SZOXI v Minister for Immigration and Citizenship

EXTEMPORE REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court of Australia (Lloyd-Jones FM) dismissing an application for the issue of the constitutional writs in relation to a decision of the Refugee Review Tribunal (the 'Tribunal') made on 8 December 2010. In that decision, the Tribunal affirmed the decision of the delegate of the first respondent, which I will call "the Minister", refusing the appellant's application for a protection visa under the provisions of the Migration Act 1958 (Cth). 2 The appellant is a citizen of Nepal who arrived in Australia in accordance with a subclass 572 student visa issued to him. The appellant arrived in Australia on 14 January 2009. 3 On 12 April 2010 the appellant applied for a protection visa under the provisions of the Migration Act. That application was accompanied by a statutory declaration in which the appellant said these things. 4 He is a citizen of Nepal, born on 3 September 1979. His profession had been that of a teacher when he came to Australia. He says that he is a homosexual and he fears that if he returns to Nepal his homosexuality will be revealed to his family, relatives, friends and the Nepalese community and he would be expelled from his family and the society of those around him. 5 He says that there are no support groups or government agencies that assist homosexuals and he finds it difficult to live openly as a homosexual in Nepal. He experiences social pressures. He says he was employed as a primary school teacher and worked for nearly six years in that profession from May 2002 to July 2008. In July 2008 he was talking informally to a man during a break in classes at the school with the result that his homosexuality became revealed to the headmaster and his employment was terminated, he says, "on the spot". 6 He was told that he could return to that work if he were to marry a woman. He says that he was shocked and felt that his only option was to take his own life or leave Nepal. He says that he left his village after he was sacked from that role. He says that he fears harm and discrimination in Nepal on the basis of his homosexuality. He says that he would live in terror of being outed as a homosexual should he return to Nepal. He says that homosexuals are at "high risk" if identified as gay individuals in Nepal and he says that he would be easily identified as a target and would be particularly vulnerable to physical harm, harassment and discrimination if he were to return. 7 He says that at the time of his arrival in Australia he was scared that he might face deportation if he applied for a protection visa and thus he came to Australia in reliance upon a dependant student visa and also relied upon a false marriage certificate. He explains the need for the falsity of these things on the basis of his fear having regard to all of the things I have just mentioned. The appellant was interviewed by a delegate of the Minister on 30 August 2010 and the observations of the delegate are at AB 47 and more particularly at AB 50 and AB 51. 8 The observations of the delegate are of no particular moment for present purposes except that the delegate notes that the appellant provided no documentary support for the contentions reflected in the declaration I have just mentioned. 9 On 2 September 2010, the delegate refused the protection visa. 10 On 29 September 2010 the appellant applied to the Tribunal for a review of that decision and on 7 December 2010 the appellant attended an oral hearing before the Tribunal at which the appellant told the Tribunal and discussed with the Tribunal all of the concerns reflected in the declaration I have just mentioned. 11 The Tribunal's decision notes at AB 91 that the appellant appeared before it on 7 December 2010 and at [25] at AB 92, the Tribunal notes that the applicant as he then was, was interviewed by the delegate on 30 August 2010 and the Tribunal listened to a recording of that interview. 12 At [30] at AB 92, the Tribunal notes that the appellant attended the hearing alone (although assisted by an interpreter in the Nepali and English languages): [20]. The reasons of the Tribunal set out quite extensively the framework within which the Tribunal approached the assessment of the appellant's claims about the dislocation, ostracism and harm he would suffer should he return to Nepal having regard to his contentions about his homosexuality. 13 Having regard to the central challenge to the Tribunal's decision on the footing that it relied upon information which was, as the appellant contends this morning, politically motivated and 'impractical' in light of a 'true understanding of Hindu society in Nepal', it seems to me important to identify the way the Tribunal assessed the concerns and claims of the appellant. This is especially true, having regard to some of the findings the Tribunal ultimately made concerning those claims. At [33] of the Tribunal's reasons at AB 93, the Tribunal notes that it asked the appellant why he did not wish to return to Nepal and the appellant said that he has avoided harm because no one in Nepal realises that he is homosexual. He said that he comes from a small, remote, conservative village and he is expected in that society to observe a traditional lifestyle. 14 At [34] the Tribunal notes that the applicant said that he would be expelled by his family and society in Nepal if the true position emerged. The Tribunal then discussed with the appellant information the Tribunal had gathered from external sources relating to the treatment of homosexuals in Nepal. The Tribunal notes at [35] that the information available to it indicated that homosexuals in Nepal are not commonly mistreated by the society or the Nepalese authorities. 15 The Tribunal noted that since the decision of the Supreme Court of Nepal in 2008 in a case called (Sunil Baba Pant and Others v Nepal Government and Others (the 'Pant' decision)) by which the Court had effectively prohibited discrimination against homosexuals, conditions have been improving for gay men in Nepal. 16 The Tribunal noted at [36] that the 2008 Supreme Court decision has been described in a United Nations Development Program document as having provided a protective legal environment for Nepal's homosexual community, which is regarded as an exceptional development in South Asia. That observation comes from a document described as "Legal Environments, human rights and HIV responses among men who have sex with men …", the author of which is Mr John Godwin in 2010. 17 The Tribunal noted at [36] that following the Supreme Court decision a task force has drafted a new "civil code" and the Prime Minister has indicated that a civil code incorporating the findings of the Supreme Court in the Pant decision, will be implemented. That observation comes from the Civil Code Draft Proposal submitted to the Prime Minister referred to in an FN News Network website on 11 August 2010. The Tribunal also noted at [37] that the provision for same sex marriage is expected to be included in the new Constitution in Nepal and that observation comes from an article in the Kathmandu Post on 2 April 2010 by Kamal Raj Sigdel. The Tribunal also noted at [37] that a member of the constitutional assembly, working on the new constitution, which was expected by about this time this year, April/May or so, stated that he expects the new constitution to include the right for any "person" to marry any other "person", and that observation comes from the a bulletin entitled 'Constitution Building e-bulletin, Volume 1, No 4', published by the Centre for Constitutional Dialogue. 18 The Tribunal referred to a prominent homosexual activist in Nepal, Sunil Baba Pant, who established the "Blue Diamond Society". That society was established in 2001. The Tribunal noted that Mr Pant was elected to Parliament as an openly gay man. The Tribunal noted at [38] that the appellant told the Tribunal that he had not heard of Mr Pant or that society. The Tribunal then sets out at [38] some aspects of the work of that society. The Tribunal noted at [38] that Mr Pant has an international reputation due to his work relating to the treatment of sexual minorities and he has addressed the United Nations General Assembly and represents Nepal in the Asia-Pacific Coalition on Male Sexual Health. That observation was drawn from an entry on Mr Pant's website under the title "Gays Without Borders", 19 December 2008. 19 The Tribunal notes, at [39], that the 2008 Supreme Court decision decriminalised homosexuality when it decided that Article 16 of the Criminal Code, which refers to an 'unnatural sex act', does not apply to sex between males or sex between transgender people. That observation is drawn from an Amnesty International website from 2008. The Tribunal, at [40], at AB 94, makes further observations about the role of the Blue Diamond Society and Mr Pant's activities. At [43], the Tribunal notes that five homosexual men stood for the national elections in 2008. It observes that Mr Pant was the "first openly gay person elected to the Nepali constituent assembly in 2008". That observation is drawn from an article in The Times of India of 1 May 2009 entitled 'Nepal gets its first gay representative in Parliament'. 20 At [46], the Tribunal notes that community acceptance of sexual minorities is indicated by the openness and spread of services for homosexual men. The Blue Diamond Society offers services in 16 districts throughout southern and central Nepal. The Tribunal notes at [46] that the Blue Diamond Society employs 500 full time and part time staff, 390 of whom are gay men or transgender persons and that observation is drawn from a publication of APCOM of 2008 fully identified at f 18 at AB 95. At [48], the Tribunal notes that a 2010 Human Rights Watch report says that since the Supreme Court decision of 2008 there has been one instance of arbitrary detention when police raided a gay party in Kathmandu in June 2009 and detained participants for 12 hours without charge, before then releasing them. That observation is drawn from a document entitled 'World Report 2010 - Nepal', 20 January, Human Rights Watch 2010, accessed on 11 November 2010. 21 At [49], the Tribunal notes that despite the difficulties which gay men face in Nepal, the information referred to at [35] to [48] did not suggest to it that gay men were commonly subjected to circumstances amounting to persecution by their families, society, the authorities or the Government. At [50], the Tribunal notes that the applicant said that he came from a small traditional village and the community did not tolerate homosexuality. At [51], the Tribunal notes that it has some doubts about the appellant's contentions of his homosexuality, but those matters would be dealt with in the reasons. 22 As to the reasons, the Tribunal reached a sequence of findings that need to be identified and they are these. 23 First at [57], the Tribunal observed that it had some doubts about whether the appellant is a homosexual, as he claimed. Nevertheless, despite those concerns, the Tribunal elected to give the appellant the benefit of the doubt and accepted the appellant's claim that he is homosexual. 24 Secondly at [59] at AB 98, the Tribunal notes that a well-founded fear of persecution for a Convention reason concerns the state of mind of the appellant. The Tribunal at [59] accepts that the appellant is afraid to return to Nepal for the reasons he gave. 25 The Tribunal then goes on to consider whether those fears, accepted as they were articulated, constitute a well-founded fear of persecution for a Convention reason. 26 Thirdly, at [61], at AB 98, the Tribunal accepts that the appellant may be ostracised by his family and relatives. The Tribunal finds at [61], however, that this treatment will not amount to harm of such a nature or extent as to constitute "persecution". 27 Fourthly, at [62], the Tribunal accepts that negative and conservative attitudes may persist in the appellant's village and within his family. However, the Tribunal finds at [62] that the social ostracism which the applicant may face from his family and people in his village will not amount to harm of such a nature or extent as to constitute "persecution" for Convention purposes. 28 Fifthly, at [63] the Tribunal accepts the appellant's claim that his remote village is not a suitable environment for a gay man to express his sexuality and the Tribunal observes that it has formed the view that the appellant may have to move to an urban environment within Nepal, if he wishes to express his sexuality in Nepal. The Tribunal finds that it is satisfied that by so relocating the appellant could avoid the conservative attitudes evident in his remote village. The Tribunal further found, at [63], that it is satisfied that the appellant has the resources, ability and opportunity to move or relocate within Nepal, as he had done previously, and thus he is in a position to express the opportunity to transfer and mitigate the concerns he holds which would otherwise arise within a remote village. 29 Sixthly, at [64] the Tribunal finds that the appellant's concern that he would be subjected to serious harm is not well-founded. The Tribunal finds at [64] that, despite continuing difficulties faced by gay men in Nepal, compounded by negative community attitudes regarding homosexuality, gay men are nevertheless not commonly subjected to discrimination or other forms of harm which amount to persecution for Convention purposes. At [65] the Tribunal observes that it has considered the appellant's claim that he was suspended from work by his former employer and that the issue was taken into account in deliberations. Nevertheless, the Tribunal finds that it is not satisfied that this circumstance constitutes persecution for a Convention purpose and the Tribunal at [65] finds that the applicant would not be prevented, by reason of his homosexuality, in a forward looking way in the reasonable future, from obtaining employment or supporting himself in Nepal. 30 The Tribunal expressed sympathy at [66] with the appellant's position but was not satisfied that the appellant held a well-founded fear of persecution for the Convention reason advanced. 31 All of those matters require some attention because they bring into play two factors. First, they represent the findings of fact made based upon the matrix of fact before the Tribunal and, secondly, they reflect the forensic or analytical treatment of the information that the Tribunal had before it from the sources it had and those sources are now called into question in the proceedings as a proper basis for the Tribunal's reasoning and more particularly, its findings of fact. The appellant contends that the decision is wrong, unjust and unfair and not made according to law, and those matters were the subject of the grounds of challenge in the application for the issue of the constitutional writs before the Federal Magistrates Court of Australia. 32 The grounds advanced before the Federal Magistrates Court were these. 33 First, the appellant contended that the Tribunal's decision engaged error of law because it is "so unreasonable or so inadequate" that the only inference open is that the Tribunal failed to discharge the statutory review function. As a part of that contention, the appellant argued that the country information concerning homosexuals relied upon by the Tribunal is "not true" and the changes described are "not yet implemented". 34 The second ground advanced before the Federal Magistrates Court contended that the Tribunal fell into jurisdictional error on the footing that there was "no evidence" to support the factual findings made by the Tribunal and that the findings were "irrational or illogical" in the context of the appellant's particular circumstances. 35 As a part of that ground, the appellant contended that the Tribunal did not consider the nature of Nepalese society and its circumstances as a "failed state". The appellant contended that it was not correct to find, as the Tribunal had found, that he could avoid harm in the way suggested. The appellant also contended, as a part of that ground, that the decision of the Tribunal reflected little analysis and constituted an "extremely truncated analysis" which was "inadequate and wrong". 36 The third ground before the Federal Magistrates Court was that the decision of the Tribunal was "unreasonable" and that the Tribunal had applied the "wrong test" or alternatively the Tribunal was "not really satisfied in respect of the correct test". I take the final observation to mean that the Tribunal failed to apply the correct test when determining whether, on the facts, it could be satisfied that the appellant held a well-founded fear of persecution for the Convention reason advanced. 37 The appellant's obligation, of course, is to demonstrate error on the part of the Federal Magistrates Court but, as I mentioned earlier, I will proceed on the footing that what is really contended is that the Federal Magistrates Court fell into error by failing to find jurisdictional error in the decision of the Tribunal. In dealing with the contentions of jurisdictional error on the part of the Tribunal, the Federal Magistrate made these observations. 38 Lloyd-Jones FM considered that the appellant's complaint was that the country information relied upon by the Tribunal member was inappropriate or inaccurate or both and that the appellant's documentation put before the Tribunal was, in effect, more persuasive than the unreliable information relied upon by the Tribunal. 39 The grounds of appeal before the Federal Magistrates Court were described by Lloyd-Jones FM at [16] as essentially reflecting, in a reductionist way, the proposition that the Tribunal's findings, in connection with the independent country information, were unreasonable and irrational and that the independent country information was inadequate and wrong and ought not to have been relied upon. 40 It seems to me that that is not an unfair characterisation of the effect of the grounds of appeal relied upon before the Federal Magistrate. Lloyd-Jones FM noted at [17] that the appellant had provided the Tribunal at the hearing on 7 December 2010 with seven articles which had been downloaded from the Internet. The Federal Magistrate noted that the majority of those articles bore dates in 2007, although one article was from December 2010. 41 The Federal Magistrate observed at [17] that without undertaking a survey of the material relied upon by the Tribunal it was a fair assessment to say that, generally, the material selected by the Tribunal was significantly more up to date than the independent country information provided by the appellant. For that reason, I have spent some time looking and reviewing in these observations a number of the principal documents relied upon by the Tribunal going to the heart of the question of responses within Nepalese society and the legal and cultural circumstances concerning the treatment of homosexuals within that society. In the course of the Federal Magistrate's reasons there is an examination of some of the matters that I have already mentioned. 42 The fundamental matter which arises out of all of this material is whether or not it was open to the Tribunal to reach a decision on the facts, having regard to the information it had surveyed, analysed and used in the evaluation of the factual claims of the appellant. That question, in a real sense, answers itself because it is plain on the authorities that it is open to the Tribunal to have regard to such information as it did. It is open to the Tribunal to give it such weight as it did and it is open to the Tribunal to rely upon it in reaching a decision on the questions in issue. 43 If there is any doubt about that, the doubt can be removed by referring to these authorities: NBKT v Minister for Immigration and Multicultural Affairs & Anor [2006] FCAFC 195, otherwise reported at (2006) 156 FCR 419, in which the observations of Young J at [81] were agreed with by Gyles and Stone JJ. Other authorities are mentioned at [20] of the reasons of the Federal Magistrate and I will not repeat them in these reasons. In particular, the Federal Magistrate relied upon a decision of the Full Court of this Court in NAHI v Minister of Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 10 in which their Honours, Gray, Tamberlin and Lander JJ made observations at [11] to [13] about the entitlement of the Tribunal to rely upon country information in the way in which I have described. 44 Of course, if the country information is entirely irrelevant to the question in issue that would be a different matter. However, there can be no suggestion that the country information relied upon by the Tribunal in its analytical discussion of that material is irrelevant. It is relevant and it was properly taken into account in determining, in a forward looking way, whether the Tribunal could be satisfied under the Migration Act that the appellant held a well-founded fear of persecution for the Convention reason advanced. 45 The second fundamental matter is that the attack upon the Tribunal's decision reflected in the grounds before the Federal Magistrate and reflected in the grounds advanced today (and certainly within the grounds of appeal identified in the Notice of Appeal at grounds 1, 2 and 3), is that the decision of the Tribunal was "illogical or irrational". 46 In relation to that matter, it should be noted that the contention that the decision of the Tribunal is grounded in illogicality or irrationality so as to give rise to jurisdictional error, necessarily means that the decision is one which no decision-maker acting rationally or logically could reach on the evidence. That is why the contention of illogicality and irrationality is described as an analogue of the notion that the decision is said to be 'clearly unjust' or 'arbitrary' or 'capricious' or 'unreasonable' or 'perverse' and of course, the Court should be cautious in concluding that a decision of the Tribunal is illogical or irrational in that sense, although not reluctant to do so if the decision is illogical or irrational in the sense described. 47 The question then is whether no decision-maker acting rationally or logically could reach the decision reached by the Tribunal on the evidence. Notwithstanding the submissions of the appellant which are directed to a challenge to the factual findings on the claims, the question answers itself. It was open to the Tribunal to reach the decision it reached in reliance upon the information it used and the decision is not illogical or irrational as contended. This morning, the appellant was assisted by an interpreter and the appellant was invited to tell the court whatever the appellant might wish to put before the court in support of the grounds. Fundamentally, the appellant contended that he did not agree with the decision. 48 He said that the decision was not a 'lawful decision'. He said that the information relied upon by the Tribunal was 'politically motivated' and not 'practical', having regard to Nepalese society and Hindu cultural traditions. He said that it is difficult for him to live openly in Nepalese Hindu society. He said that the degree of disapproval by that society of his conduct would be profound. He says that the society continues to criminalise this conduct and that it is and would be difficult to live a life as a homosexual in that society. He says that for these reasons, the failure to recognise the dynamics of these factual circumstances renders the decision by the Tribunal 'unfair', and he calls upon this court to intervene to do justice between the parties by affording him relief in the form of the issue of the constitutional writs to set aside the decision and send the matter back to the Tribunal to discharge the statutory review function. 49 The central answer to that matter is that each of those criticisms go to factual matters within the jurisdiction of the Tribunal, not matters outside its jurisdiction. The Tribunal did not fall into error in reaching the conclusions it reached, although the appellant may and does disagree with those factual conclusions. Nevertheless, the question of doing justice involves acceptance of decision-making according to law and unless and until the appellant is able to demonstrate that the Tribunal fell into jurisdictional error, then the correct legal result is that the Tribunal on the contentions advanced in this case, did not engage in jurisdictional error and the appeal must be dismissed. 50 Accordingly, the appeal is dismissed with an order that the appellant pay the costs of and incidental to the appeal. I certify that the preceding 50 (fifty) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood.