Applicant S114/2002 v MIMA S114/2002 [2002] HCATrans 487 (11 October 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S114 of 2002

B e t w e e n -

APPLICANT S114/2002

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS

Respondent

Office of the Registry

Sydney No S115 of 2002

B e t w e e n -

APPLICANT S115/2002

Applicant

and

MINISTER FOR IMMIGRATION and MULTICULTURAL AFFAIRS

Respondent

Applications for special leave to appeal

GAUDRON J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 OCTOBER 2002, AT 12.14 PM

Copyright in the High Court of Australia

__________________

MR P. de DASSEL: May it please the Court, I appear for the applicants, your Honours. (instructed by Bharati Solicitors)

MR S.B. LLOYD: May it please the Court, I appear for the Minister in both of these matters. (instructed by Blake Dawson Waldron)

GAUDRON J: Thank you.

MR de DASSEL: Your Honours, I am only briefed to ask for an adjournment application in this matter.

GAUDRON J: If you hear what we have to say, you and your solicitor might like to consider the matter further. We had thought that we would be more assisted by hearing from the respondent first in this application than by hearing the argument for the applicants. We see no reason that subject to your getting instructions why we do not see what the respondent has to say in opposition to the grant of special leave and if at the end of his submissions it becomes necessary we could grant you an adjournment then but it may or may not become necessary. Do you want to raise that with your solicitor?

MR de DASSEL: We would agree to that course.

GAUDRON J: Very well, thank you. Mr Lloyd.

MR LLOYD: What a surprise.

KIRBY J: We like to give little surprises on special leave days.

MR LLOYD: May it please the Court. Both of the matters are the same, as your Honours will appreciate, the application books are the same.

The decision of the Tribunal in this case accepted that both applicants were homosexuals, accepted that there was a particular social group comprised by homosexuals - - -

GAUDRON J: That seems to me to be the first problem. They identified social group in one way, in a broad way, then descend in the particulars whereas it seems to me there may well be a problem as to whether there is the correct identification of a social group having regard to the way in which the Tribunal discussed how matters operated or matters worked out in Bangladesh.

MR LLOYD: I understand what your Honour is saying, that the Tribunal, after saying that homosexuals may form a particular social group, then goes on to analyse what risks that homosexuals in Bangladesh face.

GAUDRON J: The real question is, was that the correct social group to identify - homosexuals generally, as distinct from homosexuals who were known to be such or who openly proclaimed their homosexuality? There may be a distinction in both areas but it seems to be distinction that was not taken into account. Certainly, there is not much doubt that some people at least knew about the sexual preferences of these gentlemen. There is no doubt about that, is there?

MR LLOYD: It would seem at least that their families knew about it but the finding of fact by the Tribunal was in terms of drawing a distinction between people who were open about their relationship and those who lived a discreet relationship.

GAUDRON J: That simply begs the question of what was the correct social group - how to the define the social group.

MR LLOYD: In my submission, the question the Tribunal has to ask is whether or not the applicants have a fear of persecution for a Convention reason which is well founded. The decision of the Tribunal does not hinge upon whether or not there was a Convention reason. The decision of the Tribunal - - -

GAUDRON J: It hinges upon the proper application of the Convention.

MR LLOYD: What I am trying to put to your Honour is that even if - and I do not accept that it did, but even if it did identify the wrong social group, it was not a material error because the Tribunal did not reject the applicants on the basis that their fears were not for a Convention reason. They were rejected because the fears were not well founded and the findings which go to the well foundedness of the fear are independent.

GAUDRON J: Again, that seems to me just to go around in circles, you just go back to where you start. Whether or not the fears are well founded depend upon whether or not you fear persecution and that ultimately comes back to the definition of the social group.

MR LLOYD: In this case, your Honour, the Tribunal has said there is a particular social group of homosexuals; these people are a member of it, but they do not say, as the applicants suggest, that all homosexuals have a well-founded fear. What the Tribunal then does, in my submission appropriately, is consider whether or not these two applicants have a well-founded fear by reason of their membership of the particular social group.

KIRBY J: The point Justice Gaudron is putting to you is that it depends on how one defines the particular social group. If you define it at a high level of generality of homosexuals you will reach one conclusion, if you define it at another level of generality of homosexuals who are open and in a committed relationship, then you may have different consequences because as I understand the finding of the Tribunal it was that so long as they keep it all very quiet and discreet they will not be persecuted but if they go so far as to have a relationship and live together, showing love to each other, then they do run into very serious consequences.

MR LLOYD: With respect, your Honour, I do not think the Tribunal goes that far. The Tribunal acknowledges that men can live together and that would not be a problem.

GAUDRON J: So long as it does not become known that they are living together in a homosexual relationship.

MR LLOYD: That is so.

GAUDRON J: Were there findings that nobody knew about this relationship? No.

MR LLOYD: There were findings that they had not had difficulties in Bangladesh.

GAUDRON J: That dose not really answer the question.

MR LLOYD: The approach of the trial judge and the appeal court was to - and in my submission the correct approach, was to construe the Tribunal's reasons - - -

GAUDRON J: No, you never construe Tribunal's reasons. The Tribunal is either applying the Convention or it is not. You may do the best to read the Tribunal's reasons so as to understand what it is being done but it is not a matter of construing them. Either the Tribunal was applying the Convention or it was not.

MR LLOYD: I accept that, your Honour, but - - -

KIRBY J: This is the Convention according to Australian law by section 36 the Act?

MR LLOYD: That is so, your Honour. I am not saying that. What I am saying is what the trial judge did in the Full Court was reading, to use your Honour's words - the Tribunal to try and make sense - - -

GAUDRON J: To try and make it fit the Convention, in a sense.

MR LLOYD: To try and understand what the Tribunal was saying and what his Honour Justice Lindgren and the Full Court said. The relevant passage is perhaps in paragraph 17 - - -

KIRBY J: Yes, that is the passage I have noted. It seems to be saying that a person does not suffer persecution so long as they do not challenge the values and mores of Bangladeshi society but one's view of what challenges the values and mores of Bangladeshi society may be in the eye of the beholder. They may simply be getting on with their lives but the consequence of their doing so may be to challenge the values and mores of Bangladeshi society.

MR LLOYD: Yes, and that is what the Tribunal, in my submission, found, that if you live your life in a way that challenges the mores of Bangladeshi society then you may have a well-founded fear of persecution. But it then found that these people did not - - -

KIRBY J: It seems to be endorsing a rather closeted view of homosexual life and saying that there will not be persecution so long as yo conform to that but if you do not, then you do run the risk of persecution or at least have they addressed that question? Has the Tribunal addressed that question, that is the issue? Has the Full Court or Justice Lindgren addressed that question? This is what is put in the submissions for the applicant, it said that they have not addressed the correct question by addressing the, as it were, necessity of persecution having actually occurred as distinct from what they fear, that is what the Convention talks of.

MR LLOYD: I understand that, your Honour. In my submission, what the Tribunal did do was consider whether or not their fear, which was not disputed, was well founded. It considered that it was not well founded because in the way that they live their life they had not had any difficulties in Bangladesh and that in accordance with the country information - - -

KIRBY J: That is the past, that is talking about - this is the complaint of the applicants.

MR LLOYD: I understand that, your Honour, and that in accordance with the country information somebody who lives their life as they did would not have difficulties and that is the finding of the Tribunal at the bottom of page 19, over on to page 20.

KIRBY J: This problem must arise in a number of cases. It may be that what the Federal Court has said is correct and the Tribunal has acted in a correct way but it would, at least possibly, be of significance for a number of cases. It is, in effect, saying you cannot have a well-grounded fear of persecution if the only way you will have that is by living openly and therefore if that is the case you cannot have the well-grounded fear of persecution.

MR LLOYD: Your Honour, what the cases say is, if having to live discreetly could itself constitute persecution, then that is something the Tribunal looks at as well. That was, in fact, the challenge in this case below, that the Tribunal should have considered whether or not the need to live discreetly was persecution and the point taken was that that was never argued that they suffered persecution by having to live discreetly. Their case was that people knew but that was rejected on the inconsistencies and so they were in a position whereby the Tribunal had found that they had always lived in a manner which did not expose them to risk.

KIRBY J: That may well be an answer on the facts. You say that the issue of discreet or not dose not arise on the facts but what about Justice Gaudron's point which is that the Tribunal and the Federal Court had not addressed the definitional question of what is the social group that is involved here?

GAUDRON J: It really seems to be hard to say that the social group is homosexuals generally when, according to the evidence, they identify some people as homosexuals and other people who are homosexuals as not homosexuals. Social grouping is an eye of the beholder in a sense too.

MR LLOYD: Accepting that the beholder is the Tribunal.

GAUDRON J: No. Social groupings will really very much depend on how things operate in Bangladesh.

KIRBY J: We had this problem in Applicant A, the question was how you defined the particular social group; was it people who were not conforming with the law of China on the one-child policy or did you define it at a different level of abstraction? The problem here is they have used a most general of abstraction of homosexuals which can cover a multitude of sins, if we can put it that way.

GAUDRON J: And then it said only some of the victims of persecution.

MR LLOYD: As a question of fact, there cannot be anything wrong with saying in a particular country there is a social group of X and only some of those people are at risk. If that is the facts, then the Tribunal is - - -

GAUDRON J: It is a very funny way of looking at it, is it not? How can you constitute a social group, broadly defined, in circumstances in which the Tribunal says that they prefer not to confront it, they prefer to turn a blind eye to it, and how can the people to whom they are turning a blind eye really be part of that same social group? That is the difficulty I find in the way it has been approached.

KIRBY J: Is it not a little analogous to the- is it, Khawar, the case of women in Pakistan who have had a breakdown of their relationship with their husband and who have been threatened with burning? The more specificity you have the greater possibility you will have of a finding of well-grounded fear of persecution. If you say it is all women in Pakistan, it is a different kettle of fish than if you add all the ingredients that add to the particular risk of well-founded fear of persecution in the particular case.

MR LLOYD: If in this case there was an error, the error could only have been in favour of the applicants. If the true social group on the findings of the Tribunal was of homosexuals who were open - - -

KIRBY J: Not really because if you say homosexuals, then that will include people who are completely secret and denying to themselves; people who are secret but being discreet in their relationships; people who are being a little bit open going to an occasional function; people who are being very open and living together and in a sense confronting the society's mores. So you have different categories and the great the specificity the greater the chance of a well-grounded fear of persecution.

GAUDRON J: I do not know that I would necessarily agree with that legal conclusion but the greater the chance that the Tribunal will be seen to be applying the Convention and yet I think -

KIRBY J: I agree with the way Justice Gaudron has put it.

MR LLOYD: In my submission, to look at a social group in that way would be to be inconsistent with the line in Applicant A, that is to say, who is being persecuted and we will define a social group by the people who are being persecuted. What the Tribunal has done - - -

GAUDRON J: The problem is how can you define a social group in the way it is being defined when according to the evidence and according to the findings half of the people in the social group are not recognised as being in that social group because Bangladesh people prefer to turn a blind eye? That is the difficulty I have with it.

MR LLOYD: That may be so, but again, in the circumstances of this case and on the facts of this case - - -

KIRBY J: You have to say that whatever may be the merits of these particular arguments in another circumstance, in this case they did not run their case that way, they ran their case on the fatwa and on the challenge that they made and they lost on those points and that therefore you essentially have to put up that this is not a suitable vehicle to test these other propositions because they did not run their case on the level of generality that we are talking of.

MR LLOYD: That is certainly so. It is also so that this point has never been run in the courts below the way that your Honours are discussing it.

KIRBY J: But, query, whether the Federal Court should have said in this case that essentially what the Tribunal was saying was that homosexuals are not in the group such as will have the propounded fear but only on the basis that they are secretive, which some people do not think is the right way to live.

MR LLOYD: I am not suggesting that it is the right way to live, I am just suggesting - - -

KIRBY J: Some Bangladeshis do not think that.

MR LLOYD: I am sure that is so. What the Tribunal was finding, however, was that these two particular applicants, if they continue to live in the way they were living and therefore there can be no suggestion that they were suffering persecution in choosing to live that way - they did not say that they had problems in choosing to live that way - then in those circumstances these two particular applicants would not be in the position where they would face a well-founded fear of persecution. Having a broad definition of the particular social group only makes it easier for them to say that they had a Convention reason.

If the social group were narrowed, to use the approach of Justice Lindgren as he described it, to Aboriginals who live in a relationship in a way which confronts the Bangladeshi society, then clearly on the findings of the Tribunal these two applicants would not fall within it so defining the social group in that way would also not assist them, that would only lead to them losing in two ways. First of all, their fear would not be well founded and in addition they would not even fall within the social group.

Perhaps another analogy would be in an area of religion, for example, and proselytising. There are certainly cases which indicate that if you can practice a religion in respect of which proselytising is not a part of it and you can do it and so long as you practice quietly, you do not face any arm of persecution, then that is so and the Tribunal can make a finding that if you are of a particular religion in a country, then - an example might be Sabean Mandaeans in Iran - - -

KIRBY J: This has come up in a number of cases in China too, I think.

MR LLOYD: In China as well.

GAUDRON J: The early Christians took a different view. They thought if they had to go into hiding that was persecution in itself.

MR LLOYD: I understand. That is why I gave the example of Sabean Mandaeans. The Sabean Mandaeans do not have as part of their religion proselytising, it is not required of them, it is just not part of their religion. The general findings of the Tribunal in relation to Sabean Mandaeans is that they will not face persecution just merely by being Sabean Mandaeans. They are a particular social group, they are also a religion, but that is not enough. But if they were out proselytising and trying to convert Muslims, they would then be in a great deal of trouble. Sso in my submission - - -

GAUDRON J: I have not heard of the Sabean Mandaeans. What country are we talking about in theory?

MR LLOYD: Sabean Mandaeans are Iranians.

GAUDRON J: Thank you.

KIRBY J: Are they Baha'i?

MR LLOYD: No, they are a pre-Christian religion.

KIRBY J: I see.

MR LLOYD: There are some similarities, but Jesus Christ - it is more John the Baptist is there focal point rather than - - -

KIRBY J: You are making this case sound more interesting.

MR LLOYD: That is a mistake. I can tell you Sabean Mandaeans will not come under their case, your Honour. I do not know that I can assist the Court any further.

GAUDRON J: Thank you, Mr Lloyd. Mr de Dassel, we do not really think we need to hear from your side of the Bar table.

MR de DASSEL: As the Court pleases.

GAUDRON J: Mr Lloyd, there will be a grant of special leave in this matter.

MR LLOYD: In both matters, your Honour?

GAUDRON J: In both matters, yes, I am sorry. They will be heard together and I am assuming that they can comfortably be heard in half a day. It is a short point, is it not? Again, if counsel cannot work out the allocation of time between them, the Court will do it for them.

AT 12.36 PM THE MATTERS WERE CONCLUDED