S395-2002 v Minister for Immigration and Multicultural Affairs; S396-2002 v Minister for Immigration and Multicultural Affairs

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Gleeson CJ,McHugh,Kirby JJ,Gummow,Hayne JJ,Callinan,Heydon JJ
• Judgment Date: 09 December 2003
• Neutral Citation: 2003-1209 HCA A,[2003] HCA 71
• Date: 09 December 2003
• Docket Number: Matter No S395/2002 Matter No S396/2002 S395/2002 and S396/2002

Appellant S395/2002

Appellant

and

Minister for Immigration and Multicultural Affairs

Respondent

Appellant S396/2002

Appellant

Minister for Immigration and Multicultural Affairs

Respondent

[2003] HCA 71

Gleeson CJ, McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ

Matter No S395/2002

Matter No S396/2002

S395/2002 and S396/2002

HIGH COURT OF AUSTRALIA

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs Appellant S396/2002 v Minister for Immigration and Multicultural Affairs

Immigration — Refugees — Particular social group identified as homosexual men in Bangladesh — Whether well-founded fear of persecution — Whether error of law by Refugee Review Tribunal in finding that no real chance of persecution because appellants conducted themselves discreetly and would continue to do so — Whether finding had effect of requiring appellants to act discreetly to avoid persecution — Whether need to act discreetly to avoid serious harm constituted persecution.

Migration Act 1958 (Cth), s 476(1)(e).

Representation:

B Levet with P de Dassel for the appellants (instructed by Bharati Solicitors)

S J Gageler SC with S B Lloyd for the respondent (instructed by Australian Government Solicitor)

Intervener:

J W K Burnside QC with S E Pritchard appearing as amicus curiae on behalf of Amnesty International Australia (instructed by Allens Arthur Robinson)

ORDER

In each matter:

1. Appeal allowed with costs.

2. Set aside the orders of the Full Court of the Federal Court dated 20 February 2002 and, in place thereof, order that:

• (a) the appeal be allowed with costs; and

• (b) the orders of Lindgren J dated 26 July 2001 be set aside and, in place thereof, order that:

  • (i) the application be granted with costs;

  • (ii) the decision of the Refugee Review Tribunal dated 5 February 2001 be set aside; and

  • (iii) the matter be remitted to the Tribunal for re-determination.

1 Gleeson CJ. The system of judicial review of administrative action, as it operates in relation to visa applications by people seeking acceptance as refugees, often means that, by the time a case reaches this Court, it is at the fifth level of decision-making. It may be, as in this case, that there have been adverse decisions at the first and second levels (the Minister's delegate and the Refugee Review Tribunal (‘the Tribunal’)) and that the Tribunal's decision has been upheld at the third (Federal Court of Australia) and fourth (Full Court of the Federal Court) levels. It may not be surprising that, at the fifth level, an appellant will look for a new way of putting a case that has already failed on four occasions. The case put to this Court may bear little relationship to what was previously advanced, considered, and rejected. There is a risk that criticism of the reasoning of a decision-maker at an earlier stage might overlook the forensic context in which such reasoning was expressed; a context that may have changed almost beyond recognition. Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant's lawyers, at some later stage in the process 1.

2 The reasons for judgment of other members of the Court set out the general background to the present appeals, and it is unnecessary to repeat them. In considering whether the decision of the Tribunal involved error, it is necessary to be clear about the case which the appellants sought to make to the Tribunal, and the reasons why that case was rejected.

3 The appellants based their claim that they had a well-founded fear of persecution if they returned to Bangladesh upon a series of assertions as to what had happened to them in the past. Their claim failed because those assertions were comprehensively disbelieved.

4 The appellants told the Tribunal that they were homosexuals who had been living in Bangladesh in a domestic relationship, and that they had been ostracised by their families. The Tribunal accepted that much, but very little else, of what they had to say. The appellants claimed they had been sentenced to death by a religious council. They said they feared that, if they returned to Bangladesh, they would be killed or suffer other serious harm. That was the essence of their case before the Tribunal. That was the form of persecution in question. The appellants supported that case by evidence of threats and violence which they said they had experienced over many years.

5 In its reasons, the Tribunal, before recording the history of threats and violence given by the appellants, and for the purpose of evaluating the evidence of the appellants, set out, by way of background information, what it described as ‘the situation of homosexual men in Bangladesh’. That information concluded with a summary to the effect that homosexuality is not accepted or condoned by society in Bangladesh, that it is not possible to live openly as a homosexual, but that people prefer to ignore the issue rather than confront it, and that ‘Bangladeshi men can have homosexual affairs or relationships, provided they are discreet’. That information was to be used to evaluate the reliability of the account of threats and violence given by the appellants. The Tribunal then turned to that account.

6 The first appellant said that his problems began in 1994 when, while he was living at home with his parents, some Islamic fundamentalists entered his bedroom and found him having sex with a male servant. He was told to leave home. Soon afterwards, he met the second appellant, and went to live with him. He said that local people abused, insulted, bashed and tortured him. When he and the second appellant moved to another locality, they were attacked and beaten, and their possessions were destroyed. They then came to Australia. They made a return visit to Bangladesh, but the first appellant's employer humiliated him and forced him to leave his job. Local fundamentalists issued a fatwa, which decreed that he should be stoned to death. He returned to Australia.

7 For reasons that were explained in detail, the Tribunal found that information internally inconsistent and unconvincing. Those reasons are not in issue in these appeals, and it is unnecessary to go into them. The Tribunal also found the evidence difficult to reconcile with the background information referred to earlier. It is to be emphasised that the first appellant's claim of fear of future persecution was based upon an account of violence, torture, and condemnation to death, and a prediction of death or serious injury, not upon any supposed concern about being obliged, against his will, to behave discreetly.

8 The second appellant's account of what had happened to him was at least as graphic, but, in the judgment of the Tribunal, even more difficult to accept. He said he left his family in 1980, when they suspected he would never marry. In 1980 or 1981, he raped several young men at his workplace. This resulted in the loss of his job (only). Before he met the first appellant, he had a relationship with another man. They were attacked on a number of occasions by Islamic fundamentalists. He was sentenced by the fundamentalists to 300 lashes of a whip with a stone on the end. He said the lashing left him scarred. The Tribunal asked to inspect the scars, and could find none. After the two appellants began to live together, they were mobbed on the street and beaten. The second appellant also was condemned to death by stoning. Again, for reasons set out in considerable detail, the Tribunal found the second appellant's evidence unworthy of credit. Again, it is presently immaterial to go into the detail of the Tribunal's reasons for rejecting the second appellant's account of what had happened to him.

9 At the conclusion of the outline of the case made by the appellants, the evaluation of their evidence, and the explanation of the reasons for disbelieving that evidence, the Tribunal made the following statement, which is the foundation of the present appeal:

‘[The first appellant] and [the second appellant] did not experience serious harm or discrimination prior to their departure from Bangladesh and I do not believe that there is a real chance that they will be persecuted because of their sexuality if they return. As discussed above, while homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it. [The appellants] lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families. They clearly conducted themselves in a discreet manner and there is no reason to suppose that they would not continue to do so if they returned home now.’

10 When that passage is considered in the context of the claim advanced by the appellants, their evidence, the Tribunal's evaluation of the evidence, and the reasons given for rejecting that evidence, it is clear that the Tribunal was neither counselling nor requiring discretion on the part of the appellants. The statement that they had conducted themselves in a discreet manner in the past was made in the course of giving reasons for disbelieving their account of what had occurred to them in Bangladesh. It was part of a finding that they had not been attacked, beaten, tortured, or condemned to death, as they alleged. It was a finding of a fact relevant, and damaging, to their claim that they had reason, based on past events, to fear that they would be killed or seriously injured if they were to return to Bangladesh. The observation that they would behave in the future as they had in the...