SZHZZ v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court (SZHZZ v Minister for Immigration and Citizenship [2007] FMCA 1052) dismissing an application for judicial review of a decision of the second respondent, the Refugee Review Tribunal (the Tribunal), not to grant the appellant a protection visa pursuant to s 36(2) of the Migration Act 1958 (Cth) (the Act). 2 The appellant, a citizen of the Philippines, arrived in Australia on 21 April 2005 and lodged an application for a protection visa on 18 May 2005 of that year. He claimed to have a well-founded fear of persecution in the Philippines by reason of his being a homosexual Muslim male in the Philippines. His application was refused by the Minister on 16 August 2005. The Tribunal affirmed that decision on 6 December 2005. 3 The appellant outlined the basis for his claim to protection in writing on three occasions prior to the hearing before the Tribunal. His fundamental claim was that as a male Muslim homosexual he would be in an impossible position if he returned to the Philippines. His case was summed up in these words: Muslim and gay. Two words that can not or must not or shall not or will not go together. Gay is a taboo in muslim society. 4 He claimed to maintain his Muslim faith. He came from a large and powerful Muslim family from Mindanao and was a member of a particular tribe that adhered to the Muslim faith. His family was active in politics and he described his father as having been a warlord. He was the only homosexual in his family and was ostracised by his siblings for this reason. The situation was aggravated by the existence of Muslim radicals and terrorists, in particular the Moro Islamic Liberation Front (MILF). He claimed to suffer emotional and mental anguish. He claimed that his family would not protect him from harm and that: the law of my country do not shield me in such familial and religious pressure. He referred to threats he had received after he refused to join the MILF. He feared connivance between his family and the MILF. He referred to an occasion in 2005 when three Muslim men with faces covered by handkerchiefs cut his long hair with scissors and threatened that next time they would cut his belly. 5 His evidence to the Tribunal fleshed out his position. He said that in the 2005 incident the men said that if he kept on "doing this" they would cut his belly - he took them to mean being a homosexual. He did not report the incident to the police because they would "laugh, because I'm gay". The Tribunal recorded the following: He also stated that, as well as the local Muslim language, he spoke the non-Muslim languages of Tagalog and Bisayan, so people could not tell he was Muslim. His homosexual friends were all Christians. He did not reveal to people that he was from the [named] family or was Muslim, so that they would not tell his family anything about him. 6 He had lived for about a year in Manila around 2000. 7 The Tribunal accepted he had experienced the following: · His family tried to dissuade him from being homosexual by withholding family allowances and ostracising him (continuous). · His family teased, mocked and gave him "constant annoyance" (continuous). · His brother made him cut his long hair by threatening to cut off his allowance (1996). · His family tried to force him to marry a woman and when he refused they cut off his allowance (1998). · The MILF invited him to join them and threatened him when he refused leading to him resigning from his job and losing his college accommodation (1998). · While walking home he was stopped by three Muslim men whose faces were covered by handkerchiefs. They cut off his pony tails and said that if he kept on "doing this", by which he understood them to mean "being gay", they would "cut [his] belly" (2005). 8 The Tribunal was not satisfied that the family's treatment of the appellant amounted to persecution. As the appellant had had no further problems with the members of the MILF since 1998 (more than six years before claiming asylum), the Tribunal was satisfied that they had "lost interest in him". The Tribunal found that the 2005 assault was an isolated event and it was unable to establish whether it occurred for a Convention reason. It also found, based on independent information about homosexuals in the Philippines, that the appellant could reasonably be expected to relocate within the Philippines. For these reasons, the Tribunal found that the appellant did not have a well-founded fear of Convention-related persecution. 9 On his application for review in the Federal Magistrates Court, the appellant raised the following grounds: 1. The Tribunal is satisfied that the MILF lost interest of me because they don't cause me problems some six years ago. And the tribunal further mentioned that the fact that I had no further contact with those three men who cut my hair during my final three months in the town suggests that it was an isolated event which will not be repeated even if I return to my town. 2. The tribunal accepted I do not have a good relationship with my brothers. But the tribunal is not satisfied I suffered any serious harm as a result. 3. The Tribunal accepted that I am a homosexual, but the tribunal never further mentioned or accepted in the findings and reasons (page 11) that homosexuals are a taboo in a muslim society. 10 The appellant did not allege any other ground of review at the hearing, but reiterated that he was afraid of going back to the Philippines because of what his brothers might do to him. Raphael FM found that there was no error of law or jurisdictional error in the Tribunal's decision as to the claimed persecution and pointed out that, in any event, the Tribunal's finding on relocation was an answer to the appellant's case. 11 The appellant raises three grounds of appeal from that decision as follows: 1. The Honorable Court did not consider that the Refugee Review tribunal wrongly did not accept my claim for protection as homosexual and the Tribunal also wrongly decided that my claim for homosexual is not convention related. But the Tribunal did not consider that my hair was cut by the group because of my homosexuality. 2. The Honorable Court did not consider that the Tribunal did not comply with the Migration Act 1958 when it made its observation regarding relocation for me as a homosexual person because the applicant did not get any opportunity to explain regarding this issue. 3. The Honorable Court also did not consider that the Tribunal did not assessed my claim for protection properly. 12 The first ground appears to raise a similar point to ground 1 before the Federal Magistrates Court. The written submission of the appellant is, in effect, a restatement of the appellant's case and does not descend to particularity. The finding by the Tribunal as to the incident in 2005 was a finding of fact open to it on the material before it. Homosexuality was only one possible explanation for the episode. However, this point is subject to the issue discussed under ground 3. 13 The second ground does not appear to have been raised by the appellant in the Federal Magistrates Court. The appellant's written submission also seeks to raise a related new s 424A point. Each argument depends upon the conduct of the matter before the Tribunal. Those arguments involve factual matters not appropriate to be raised on appeal to this Court. However, the point has relevance to the later argument concerning relocation. 14 The third ground is general. The written submissions of the appellant in relation to it raise a similar point to the third ground in the Federal Magistrates Court - that the Tribunal failed to consider the special position of a male Muslim homosexual in the Philippines. That point was reiterated by the appellant in his oral submissions. It is pointed out that none of the country information identified by the Tribunal referred to that issue. The issue was not expressly dealt with by the Federal Magistrate. 15 The gravamen of the appellant's claim for protection was his special position as a male Muslim homosexual in the Philippines. The Tribunal accepted that he was a male Muslim homosexual. However, it did not expressly refer to the consequences of that. Furthermore, the appellant is correct in submitting that none of the country information identified by the Tribunal referred to that circumstance. The Tribunal did not have to expressly deal with every matter raised by the appellant. However, it was obliged to deal with a discrete basis for protection put forward by him (Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, (2003) 77 ALJR 1088 at [24], [95]; Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42]). Put another way, the Tribunal did not identify the correct social group. Considering the greater class does not necessarily deal with the lesser (SZBJH v Minister for Immigration and Citizenship [2008] FCA 501 at [35]-[42]). The appellant's contention was, and is, that a male Muslim homosexual was in a different, and more vulnerable, position than other male homosexuals in the Philippines. That contention was not considered. 16 The manner in which the Tribunal dealt with the particular instances of persecution claimed by the appellant may well have been influenced by its failure to focus upon the true nature of the appellant's claim and by its view about the position of homosexuals generally in the Philippines. 17 It is submitted for the respondent Minister that the findings by the Tribunal are inconsistent with the appellant fearing persecution as required by s 91R of the Act. It is submitted that neither serious harm nor systematic and discriminatory persecution was or could be established, referring to VBAO v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 231 ALR 544; (2006) 81 ALJR 475. 18 It is not clear that this point was raised before the Federal Magistrates Court, and is not raised by notice of contention. In any event, the point is not decisive. In my opinion, if the appellant's case is taken at its highest, s 91R could possibly be met. He paints a serious picture as to the plight of a Muslim homosexual male suffering from crushing oppression, including psychological harm, physical harm and the threat of physical harm, with no effective State protection. I am not satisfied the Tribunal squarely dealt with that case. As I have said, the manner in which it dealt with particular incidents may have been coloured by the failure to focus upon the essence of the appellant's claim. Whilst the appellant may well have difficulty in persuading a properly directed Tribunal that the requirements of s 91R are met, I cannot rule out that possibility. 19 It is also submitted by the Minister that the Federal Magistrate was correct in holding that the relocation finding by the Tribunal was decisive. The difficulty with that argument is that the Tribunal did not concentrate upon the position of a Muslim male homosexual from his family and his tribe in Manila or elsewhere other than Mindanao. He said in one of his communications to the Tribunal: I cannot think of any place that is safe. 20 The appellant apparently did not refer to any particular difficulties in living in Manila. However, the Tribunal does not report asking him about that topic or about the practicality of relocation or his fear of persecution if relocated. As far as the reasons for decision go, the Tribunal had no information from the appellant on those points. It is to be noted that the appellant said that he, in effect, disguised that he was Muslim (cf Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473). It does not follow that there would not be persecution of Muslim male homosexuals in Manila simply because it is not predominantly a Muslim city. Again, it may well be that a properly directed Tribunal will find that relocation is an answer to the claim. I am not satisfied that such a finding is inevitable. 21 The appeal will be allowed; the orders of the Federal Magistrates Court will be set aside; and, in lieu thereof, it will be ordered that the decision of the Tribunal be set aside and the matter remitted to the Tribunal for further decision according to law. The respondent Minister will pay the costs (if any) of the appellant of this appeal and of the Federal Magistrates Court proceeding. I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gyles.