S135 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 199 (17 February 2005)

Last Updated: 15 March 2005

FEDERAL COURT OF AUSTRALIA

S135 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 199

MIGRATION – no point of principle
































S135 OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS
NSD 1154 OF 2004


MOORE J
17 FEBRUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1154 OF 2004

BETWEEN:	S135 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	17 FEBRUARY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application for leave to appeal be dismissed.

2. The applicant pay the respondent's costs.

3. Costs be fixed at $650.00.

THE COURT DIRECTS THAT:

4. No further application be accepted in this Court which is a challenge to the decision of the Refugee Review Tribunal handed down on 23 October 2002 except by leave of the Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1154 OF 2004

BETWEEN:	S135 OF 2003 APPLICANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	MOORE J
DATE:	17 FEBRUARY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(Ex Tempore – Revised)

1 This is an application for leave to appeal against a judgment of Emmett J of 16 July 2004 refusing an application of the applicant for an order nisi for constitutional writs. That application was remitted to this Court by the High Court on 20 August 2003.

2 The applicant arrived in Australia on 13 April 2000 and lodged an application for a protection (class XA) visa on 16 May 2000. A delegate of the Minister for Immigration and Multicultural and Indigenous Affairs ("the Minister") refused to grant the visa on 23 May 2000. The applicant applied for review of that decision to the Refugee Review Tribunal ("the Tribunal") on 2 June 2000. On 23 October 2002 the Tribunal affirmed the decision of the delegate. On 12 December 2002 the applicant applied to this Court for review of the decision of the Tribunal. Branson J dismissed that application on 13 March 2003. On 11 April 2003 the applicant filed a draft order nisi in the High Court which was then remitted to this Court. Emmett J refused that application on 16 July 2004.

Background

3 The applicant claimed to be a Bangladshi citizen, single and homosexual. He claimed to have entered Australia using an Indian passport under a false identity. He claimed to fear persecution for reasons of sexuality and religion. Essentially he claimed his sexual activities and involvement in western music were seen as offensive to Islam. He suffered persecution by being expelled by his family, asked by his room-mates to move out of his accommodation and losing his job. He suffered harm by the disapproval of his family and the threat of suicide by his mother.

The Tribunal's decision

4 The Tribunal did not find the applicant a reliable witness. Though prepared to accept he was homosexual, it was not satisfied that he was at risk of harm on religious grounds for his involvement in music or that he lost his job because he was homosexual. The Tribunal did not accept that being asked to leave his accommodation by his room-mates or being disapproved of by his family amounted to persecution. Nor did it find that his mother's threat of suicide unless he got married amounted to persecution for a Convention reason.

The judgment below

5 Before Emmett J, the grounds in the draft order nisi filed on 11 April 2003 were that:

· the third respondent did not follow the proper procedure required by the Act;

· the third respondent’s decision was affected by an error of law, jurisdictional error and lack of procedural fairness;

· there was no evidence or other material to justify the making of the decision;

· the applicant was denied natural justice before the Minister’s delegate;

· there was a constructive failure of jurisdiction by the Minister’s delegate in failing to address the correct legal question and by not applying himself to all the issues he was required to consider;

· there was a failure by the Minister’s delegate to exercise jurisdiction;

· the decision of the Minister’s delegate was made in breach of the rules of natural justice.

No particulars were furnished but the applicant said at the hearing that he wanted his case reconsidered in light of the High Court decision in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs, Appellant S396/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 ("S395") argued on 8 April 2003 with judgment handed down on 9 December 2003. Emmett J also dealt with a motion filed by the Minister seeking summary dismissal of the proceeding on the basis that the application was an abuse of process in so far as it sought to relitigate the same questions that were litigated before Branson J, or ought to have been.

6 Emmett J found the assertion that the circumstances of the applicant's case were the same as those in S395 misconceived. His Honour said (at [21]–[24]):

The majority in Appellant S395 of 2002 concluded that the Full Court of this Court erred in failing to order that a decision of the Tribunal relating to Bangladeshi homosexuals be set aside. The majority concluded that the Tribunal made errors of law in applying the definition of ‘refugee’ to the appellants in that case. Thus, the Tribunal erred in impliedly dividing homosexual men into two particular social groups, discreet and non-discreet. It failed to consider whether the need to act discreetly to avoid the threat of serious harm constituted persecution, and failed to consider whether the appellants might suffer serious harm if members of the Bangladesh community discovered that they were homosexuals.
The majority concluded that the Tribunal was in error in not addressing the fundamental question of whether there was a well-founded fear of persecution. The Tribunal did not consider whether there was a real chance that the appellants would be subjected to any of the more serious forms of harm that the Tribunal accepted a person would face if that person attempted to live openly as a homosexual in Bangladesh. The Tribunal failed to consider whether subjection to any of those more serious forms of harm would amount to persecution.
...
The applicant did not advance before the Tribunal any assertion that he was at risk in Bangladesh if he openly engaged in a homosexual relationship and that he was required to act discreetly. The only case advanced, so far as concerned his sexuality was that he feared the disapproval of his family and the possible suicide of his mother. That assertion was fairly dealt with by the Tribunal, as Branson J held. In all of the circumstances, I consider that it would be futile to allow this proceeding to continue to a final hearing.

His Honour held that no arguable case for relief had been disclosed and that S395 did not suggest any error on the part of Branson J and that if it had, the appropriate course would have been to seek leave to appeal out of time from the orders of Branson J. His Honour added that the delay from the time of the Tribunal's decision to the commencement of the High Court proceeding would be reason for refusing relief in any event. His Honour dismissed the application for an order nisi.

The application for leave and its disposition

7 On 27 July 2004 the applicant filed a document styled 'notice of motion' which I have taken to be an application for leave to appeal. Accompanying that document were a draft notice of appeal and an affidavit in support filed the same day. The applicant seeks orders that the notice of appeal be allowed and the matter be heard by a Full Court.

8 In his affidavit filed 27 July 2004 the applicant states that he strongly believes his case is identical with S395 and that his case was not properly dealt with by the trial judge of the Federal Court. The grounds relied on in his draft notice of appeal are set out below:

a) The honourable Federal court failed to find that the Refugee Review Tribunal (the RRT) erred in law in determining that one could practice homosexuality "discretely" without a real chance of harm, one was not at real risk of persecution in Bangladesh.
b) The honourable Federal court failed to find that the Refugee Review Tribunal (the RRT) erred in law in determining that the applicant did not fall within a class of persons constituting "a particular social group" for the purposes of Article 1A(2) of the Refugees Convention and that "homosexuals are not prosecuted for their sexual activity and there is no reliable evidence from the applicant that he has ever experienced any serious harm because of his sexuality" in Bangladesh.
c) The honourable Federal court failed to find that the Refugee Review Tribunal (the RRT) erred in law in determining that applicant was not at real risk of harm regardless of how he practiced his homosexuality, and took into account the behaviour towards him when he was in Bangladesh of those who knew that he was homosexual in reaching that view.

The grounds were accompanied by four numbered particulars which did not appear to relate directly to the grounds. They were largely lengthy extracts of cases cited but not in any meaningful context. What particulars there were are set out as follows.

9 Under the heading "Particulars: 1 Homosexual activities accepted by the DIMIA & RRT", the applicant stated that the Tribunal accepted he was a homosexual and therefore his case must be identical with the High Court cases of S395 and S396. Under the heading "Particulars: 2 Living openly as a homosexual", the applicant made what were essentially submissions about what constituted persecution under the Convention. He submitted that the Convention would give no protection from persecution for Convention reasons if a condition of protection were "that the person affected must take steps – reasonable or otherwise – to avoid offending the wishes of the persecutors" or, in the case of "membership to a particular social group" that members hid their membership or modified some attribute or characteristic of the group to avoid persecution.

10 Under the heading "Particulars: 3 Particular social group", the applicant made submissions about the definition of a particular social group and quoted from many cases. However, no actual argument was made. Under the heading "Particulars: 4 'WELL-FOUNDED'", the applicant made submissions about the meaning of a "real chance". He submitted that the Tribunal accepted he was homosexual and that this could be a particular social group under the Convention and that there was evidence that homosexuals in Bangladesh do face discrimination and a certain amount of violence at the hands of the public, gay bashings, police mistreatment and that homosexual acts remained illegal in Bangladesh. He submitted the Tribunal erred in finding that if one could practise homosexuality discreetly without a real chance of harm, one was not at real risk of persecution.

11 I have read the relevant parts of the Tribunal's decision and also the reasons of Emmett J of 16 July 2004. It appears to me that his Honour was well able to conclude that an order nisi should not issue in the circumstances. There was no error attending the decision of the Tribunal or, indeed, any error attending the decision of Branson J to the extent that that may have been a relevant question in considering whether an order nisi should issue. In particular, the Tribunal did not base its decision on the footing that homosexuals in Bangladesh could avoid persecution only by expressing their sexuality discreetly.

12 His Honour's decision appears to me, with respect, to be correct. The grant of leave would be futile. The application for leave should be dismissed with costs fixed in the sum of $650. A direction will be made qualifying the applicant's right to relitigate issues already ventilated in this Court.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 14 March 2005

The applicant appeared in person
Solicitor for the Respondent:	Sparke Helmore
Date of Hearing:	17 February 2005
Date of Judgment:	17 February 2005