/2002 does not arise in the present case. Although I can understand that the appellant has taken heart from the High Court's recent decision, I do not think it is of any assistance to him. 9 The remaining points that are made in the written submission all concern factual issues. Like Federal Magistrate Raphael, I have carefully considered the reasons for decision of the Tribunal and, like him, I am unable to discern any jurisdictional error. I am also unable to find any error in the Magistrate's reasons for judgment. I have no choice but to dismiss the appeal. I propose to take that course. 10 [There was discussion about costs.] 11 The appeal is dismissed with costs. I assess the costs to be paid by the appellant at $2500.00.