A Manifestly Unreasonable Decision?
18 The Grounds of Appeal have been drafted in a manner which gives rise to considerable uncertainty. They mirror the Grounds of Appeal which were before the Court in the Appellant husband's case: [2012] FCA 122 at [10], 125 ALD 224 at 226.
19 Contrary to the terms of the first Ground of Appeal, the reasons for decision of the Tribunal reveal that the Tribunal did consider the Appellant's claims. The Tribunal did not "ignore[e] the aspect of persecution and harm in terms of Sec 91R of the Act". Indeed, the Tribunal accepted that the Appellant's "past treatment" amounted to "serious harm for the purposes of" s 91R(1)(b) of the Migration Act.
20 The reference in the second Ground of Appeal to "reasonable satisfaction" is presumably a reference to the requirement in s 36 of the Migration Act for the delegate or the Tribunal to be "satisfied" that the person claiming refugee status is a person to whom Australia owes protection obligations. As with the comparable Ground in the husband's case, it is "unparticularised and vague". In the husband's case it was said to be "difficult to know exactly what the appellant means by it": [2012] FCA 122 at [23], 125 ALD 224 at 229.
21 The Grounds of Appeal, it is respectfully considered, can be construed most favourably to the Appellant as a reference to the Tribunal having erred in concluding that "it would be reasonable and practicable for the [Appellant] to safely relocate to a different part of India".
22 "What is 'reasonable', in the sense of 'practicable', must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality": SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [24], 233 CLR 18 at 27 per Gummow, Hayne and Crennan JJ. See also: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [8] per Flick and Jagot JJ; MZYNA v Minister for Immigration and Citizenship [2012] FCA 159 at [38] per Gordon J; SZQEN v Minister for Immigration and Citizenship [2012] FCA 387 at [29] to [35] per Yates J. "[I]t may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution": SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 at [14], 233 CLR 51 at 55 per Gummow, Hayne and Crennan JJ.
23 In resolving the Appellant husband's case, Collier J made reference to the decision in SZATV and to the following observations of Gummow, Hayne and Crennan JJ:
[32] The effect of the Tribunal's stance was that the appellant was expected to move elsewhere in Ukraine, and live "discreetly" so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his "relocation" in Ukraine. It presents an error of law, going to an essential task of the tribunal. This was determination of whether the appellant's fear of persecution was "well-founded" in the Convention sense and thus for the purposes of s 36(2) of the Act.
In applying that decision, her Honour said in respect to the Appellant husband's claim that "… the tribunal has, like in SZATV, sidestepped proper consideration of the ability of the appellant to relocate in India". That was concluded to be an error going to jurisdiction: [2012] FCA 122 at [21], 125 ALD 224 at 229.
24 Whatever may have been the result in the husband's case, the Appellant's appeal to this Court must be resolved by reference to the findings and reasons for decision of the Tribunal in respect to her own claim and, more specifically, the reasons for decision of the Federal Magistrate.
25 Four particular aspects of the Tribunal's reasons in respect to the present Appellant, it is respectfully concluded, expose the fact that it "sidestepped" a proper consideration of the reasonableness of her relocating within India. Those four aspects are the following:
the failure by the Tribunal to make a definitive finding as to whether the Appellant was a lesbian - the course adopted by the Tribunal was to explicitly "not make a finding" in this regard (at para [103]);
the Tribunal's finding that the Appellant will continue to live with her husband and that her reasons for doing so "… include a desire to convey the impression locally and more widely that the parties live together in a marriage relationship" (at para [112]);
the finding that the Appellant "… will not seek to engage in same sex relationships in the future …" (at para [114]); and
the finding that "the essential and significant reason for" the Appellant's conduct was "not attributable to any Convention ground" (at para [114]).
Unlike the reasons provided by the delegate, the Tribunal did not seek to express any reservations about the Appellant's claims and did not seek to characterise them (for example) as "implausible". Perhaps the failure to make a finding regarding the Appellant's sexuality reflects some doubt on the Tribunal's part as to that claim; perhaps it is no more than the Tribunal believing that it was unnecessary to resolve the claim given its other findings of fact and the ultimate conclusion reached. But the reason why the Tribunal did not make a finding is left unstated.
26 In order for the Tribunal to address - rather than "sidestep" - the claims being made, an essential starting point was for it to consider at the outset whether the Appellant was in fact a lesbian. It may have been possible for the Tribunal to consider that claim and leave it unresolved. But to leave the claim unresolved would require it to explain why it concluded that she would not "seek to engage in same sex relationships" and outline the reasons for her conduct. In simply finding that she would "not seek to engage" in such relationships, the Tribunal failed to properly consider and resolve her claim. The Tribunal stated what it found to be the "the essential and significant reason" for the Appellant's conduct; but it disturbingly left unstated whether there were also other "less essential" and "less significant" reasons for her conduct and - if so - what those other reasons may have been. Even a "less essential" or "less significant" reason may be sufficient to render relocation not "reasonable" in the Appellant's circumstances. Whatever other "reasons" the Appellant may have had for her conduct were not taken into account when considering the "reasonableness" of her relocation. The Tribunal similarly identified one of the reasons why the Appellant would continue living with her husband but left unstated her other reasons for doing so.
27 The jurisdictional error in the present proceeding is that the Tribunal failed to resolve the claim made by the Appellant and its failure to consider that claim went to the "reasonableness" of her ability to relocate. Considerable care should be taken before endorsing an approach whereby the Tribunal can "sidestep" consideration of the reasons why a person may chose to pursue one course of conduct rather another and choose to not fully and openly practice (for example) a religious belief or one's sexuality. To fail to consider those reasons may make a "mockery" of protected rights. See: Kendall, 'Lesbian and Gay Refugees in Australia: Now that 'Acting Discreetly' is no Longer an Option, will Equality be Forthcoming?' (2003) 15 International Journal of Refugee Law 715. Reliance by the Respondent Minister upon the decision in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, 216 ALR 1, it is respectfully concluded, is misplaced. Reliance was placed, in particular, upon the following observations of Hayne and Heydon JJ:
[168] At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask … whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.
28 NABD, however, was a case which invited consideration as to what the Tribunal characterised as "conspicuous", "aggressive" or "active" proselytising as opposed to a "quiet sharing of faith". A requirement to proselytise was said not to be a core component of religious faith. The appellant in that case, it was held, could practise his faith - albeit not in a "conspicuous" manner - and not fear persecution. In the present proceeding the ability or freedom of the Appellant to practice her sexuality was not addressed. The appellant in NABD may have been able to practice his religious faith, but the ability or freedom of the present Appellant to practise her sexuality was not addressed. The distinction in NABD between "'converts to Christianity who go about their devotions quietly and maintain a low profile [who] are generally not disturbed' and persons involved in the 'aggressive outreach through proselytising by adherents of some more fundamental faiths'", was accepted by Gleeson CJ as being "far from clear-cut": [2005] HCA 29 at [9], 216 ALR 1 at 4. The difficulty in the present proceeding was simply that the Tribunal failed to even embark upon the process of resolving whether the Appellant could "go about" practising her sexuality.
29 As explained by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, 216 CLR 473:
[80] If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be "discreet" about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant's fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.
[81] It is important to recognise the breadth of the assertion that is made when, as in the present case, those seeking protection allege fear of persecution for reasons of membership of a social group identified in terms of sexual identity (here, homosexual men in Bangladesh). Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense "discreetly") may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality.
[82] Saying that an applicant for protection would live "discreetly" in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker "expects" that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is "expected" to live discreetly is both wrong and irrelevant to the task to be undertaken by the tribunal if it is intended as a statement of what the applicant must do. The tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.
In failing to resolve the Appellant's claim being advanced for consideration, namely her claims founded upon her asserted lesbian status, the Tribunal committed jurisdictional error.
30 Whether the Refugee Review Tribunal has in any particular case "sidestepped" a proper consideration of a claim being made will obviously depend upon the facts and circumstances of any individual case. Much may depend upon the particular facts and evidence advanced for consideration and whether findings of credibility in respect to that evidence are appropriate or warranted. Much may depend upon the extent to which the Tribunal pursues the factual basis upon which a claim is made during an interview with a claimant. See: Kneebone, 'The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?' 5 AJ Admin L 78. Much may also depend upon the reasons provided by the Tribunal for either accepting or rejecting a claim. There is also a very real prospect that minds may differ as to whether the Tribunal has in fact properly engaged with the claim being made and resolved that claim or whether it has, improperly, "sidestepped" that process. What is to be insisted upon is a consideration of the claim being advanced; what is to be shunned is an impermissible exercise of merits review under the guise of an assertion of jurisdictional error. The factual merits of the present application should be left to the Tribunal to now determine in accordance with law. No view is expressed as to those merits.