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High Court of Australia Transcripts |
Sydney No S395 of 2002
B e t w e e n -
APPELLANT S395 OF 2002
Appellant
and
MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
Office of the Registry
Sydney No S396 of 2002
B e t w e e n -
APPELLANT S396 OF 2002
Appellant
and
MINISTER AND IMMIGRATION AND MULTICULTURAL AFFAIRS
Respondent
GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON TUESDAY, 8 APRIL 2003, AT 10.19 AM
Copyright in the High Court of Australia
MR B. LEVET: May it please your Honours, I appear with my learned friend, MR P. de DASSEL, for the appellants. (instructed by Bharati Solicitors)
MR S.J. GAGELER, SC: If the Court pleases, in each matter I appear with MR S.B. LLOYD for the respondent Minister. (instructed by Australian Government Solicitor)
MR J.W.K. BURNSIDE, QC: If it please the Court, in each matter I appear with my learned friend, MS S.E. PRITCHARD. We seek leave to be heard as amicus curiae in the interests of Amnesty International Australia. (instructed by Allens Arthur Robinson)
GLEESON CJ: Now would be a convenient time to make that application.
MR BURNSIDE: If the Court please.
KIRBY J: You are seeking to intervene in support of the appellants?
MR BURNSIDE: We are.
KIRBY J: I think you say at the end of your written submissions that you have the consent or support of the appellants in that respect, is that correct?
MR BURNSIDE: That is so. As we understand it, the Minister does not oppose our intervention provided it is limited to written submissions.
GLEESON CJ: Is it an application to intervene or an application to appear amicus curiae?
MR BURNSIDE: An application to appear amicus curiae. If given that leave, we would seek first of all to rely on the written submissions which the Court has received, but in addition to develop one point in particular in oral submissions which has not been fully explored in the written submissions thus far filed.
GUMMOW J: What point is that?
MR BURNSIDE: That point, your Honour, focuses on this proposition, that the meaning of the words "discreet" and "discretion", where used in various judgments of courts at various levels, differs enormously and thus the content of the obligation or assumption or expectation of discretion varies enormously from case to case and we would wish to develop the point that emerges from that fact. The Court, I take it, has seen the affidavits of Georgina Louise Perry in support of that.
GLEESON CJ: Yes, we have read that.
MR BURNSIDE: In our submission, your Honours, the question raised in these cases is an important question and it is desirable that this Court should have such assistance as we are able to give in addition to the assistance provided by the parties. We are able to approach the matter from the more remote or less involved position of amnesty, which is something of course that the appellants are unable to do; they have their own immediate interests to be concerned with.
We would wish to make a submission based on this, that because the meaning of "discreet" is so various, the consequence of the assumption of discretion in some cases will involve a complete denial of fundamental human rights, including the right to one's own identity, and in less extreme cases will be a reflection of the circumstances which give rise to a fear.
Put shortly, it would be our submission that depending on the particular meaning of discretion in a particular case the requirement to be discreet, or the fact of having been discreet in the past, or the expectation of being discreet in the future is apt not to answer the question whether the person is likely to suffer persecution but to raise the question how extreme are the steps that they must take in order to avoid persecution.
HAYNE J: Was the proposition you are seeking to advance any more complex than it is necessary to pay close attention to the facts of the particular case?
MR BURNSIDE: With respect, your Honour, yes, it is more complex than that because the word "discreet" seems to be used in all the cases as if it had a fixed content.
McHUGH J: How long is it going to take you to develop this argument orally, Mr Burnside? It sounds as though it will take some time if you are going to go through these cases.
MR BURNSIDE: We do not propose to go through the cases except to identify in passing the content that has been given to the word in various cases. I should not have thought that we would need more than 20 minutes to expound the point. If the Court please.
GLEESON CJ: Thank you. Mr Levet.
MR LEVET: Your Honour, I am instructed that the appellants do not oppose that course of action.
GLEESON CJ: Thank you. Mr Gageler.
MR GAGELER: Your Honours, we do not object to leave being granted at all. As to the scope of leave, in our submission it ought be confined to the question of principle, if it arises, that question being whether a denial of freedom to express sexual preference can constitute persecution. It ought not extend to the identification of any specific error on the facts of this case on the part of the Tribunal. In particular, in that regard, paragraphs 41 to 47 and paragraphs 23 to 40 of our learned friend's written submissions go well beyond anything sought to be raised on the facts of this case by the appellant.
As to the mode of appearance, in our submission, it ought to be limited to written submissions, the appellants being adequately represented and our learned friend's written submissions for Amnesty International being fulsome.
KIRBY J: He only wants 20 minutes. We even give special leave litigants in person 20 minutes.
MR GAGELER: He wants 20 minutes to deal with an additional point, which comes down to saying, it all depends on the facts. If that is what he wants to say, that is by no means in issue, we accept that. One has to look at the facts of the individual case. If he wants to look at the word "discretion", the word "discretion" is not a statutory term, it is not even a term of art - - -
KIRBY J: It seems to be used in a lot of the cases - almost all of them.
MR GAGELER: It is a term that appears from time to time in the cases. We are not concerned with an audit of all the cases where the word "discretion" has been used. We are concerned with the appeal in this case.
GUMMOW J: No, the problem is that those cases may be giving rise to some gloss on the Convention definition which really is not there. If it is not there, it should be expunged.
MR GAGELER: One does not need to trawl through the cases where a word has been used to determine that. If the Court pleases.
GLEESON CJ: Yes, thank you. We will adjourn for a short time to consider the course we will take in this matter.
AT 10.27 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.29 AM:
GLEESON CJ: The majority of the Court is of the view that the applicant should have leave to appear amicus curiae, but that such leave should be limited to the written submissions that have been filed and in those written submissions limited to the point of principle raised by the written submissions.
KIRBY J: That would not prevent, in my view, the applicant renewing the application later in the day if the development of the case so indicated.
GLEESON CJ: Yes, Mr Levet.
MR LEVET: Thank you, your Honour. Your Honours:
"Simple justice" is achieved when a complex body of law developed over a period of years is evenhandedly applied.
Those words are not mine. There were uttered 22 years ago in the United States Supreme Court by Justice Rehnquist in Federated Department Stores v Moitie. That sentence encapsulates what this case is about from the position of the appellants. They seek simple justice. There is a complex body of law that has developed in relation to refugee applicants, pursuant to convention, over a number of years.
The appellants seek that the body of law that has been developed be even-handedly applied. The contention of the appellants is that there is a de facto requirement of discretion and that de facto requirement of discretion is applied only in respect of refugee claimants fearing persecution on the basis of their sexual orientation.
GLEESON CJ: Requirement by whom?
MR LEVET: It is in effect a requirement that has been adopted by the tribunals and the Federal Court in applying a test as to whether an individual applicant has a well-founded fear of persecution. Your Honours, in the present case there have been findings of fact in the Tribunal which give rise to the particular basis of the appeal. There is a finding of fact that the appellants are homosexuals and that they have lived together since 1994.
GLEESON CJ: Mr Levet, can I ask you about technically a matter of fact that I was not able to work out from the reasoning of the Tribunal. If you look at page 142 lines 1 and 2, that is a reference to information that came from a lawyer to the effect that he had never heard of anyone who had been prosecuted for or convicted of homosexuality. I do not imagine, although I do not know, that there is a crime of homosexuality, but what, if any, provisions of the criminal law of Bangladesh bear upon the conduct of your clients?
MR LEVET: Your Honour, I am not able to - - -
GLEESON CJ: That appears to be a reference to something but I do not know exactly what it is.
HAYNE J: It is a reference, is it not, to what appears at page 113, as appears from the last line on page 141 referring to the ILGA world legal survey of 1999? If you go to 113, that seems to be the document. I may be quite wrong.
GUMMOW J: Section 377 of the Penal Code.
MR LEVET: I am indebted to your Honour.
GLEESON CJ: That is it, is it?
MR LEVET: Yes, your Honour.
GLEESON CJ: Section 377 of the Penal Code?
MR LEVET: Yes, your Honour.
GLEESON CJ: Thank you.
MR LEVET: Your Honour, the fear of persecution is not founded fairly and squarely on an apprehension of prosecution, albeit it is noted that certainly in Tasmania prior to Croome the activity was contrary to the Criminal Code of that State. Your Honours, the apprehension of persecution is to be found from the findings in the appeal book page 143, halfway down the page:
From this evidence it is clear that homosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh. To attempt to do so would mean to face problems ranging from being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police.
It is the contention of the appellants that those two findings of fact having being made, that is to say firstly, that they were members of a social group that is constituted by homosexuals in Bangladesh, and secondly, that it is not possible to live openly as a homosexual in Bangladesh with a range of adverse consequences being attracted by such open behaviour, including serious forms of harm such as being bashed by the police are - - -
GLEESON CJ: Including the possibility of imprisonment for life.
MR LEVET: Indeed, yes.
KIRBY J: But what is the social group that really applies to this case? Is it homosexuals generally as a class or is it a more refined group of homosexuals who are living in a committed relationship with each other? It may be important, as this Court has said in a number of cases, to define with some precision the social group that you are referring to and it presents a quandary to applicants, do they express it narrowly or do they express it broadly?
MR LEVET: Your Honour, it is a quandary. On the one hand there is a finding of fact in the Tribunal below that the appellants fall within a social group which is broadly defined as homosexuals.
GUMMOW J: You have to match the finding at 143 line 25 with page 156 line 40 and following. What do you say comes from reading those two portions together? Do you say there is some error that is revealed in the construction of the definition of that, with respect to the relevant class?
MR LEVET: Your Honour, in the second of those, that is at page 156, what is happening is an attempt to narrowly define homosexuals as being persons who have lived discreetly and who, it might be expected, will live discreetly. There is a suggestion that the subject of gossip and perhaps taunts of some neighbours who suspected that they were homosexuals - a suggestion that this does not constitute serious harm amounting to persecution under the definition. But that is not the finding that had earlier been made. The finding that had earlier been made was that were their identity to become known to the police that they would be subject to serious harm.
Your Honours, the basis on which they were disbelieved on a question of fact as to whether their identities were known was that firstly it was not believed that they would go to the police and report having been persecuted because the police would not protect them.
KIRBY J: Where is that finding?
MR LEVET: It is 156 approximately line 35:
From the evidence set out above it appears that homosexuals would probably be shunned by friends and family and perhaps even bashed by the police.
HAYNE J: I rather thought you were making the point at 155 lines 25 and following, but that is again unmistakable.
MR LEVET: I am indebted to your Honour.
KIRBY J: Which passage on 155?
HAYNE J: Page 155 at 25 and following.
MR LEVET: Yes, indeed, your Honour.
GLEESON CJ: If they had told the police, would section 377 of the Penal Code have been enforced against them?
MR LEVET: Your Honour, there is no evidence in the Tribunal below that it would. However - - -
GLEESON CJ: It is something of a mystery about that, Mr Levet, because one of your clients claimed to have raped a number of young men, but he said that all that happened to him was that he lost his job. I am puzzled about the element of law enforcement or lack of law enforcement that is in the background to this.
MR LEVET: Your Honour, the evidence, in my respectful submission, is simply that homosexuals in Bangladesh would be subject, were they to live openly and were they to force Bangladeshi society to confront their identity, that they would be subject to certain adverse consequences, these including the possibility that they would be bashed by the police. Now, it is inherent, in my respectful submission, in a finding that they might even be bashed by the police, that the police would not protect them were they to go to the police and complain of persecution on the basis of their sexual orientation.
In my respectful submission, one cannot revisit, as it were, the findings of fact. The two findings of fact that the appellants would rely on are firstly that they are homosexual and secondly that homosexuals living openly in Bangladesh would be subject to some degree of ostracism, including possible violence by the authorities. In my respectful submission, were there an apprehension that these appellants would, should they return to Bangladesh, be subject to such a degree of adverse consequences then, in my respectful submission, the Convention reasons are fully made out.
The issue appears to be, fairly and squarely, whether one can apply a narrower test and say, as have the courts below, that homosexuals who have lived discreetly in Bangladesh do not suffer these consequences but homosexuals who live discreetly will be, as it were, allowed to do so.
GLEESON CJ: But is one reason for the discretion the provisions of section 377 of the Penal Code?
MR LEVET: There is not a finding of the fact in the court below in relation to that. It may well be, but the finding of fact that they would not be permitted to live openly as homosexuals in Bangladesh to the extent that were they to confront society with their identity that they would be subject to a range of problems, including bashing by the police, that element of bashing by the police and lack of a police willingness to protect them against others who might do likewise, as a result of sexual orientation, in my respectful submission, amounts to a Convention ground which is fairly made out.
The issue is one of discretion. Discretion is not imposed as a test on refugee claimants who claim on other bases. For instance, I am not aware of any cases where it has successfully been applied other than at tribunal level in respect of claimants who claim persecution on the ground of religious relief or indeed persons who claim persecution on the ground of their political belief.
KIRBY J: Justice Madgwick had a case concerning Burma and political belief, but have there been cases of dealing with religious belief applicants?
MR LEVET: Not that I am aware of at the level of the Federal Court or above, your Honour, but if I could for a moment turn to that case of his Honour Justice Madgwick? My learned friends at page 12 of the respondent's primary submissions quote Win in general support of their proposition. I quote paragraphs [19] and [20] of it.
GLEESON CJ: Have you a reference to that, Mr Levet, please?
MR LEVET: It is page 12 of the submissions of the respondents.
KIRBY J: Put the citation on the record, please?
MR LEVET: I am sorry, your Honour. Win v Minister for Immigration and Multicultural Affairs [2001] FCA 132 at paragraphs 19 and 20.
GLEESON CJ: Thank you.
MR LEVET: Your Honours, if I could take you to paragraph 26 of that case and preface it by saying that Win was in fact a case which, whilst it dealt with political views, was ultimately decided in favour of the appellants. Paragraph 26, being the position of his Honour Justice Madgwick, said as follows:
In the present case the Tribunal accepted that free expression of political opinion was not tolerated by the Burmese government and that those actually undertaking such expression were subject to persecution.
Now, I would ask you compare that to the present case that "free expression" of a homosexual identity is not in fact tolerated by the Bangladeshi governmental society and that those actually undertaking such expression are subject to persecution which in this case the finding has been would include, or may include, bashing by the police. His Honour Justice Madgwick goes on to say:
It seems clear enough, from its reasons, that the Tribunal did not appreciate that, accordingly, it was required in these circumstances to consider whether, if they returned to Burma, the applicants would face persecution by the very denial to them of their right to free political expression. This failure, in my opinion, constitutes an error of law under s 476(1)(e) of the Act.
Your Honours, in my respectful submission - - -
KIRBY J: What is your answer to the proposition put for the respondent that this is not a way that you presented the case before the Tribunal? That is to say, that you did not contend that the persecution was occasioned by the suppression of their entitlement to live together openly, that that was not the way you presented the case. I think this is what the Full Court of the Federal Court said. What is your answer to that? Does it matter? Are there any factual elements or procedural fairness questions that arise if that is the way it was dealt with by the Tribunal, or are there further factual issues that would have been explored if you had been saying, "I don't just claim to have the well-founded fear because I'm a homosexual. I claim it because I am a homosexual living in a relationship with another homosexual and I am not able to do that openly in my own country and that itself is persecution"? Is that a matter that gives rise to further factual questions, or is that it?
MR LEVET: Your Honour, the issue of discretion so far as these appellants is concerned and the issue of a discretion requirement was not part of their original case before the Tribunal. Rather, it was part of the Tribunal's answer to their claim.
GLEESON CJ: But if they had put a claim of the kind that Justice Kirby was just mentioning, would it not have been necessary for the Tribunal to have a much closer look at the way law enforcement operates in Bangladesh, in particular in relation to section 377 of the Penal Code, which on its face looks like a very sensible reason for discretion?
MR LEVET: On its face section 377 of the Penal Code does appear to be a sensible reason for discretion but in addition - - -
KIRBY J: Well, in enforces it.
MR LEVET: It enforces it, yes, your Honour, but in addition to the requirements of section 377 of the Penal Code, there is the finding of fact that these appellants, were their identity to become known, would be subject to a range of adverse consequences which included the possibility of being bashed by the police.
GUMMOW J: But then you have to get subjective fear, have you not? Do you not then run into a credibility problem?
MR LEVET: In effect, to say that there must be a subjective fear - - -
GUMMOW J: That is what the cases say, is it not?
MR LEVET: That, in my respectful submission, is in fact the essence of the discretion test. You get into a circuitous situation where a person cannot have an actual fear unless they have been subjected to persecution and have lived their lives in such a manner as to attract the adverse attention of the authorities and society in general. A person who is more timorous and who has not confronted Bangladeshi society would, on the application of that test, never be able to say that he had a well-founded fear of persecution.
HAYNE J: I would understand the issue to be joined slightly differently, but importantly so. I understand your case in the Tribunal to have been, "I the applicant will be persecuted if I return and live as I wish". You say it is no answer to that claim to say, "Oh well, be discreet and you won't be", and you pray in aid the political, religious and other cases. This may be quite wrong, but the point against you is said to be that the Tribunal finds, "You will not be persecuted if you go back and live as you wish". That seems to me to be where the issue is joined.
MR LEVET: The Tribunal in effect finds as a matter of fact that the appellants have in the past been discreet and that there is no reason to suppose why in the future they would not be discreet. Indeed, if one takes into account - - -
GUMMOW J: That is page 156.
MR LEVET: Yes. Your Honour, I would take up the issue put forward by his Honour Justice Madgwick at paragraph 26 in Win where he says:
It seems clear enough, from its reasons, that the Tribunal did not appreciate that, accordingly, it was required in these circumstances to consider whether, if they returned to Burma, the applicants would face persecution by the very denial to them of their right to free political expression.
In other words, once the issue has been raised of persecution, or the prospect of persecution as a result of sexual orientation, it was incumbent upon the Tribunal to then make an examination on the issue of whether, if they were returned, the circumstances in which they would live in Burma would of itself - in this case Bangladesh - amount to persecution.
KIRBY J: Do I understand your case to be that there has grown up in the Australian Tribunal, as distinct from other overseas tribunals that deal with these cases and receiving countries, a doctrine which we will call the doctrine of discretion and that when a case comes before it, instead of looking to whether the person might have a well-founded fear because he or she cannot return to the country of nationality without facing the risk of persecution by living openly, that instead of approaching it on that basis in terms of human dignity, the Tribunal approaches all such cases of homosexual applicants through the prism of discretion and, therefore, does not exercise its discretion correctly but by reference to this supposed requirement or doctrine of discretion. Is that the way you put the case or not? I would like to understand.
MR LEVET: I am indebted. Yes, your Honour, that is the way the case is put. Further, in expansion of that, it is put on this basis, that in adopting, as it were, the prism of discretion what the Tribunal has done in the past is to focus on those persons of that sexual orientation within that country and to say, "Would that person, if they lived discreetly, have a well-founded fear of persecution?".
GLEESON CJ: Has anybody ever argued this case on the basis that having, and potentially enforcing, a law like section 377 of the Penal Code amounts to persecution? Has that ever been argued in this case?
MR LEVET: Not in this case, no, your Honour.
GLEESON CJ: Section 377 is just looming in the background there.
MR LEVET: Your Honour, it was argued in the court below, or before the Tribunal, that there had been a fatwa in relation to - - -
GLEESON CJ: That is a religious sanction, as I understand it.
MR LEVET: It is a sanction under sharia law, yes.
KIRBY J: But that was rejected, as I understand it.
MR LEVET: It was rejected as a finding of fact, yes.
GLEESON CJ: But you in one sense appear to be straining at a gnat and swallowing a camel if you are saying, "The police might be beastly to us", and there is this law that says they can put you in gaol for life.
MR LEVET: Yes. Your Honours, to some extent I am constrained by the findings of fact at first instance and I embrace, as it were, the first two findings of fact, that is to say, that they were members of a social group and that members of such social group, were their identities to become known to the authorities, would suffer certain types of adverse consequences which would amount to persecution in the Convention sense. What I say is that having made those two findings of fact it is then otiose to go and make further findings of fact as to whether these individual applicants had been subject to persecution.
KIRBY J: But what is being put to you, as I understand it, is that section 377 is a pretty good reason for enforcing discretion.
MR LEVET: Yes, I accept that, your Honour, wholly.
CALLINAN J: But you would have thought if any situation would have invited prosecution it was the rape of the young men which apparently became the matter of some knowledge to the employer.
MR LEVET: Your Honour, in my respectful submission, that falls outside the ambit of a claim for asylum on Convention grounds. What has been argued here and accepted by the Tribunal is that these two appellants form part of a social group, which such social group is subject to persecution, if I can collectively use that word, in the event that they forced the authorities to confront their identity.
CALLINAN J: I understand what the claim is but I do not know how it sits with the assertion by one of your clients of the rapes and the way in which it resulted only in a loss of a job and nothing more than that. It is a factual matter that seems to me raises a problem for you on any view of the occasion, or it may do.
McHUGH J: Must not your case be that the Tribunal never addressed the right question in the case? Your case is not a complaint about the existence of 377. If it was you might have some problems as to whether a criminal law which was non-discriminatory which prohibited anal sex with men, women and animals could constitute persecution, but at least one view of the case is that accepting that to be so, nevertheless it is persecution if you are homosexual and you are likely to be bashed by the police or you are likely to be harmed in some other way and, speaking for myself, this question of discretion just seems to me to be totally irrelevant.
If you are a homosexual and you want to confront the authorities, maybe by way of protest or otherwise, and you are at risk of being bashed or otherwise harmed, that may amount to the persecution but the Tribunal here does not seem to have made any finding at all as to whether or not there was a potential of being bashed by police. They say you are subjected to some forms of harm such as being subject to gossip or shunned by their families and that does not constitute persecution, but the Tribunal does not seem to have made any finding about the question of whether, if the applicants returned, they were likely to be subject to bashing.
GUMMOW J: Do you agree with that?
MR LEVET: I would agree, your Honour, that the Tribunal did not perhaps ask the right questions.
GLEESON CJ: Well, the Tribunal actually specifically disbelieved practically every single claim your clients made about nasty things that had happened to them, did it not? They claimed to have been stoned, they claimed to have been whipped, they made all sorts of allegations about specific forms of misbehaviour towards them and they were disbelieved.
MR LEVET: And, your Honour, it is significant that the basis upon which they were disbelieved is that the Tribunal said all these forms of harm happen to a person who confronts Bangladeshi society. The police would not support them, the police might even bash them; we do not believe that these things happen, we do not believe that the appellants complained to police because of the consequences that would ordinarily flow, of an adverse nature to them, making such a complaint.
GLEESON CJ: One of your clients was disbelieved when he said he had raped a number of young men, was he not?
MR LEVET: Yes.
GUMMOW J: But the question Justice McHugh was putting to you, with respect, is an essential question and it is directed to the framework of judicial review. Now, if it is not one, it is adverse to you really.
MR LEVET: No.
GUMMOW J: We have to get this case into the right framework for administrative review and the question is, did the Tribunal ask itself the right questions?
McHUGH J: See, at 156 at line 31 the Tribunal says:
From the evidence set out above it appears that homosexuals would probably be shunned by friends and family and perhaps even bashed by the police.
MR LEVET: Yes.
McHUGH J: Now, a question is surely, if these applicants returned and, for one reason or another it became known that they were homosexuals, is it likely that they would be subjected to bashing, was there a distinct possibility, and if so, does that amount to persecution? I would have thought it would, once you make the finding of fact or prediction.
MR LEVET: Your Honour, there is that finding on that page that it is not possible to live openly as a homosexual in Bangladesh.
McHUGH J: Yes, but then the next question is, something may happen to you, but what? If they are merely going to be prosecuted, that gets you under 377. That gets you into another area as to whether you can say a criminal law that is not arbitrary, but deals with men, women and animals, constitutes persecution. That is one thing, but to be subject to being bashed or stoned or something else is another issue.
MR LEVET: Indeed.
McHUGH J: And that may well constitute persecution; I would have thought it does, but the Tribunal did not ask itself that question.
MR LEVET: But it made that finding, your Honour.
McHUGH J: No, but it did not ask the question, did it? If they returned would they be likely to be bashed et cetera, et cetera, unless they - - -
GUMMOW J: If they did not ask the right question, they were in trouble. The Tribunal is in trouble, from the point of administrative review. You do not seem to want to grapple with that which assists you; you want to talk about discreet people all the time. If there is a more direct route I do not know why you do not want to take it.
MR LEVET: Your Honour, the Tribunal did not ask any questions in relation to what was likely to happen to them should they return, save and except it was implicit in the Tribunal's judgment that the Tribunal felt that they would continue to live discreetly.
McHUGH J: Assume they were peeping Toms. They said, "Well, we go back; not only are we punished under the law, but we are singled out for special treatment by police or gangs or bashed and whipped or stoned or something". Why would that constitute persecution and, likewise, with the applicants?
MR LEVET: Your Honour, for a person to be - - -
McHUGH J: I do not see what this question of discretion has to do with the case, to be quite frank.
MR LEVET: It has this to do with it, with respect, your Honour. There is a finding - - -
McHUGH J: I am not saying that against you; I was trying to help you. There seem to me to be two issues. Are they likely to be prosecuted under the laws of Bangladesh? If so, that raises one question. Are they likely to be subject to other forms of extra-curial punishment? That seems to me to raise a real question of persecution. Whether or not they want to be discreet just seems to me to be totally irrelevant, with great respect to anybody who is of a contrary view.
MR LEVET: Your Honour, the finding in the Tribunal is that if they lived openly as homosexuals in Bangladesh, they would be subject to a range of problems which your Honour would accept as amounting to persecution. That is:
being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police.
That is a finding of fact that that is what would happen to them.
McHUGH J: The fact that they are shunned by their families does not necessarily mean it is persecution. Even in our own society people who marry outside their religion are shunned by their families, people who marry people from other races are shunned by their families.
MR LEVET: Yes, but one hopes they are not bashed by the police.
McHUGH J: No, I know, but you get into a different territory once you start talking about being bashed by the police or stoned by mobs.
MR LEVET: Your Honour, there is a finding of fact before the Tribunal that, were they to attempt to live openly as homosexuals in Bangladesh, they would be subject to serious forms of harm including - - -
McHUGH J: Where is that finding?
MR LEVET: That is on page 143 of the appeal book starting at line 26:
From this evidence it is clear that homosexuality is not accepted or condoned by society in Bangladesh and it is not possible to live openly as a homosexual in Bangladesh. To attempt to do so would mean to face problems ranging from being disowned by one's family and shunned by friends and neighbours to more serious forms of harm, for example the possibility of being bashed by the police.
That is a finding of fact, your Honour.
HAYNE J: How does that fit in with what is said in the last paragraph on 156? Perhaps you say they are irreconcilable, but can we at least attempt to discover what you say about it?
MR LEVET: Certainly, your Honour. In relation to the comments on 156, there is an acknowledgment. If one follows the paragraph to which your Honour refers across to the top of page 157:
They clearly conducted themselves in a discreet manner - - -
HAYNE J: We are back to discretion. I understand that, but is there a tension, is there not a tension, between what is said at 143 and what appears from line 39 on 156? A possible reading of what appears at 156 is:
I accept that . . . they lived together in Bangladesh from 1994 . . . they were shunned by their families . . . They may also have been the subject of gossip and perhaps even some taunts . . . do not believe that this constitutes serious harm . . . do not believe . . . real chance -
will suffer more than has already happened if they go back. Is that to read that incorrectly?
MR LEVET: Yes, it is, with respect, your Honour, because that is subject to the clarification at the top of 157, that "They clearly conducted themselves in a discreet manner". As to discretion, I understand your Honour understands discretion, but that to some extent is the nub of the case in that if they behave in a discreet fashion, they are not going to get bashed by the police. The flipside of that coin is if they do not behave in a discreet fashion, they are going to be subject to serious forms of harm, including the possibility of being bashed by the police. That coin with its two flipsides imposes a requirement of discretion. To adopt the Anne Frank argument which was adopted far more eloquently than I can by his Honour Justice Madgwick, Anne Frank would not have had a reasonable apprehension of persecution or a well-founded fear of persecution 10 minutes before the Gestapo knocked her door down and took her off to a death camp and she would not have had so because hitherto she anticipated that she had been discreet and that she had not come to the attention of the authorities.
Were Anne Frank before this Court, it is unthinkable to think that she would be faced with the argument, "You have been discreet in your attic for the last three years. We have no reason to suspect that you would not continue to be so discreet were you to return to the country in which you claim to be persecuted by the Gestapo and on that basis we send you back." It is a discretion test that is required and it is only required of persons claiming asylum on the basis of sexual orientation.
KIRBY J: So, is your argument that you cannot avoid the issue of discretion because it is asking too much and that by failing to address it, despite its findings, the Tribunal fell into error because it did not, as it were, go on from the last paragraph, or the last sentence on page 157, to say, "But this obligation of discretion is to impose on the applicants the obligation of denying the truth of themselves and forcing them to pretend that they are other than they are, and that that is exposing them to persecution if they are obliged to do that."
MR LEVET: Indeed, your Honour, yes. In fact, the country material on which the Tribunal relied talked of some of the discreet homosexuals who did not suffer problems. Those included persons who married and pretended to live an overtly heterosexual life whilst having casual meetings in parks and it is pointed out that they were, as it were, tolerated and not persecuted by Bangladeshi society. Here we have a finding that these people could not live openly.
We have a finding, as it were, that they had been discreet and could continue to expect to be discreet. In my respectful submission, that is indeed imposing a test of discretion which the court was then obliged, in my respectful submission, to adopt the examination that was looked at by his Honour Justice Madgwick in paragraph 26 of Win, or the second half of paragraph 26.
McHUGH J: But against the background of 377 is not the question of discretion a red herring? Take the question of alcohol. In a number of societies the use of alcohol is prohibited by law but it is condoned in the home. So, people can drink at home. They are being discreet. Is that persecution because they have to drink at home? It would be a different thing if they said, "Well, if they drink in public they are likely to be stoned or bashed by the police", or something else happen to them. That is why I tend to see this question of discretion as an irrelevancy. Supposing these people wanted to go around in T-shirts saying, "I am gay", or, "I am a gay activist", or, "I am homosexual", would they likely to be bashed, then?
MR LEVET: The finding is that they would, yes, and that is the clear finding of the Tribunal, that were they to confront Bangladeshi society that is what would occur.
GLEESON CJ: Would they be prosecuted? Suppose they had on the T-shirt, "I contravened section 377", would they be prosecuted?
KIRBY J: Well, there was no finding on that.
McHUGH J: They might be. Your point could be, it is one thing to be prosecuted according to law and it is another thing to be bashed or stoned or whatever you - that is the persecution.
MR LEVET: Indeed, your Honour, yes.
KIRBY J: Stoning was found against you, was it not?
MR LEVET: Yes.
McHUGH J: Yes, but bashing - - -
KIRBY J: And bashing seems to have been found as a possibility.
MR LEVET: Yes. Your Honours, if one looks at the cases involving other claimants for refugee status, there are no cases of which I am aware say in relation to political activism or holding political grounds where it has ever been suggested by an Australian court above the Tribunal level that an appellant should refrain from exercising his political beliefs, from making those beliefs known or from, as it were, participating in the political life of the country in which he says he is persecuted. Likewise, there are no cases of which I am aware where an Australian court at above the Tribunal level has imposed a like requirement in respect of an applicant on religious grounds.
A court would not, in my respectful submission, say of a person it is all very well for you to be a Callithumpian in the privacy of your own house, you have been discreet about it before because you have obviously not been bashed by police and we anticipate that you would continue to be discreet in the future. The example that your Honour gives in relation the alcohol is, in my respectful submission, not necessarily an appropriate analogy. To not partake of alcohol is not a denial of a person's identity.
KIRBY J: It might be in some cases, but not everybody. What you are saying is it is not as deep in your imprint as your sexual orientation.
MR LEVET: Yes, indeed.
KIRBY J: Similarly, one might say with religious beliefs and political beliefs, they are not as deep in your imprint as your sexual orientation.
MR LEVET: Indeed, your Honour, yes. If I can take your Honours to the respondent's submissions, paragraph 33 on page 11, the respondents talk about the depth to which a person holds belief and they talk about a devotee of a particular religion. In some instances if a person had significantly embraced that religion, to be unable to attend the religious service might have a:
serious impact on a devout and otherwise active member of that religion. The same denial may be of little or no consequence to another member of the same religion whose faith is nominal or who choose for whatever reason not to attend a religious service in any event.
Your Honours, it is significant that that submission put forward by the respondent is not supported by a case.
There is no case of which I am aware that makes that point in respect of religious observance. There is no case, save and except, as I understand it, at the Tribunal level, relating to that. There are a number relating, as I understand it, at the Tribunal level to Falun Gong where an examination is made of the extent to which they embrace that particular practice but there is no case of which I am aware, certainly not at an appellate level, where a court has, in effect, said that a denial may be of no consequence to you because your faith is merely nominal.
Your Honours, the cases where, as it were, a discretion test is imposed - are imposed on a very widespread basis in cases of sexual orientation, it is not difficult to find examples of that occurring.
GUMMOW J: I know, but we do not have to rummage around in the Tribunal decisions. Is there any decision you can point to using this discretion notion? Just like Justice McHugh, I think it is a bit of a furphy at the moment. Is there any case in which this discretion notion is related to the terms of the Convention definition?
MR LEVET: Not specifically that I am aware of, no, your Honour.
GUMMOW J: That is the problem. People will not construe the definition. They would much rather construe something connected to it by an attenuated method of reasoning. It seems to me if you face the Convention definition, you will - or the necessary ground - - -
MR LEVET: Your Honour, the Convention - - -
GUMMOW J: Is there any Tribunal case or any other case using this discretion idea that relates to this notion of well-founded fear? That is what it has to be related to, does it not? It has to be related to the words "well-founded" or "fear", I do not know, if it is to have any legs. I can see why in the Federal Court you were somewhat hamstrung by this notion of discretion but once you are here you are not. It is a bit of a straw man I suspect that has been used against persons in your clients' position.
MR LEVET: Your Honour, there are a number of Tribunal cases. If I can take your Honour to the appellants' submissions paragraph 13 in the first instance.
GUMMOW J: Is there any in the Federal Court, maybe on appeal?. Justice Hayne refers to LSLS v MIMA [2000] FCA 211. It is referred to in footnote 34 in the article in the Sydney Law Review which we have been supplied with.
MR LEVET: Yes, your Honour, I have that, thank you. Your Honour, page 7 of that, that is paragraph [26].
KIRBY J: What are we looking at now?
MR LEVET: LSLS, your Honour.
HAYNE J: I do not think we have it on our list. I do not think we have the text in front of us.
KIRBY J: Could you put it on the record please so that we have it on our transcript.
MR LEVET: Yes, your Honour. Your Honour, the appropriate quotes in that case are firstly paragraph [22], which says:
Those passages, by their use of expressions like "parade" and "flaunt" indicate that the Tribunal regarded the asserted right of "proclamation", which it declined to recognise, as embracing more gratuitous and indiscriminate forms of disclosure than those necessary to identify prospective partners in consensual sexual activities. The applicant relied only on the latter forms of disclosure by contending that persecution would follow any but the most secretive, furtive expression of his sexual orientation.
Further, at paragraph 26 - and this, your Honours, is applicable to the discretion requirement:
The more reasonable question is whether the applicant, as a homosexual, may live a reasonably normal life in Sri Lanka without having to abandon any of his fundamental human rights. In answering this question, it is proper to take into account the attitudes of others and of society in general in order to determine what kind of lifestyle it is open to him to lead.
Having regard to the above information, I think the reasonable conclusion must be that a homosexual man in Sri Lanka is able to practise his sexuality safely, provided that he is discreet.
HAYNE J: Now, this seems to involve, does it not, an inversion, an inversion of argument starting from a paradigm described as, what was it, sufficiently normal life, some such expression, and then comparing it with that? Does this not come back to the point which Justice McHugh was asking you about: is not the question, can this applicant go back to the country of origin and there live the life that he or she wishes to lead without there being a well-founded fear of persecution for a Convention reason on account of the way this applicant would choose to live his or her life, rather than start from a paradigm and argue down from that?
As I say, the point that seems to be made against you is at the level of saying, these applicants, if they go back and lead the life they choose to lead in the fashion they choose, will not be subject to persecution. Now, that may be a good answer, it may be a bad answer, but is this not the realm for debate?
MR LEVET: It is certainly, your Honour, a question that the Tribunal should have asked, having made the findings that it did.
McHUGH J: Well, it is just about the most fundamental question it should have asked, is it not?
MR LEVET: Yes.
McHUGH J: But the clearest statement of the Full Court's position on this appears in a more recent case. It is WABR v The Minister for Immigration [2002] FCAFC at 124. In paragraph 25 the Full Court said in the joint judgment:
If, as is the case of Iran, homosexuality is a criminal offence, but if, as a finding of fact, the Tribunal is satisfied that the authorities do not actively pursue offenders, the Tribunal is within its rights in expecting that potential offenders would act with discretion and that they would refrain from publicising their sexuality.
So that seems to be the Full Court's position on this matter, that:
the Tribunal is within its rights in expecting that potential offenders would act with discretion - - -
MR LEVET: Yes, your Honour, that is paragraph 23.
McHUGH J: Paragraph 23, is it? It is 25 in mine.
MR LEVET: Sorry.
McHUGH J: This is WABR.
MR LEVET: Yes, your Honour. Your Honour is quite correct, that is paragraph 25.
GLEESON CJ: There is an ambiguity in that word "expecting", is there not? Does it mean predicting or imposing an obligation? If I say to somebody, "I expect you to behave in a certain way", it could mean different things. If I say that to a child, it could mean, "I require you to behave in a certain way". If I say that to an adult, it could mean, "I am making a prediction that this is what you are going to do".
MR LEVET: Yes, your Honour. Indeed, the way it is used, in my respectful submission, in effect imposes the requirement. It is not simply a prediction.
GLEESON CJ: In what paragraph?
MR LEVET: That is in paragraph 25, second last line:
the Tribunal is within its rights in expecting that potential offenders would act with discretion and that they would refrain from publicising their sexuality.
GUMMOW J: The Tribunal does not have any rights at all. It has an obligation.
McHUGH J: Paragraph 27 rather makes it clear the Full Court was talking in terms of obligation. The last sentence says:
It was also open to the Tribunal to conclude that it was reasonable to expect that the appellant would accept the constraints that were a consequence of the exercise of that discretion.
MR LEVET: Indeed. Thank you, your Honour. Further, your Honour, at paragraph 23 the court says:
The applicant in Applicant LSLS claimed that the Tribunal had been in error because, as he contended, a characteristic which identified his membership of a particular social group included a right to public proclamation of his homosexuality for the purpose of meeting prospective sexual partners; consequently it was wrong - and an error of law - to impose on him "a degree of discretion".
McHUGH J: But the test that is posed there by the Tribunal:
Public manifestation of homosexuality is not an essential part of being homosexual -
but it does not really answer the question. That is not the question. The question is, "What is likely to happen to you if there is a public manifestation of your homosexuality?" Now, it is one thing if you are prosecuted, according to law. It raises other issues. It is another thing if you are likely to be stoned or bashed or something else may happen to you.
MR LEVET: Your Honour, the Tribunal should have embarked upon a further examination, having made the findings that it did, but the finding it has made is, whilst it is silent on the criminal aspects, it has made a finding that there are more serious forms of harm, including the possibility of being bashed by police if one lives openly as a homosexual. Here we have a case of persons who certainly are living together. There is a finding that that is the case. They have certainly now passed the age where societal norms in Bangladesh would have expected them to marry so one can presume that there is an increasing likelihood, as it were, of detection, even in a discreet setting.
GLEESON CJ: Mr Levet, was the decision in WABR an appeal from Justice Finn's decision in Nezhadian? I know it was an appeal from Justice Finn but I cannot work out whether it is the same case.
MR LEVET: I am instructed yes, it was, your Honour.
GLEESON CJ: Could I direct your attention to paragraph 10 of Justice Finn's reasoning in Nezhadian, [2001] FCA 1415 in that case, and could I invite you to indicate where, if at all, it involves error? He seems to adopt the "red herring" theory of discretion. Paragraph 10.
GUMMOW J: Paragraph 10.
MR LEVET: Thank you, your Honour.
GLEESON CJ: He, I think, more accurately, describes it as a distraction. What is wrong with what Justice Finn said and why did the decision of the Full Court in the present case involve any more than an application of that approach?
GUMMOW J: You have to read paragraph 11 of Justice Finn too.
KIRBY J: Is the answer that taking minor precautions does not aptly describe not living with a person of your own sexual orientation whom you choose to live with in fulfilment of your human personality, that that is not a minor precaution?
MR LEVET: Indeed, your Honour.
KIRBY J: That that is a major precaution, a major deprivation from human dignity? At least that would be one view.
MR LEVET: Yes.
GLEESON CJ: Whether the reasoning of Justice Finn on the point is right or wrong, does it reflect the approach that the Full Court adopted to the matter of discretion in the present case?
MR LEVET: Certainly at paragraph 11 where it is said:
It was accepted that there was a need to show "discretion" and that this resulted in the imposition of limits upon his behaviour.
GUMMOW J: You have to read 12 too.
McHUGH J: In fact this might have been a very difficult case to run, because there does not seem to be any suggestion that there was any extra-curial sanctions. The applicant's complaint seems to have been about the law, which itself might have raised real problems. There does not seem to be any suggestion in the judgment that he was likely to be bashed. In fact there are statements about a level of tolerance of homosexual activity in Iran.
KIRBY J: It is tolerance if you make the non-minor precautions.
MR LEVET: Yes. Your Honour, there is a - - -
McHUGH J: I think there is tolerance in the sense that you might be prosecuted if you were not discreet but nothing else would happen to you.
MR LEVET: In other words, the pre-Croome Tasmanian situation.
McHUGH J: Yes.
MR LEVET: Your Honour, the finding of fact here is something that goes far beyond that.
McHUGH J: Yes, that is what I was putting to you.
GLEESON CJ: We now know, do we not, from this report what the Full Court was talking about in WABR when they referred to "expectation" and in what sense they were using it? It is obvious from the quotation from the Tribunal which appears on page 3 of the decision in Nezhadian where the Tribunal said seven-tenths of the way down the page:
having regard to all the circumstances I expect that the applicant would continue to be discreet in his homosexual relationships and behaviour, to the same extent that he has been discreet in the past.
Plainly it was using "expectation" in the sense of "prediction", not an unreasonable prediction having regard to the fact that flogging was part of the sanction for contravention of the law and the death penalty could be imposed.
MR LEVET: Indeed, and were you to adopt that test here, the sanctions include the more serious forms of harm, including bashings by the police, so there is an expectation in that sense, the word that because of the serious forms of harm that can befall you that you would be discreet because to be otherwise would be to invite the harm. In other words, you are saying to Anne Frank, "Stay in your attic".
GLEESON CJ: But when the Full Court in WABR in paragraph 25 said that the Tribunal was within its rights in expecting something, it was referring to the expectation expressed by the Tribunal that is quoted in paragraph 4 of the judgment of Justice Finn in Nezhadian, is that right?
MR LEVET: In paragraph 4 he is referring to the need to be discreet in relation to sexual relationships generally in Iran.
GLEESON CJ: In paragraph 4 of Justice Finn's judgment on page 3, seven-tenths of the way down the page, he quotes from the Tribunal saying that the Tribunal expected something, in the sentence beginning with the words "Having regard", do you see that?
MR LEVET: Yes, your Honour, I see that.
GLEESON CJ: Is that the expectation to which reference was being made in the Full Court on appeal from the decision of Justice Finn in paragraph 25?
MR LEVET: I would anticipate that that is probable, your Honour.
KIRBY J: In a sense it is a self-fulfilling prophecy, is it not, because if you say "I expect he will be discreet when he returns to Bangladesh or Iran or to other countries where they are liable to criminal and social and religious sanctions", you are saying both what you expect and what by your decision you oblige the person to conform to it, namely to continue a life of pretending to be somebody other than he is.
MR LEVET: Indeed, yes, your Honour. I mean, the corollary is that if the person is returned he will be discreet or he will suffer the types of harm that the finding in the court below has indicated would occur. In other words, you are saying to Anne Frank "Stay in your attic. I expect that you will do so. We'll send you back to occupied Europe. I expect that you won't go outside into the street. I expect that you'll continue to be discreet because to do otherwise would be to invite death and if you are so discreet there's no reason to suspect that you would incur any of these things."
Your Honours, unless I can assist you further.
GLEESON CJ: Thank you, Mr Levet. Yes, Mr Gageler.
MR GAGELER: If your Honours will permit me to indulge in some elementary propositions, I will get to the point very quickly. At page 161 line 11 of the appeal book, your Honours will see the Convention definition which your Honours have had to grapple with on many occasions. It is a definition which, as your Honour Justice Gummow pointed out in Applicant A 190 CLR 278, reflects in a broad sense a humanitarian concern with displaced persons and it is a definition which, as your Honour Justice Kirby pointed out in Ibraham 204 CLR 69, must be construed according to its language, that language falling short of affording protection to every victim of discrimination or abuse of human rights.
The definition begins and ends with a person, an individual, who is outside his or her country of nationality and is unwilling to return. To fall within the definition, the unwillingness to return of that individual must be based upon a fear that is both subjectively held and objectively well-founded. The fear is of that person, that individual, being persecuted for a Convention reason, membership of a particular social group being one of the five recognised Convention reasons.
Now, leaving entirely to one side any question of well-foundedness, which has generally occupied the attention of the Court in the past, it is necessary in applying the definition to look to the particular individual and to ask a number of very basic questions. Does this individual have a fear? If so, what is it that the individual fears? Does the thing feared amount to persecution within the meaning of the Convention? If so, is that feared persecution for a Convention reason, relevantly membership of a particular social group?
Now, if one takes the basic facts in the present case, stated most favourably to the appellants, they are these: one, the appellants are Bangladeshi homosexual males; two, there is a particular social group of Bangladeshi homosexual males; and three, members of that particular social group face physical harm if they are not discreet. Now, the critical question - - -
KIRBY J: That is not the only way in which you could define their social group.
MR GAGELER: I will leave that to one side. That is the way they seek to define their social group, and have always sought to define their social group. I will come back to that, your Honour. The critical question, if one accepts that basic factual scenario, is what is it, if anything, that the appellants fear? Do they fear physical harm or do they fear being forced to be discreet so as to avoid physical harm?
Now, if they fear physical harm or if they say they fear physical harm, then accepting the physical harm to rise to the level of persecution, the question in assessing whether that fear of persecution is well-founded becomes one of assessing the likelihood of them not being discreet. Have they been discreet in the past? Has anything changed? Are they likely, or unlikely, with what degree of probability or possibility, to be discreet in the future?
If, on the other hand, what they fear, or what they say they fear, is being required to be discreet so as to avoid physical harm, then the question becomes whether being required to be discreet, that is being denied the freedom to publicly express a sexual preference, amounts to persecution. Now, that, in our submission, is a question that simply does not arise in this case. It does not arise because the appellants only ever claimed to fear physical harm. That is the way they put their evidence. Your Honours will see it most clearly - - -
GUMMOW J: What would you say if it did arise, as a question of construction?
MR GAGELER: If it did arise, your Honour, I have quite a lot to say, but can I say it in a structured way in a moment.
McHUGH J: Can I take you up on what you have just said, because it seems to me you turn the applicants' case on its head. Their case is they fear on return an apprehension of violence unless they act discreetly.
MR GAGELER: Your Honour, leave out for a moment the "unless they act discreetly".
McHUGH J: I do not know that you can. You want to.
MR GAGELER: I want to because they did. That is the way they put their case. What they said was they feared physical harm and that is the only case they ever made to the Tribunal.
KIRBY J: But the only way they could avoid physical harm is by pretending to be something other than they are.
MR GAGELER: Yes. Then the question would become, your Honour, whether - - -
KIRBY J: It does not take too much encouragement if there is section 377 or stoning or other punishments hovering in the background.
MR GAGELER: Can I deal with the section 377 point, your Honour? There is evidence about section 377 at page 113 to 114, that is the evidence of a lawyer of not being aware of any prosecutions. There is further evidence to that effect at page - - -
KIRBY J: But the fact that there are no prosecutions under such provisions does not mean that they are not used to impose oppression on people. That was the same in Australia before those laws were amended.
McHUGH J: I mean, why would not Mr Croome be persecuted if in Tasmania, notwithstanding the policy of non-enforcement of the Criminal Code, people such as he were bashed on a regular basis and the police did nothing about it?
MR GAGELER: If what he feared was physical harm then I would accept that it could well amount to persecution within the meaning of the Convention.
GLEESON CJ: What if what he feared was blackmail?
MR GAGELER: Blackmail in circumstances where there was no State action to prevent that, yes, that could amount to persecution as well, but being forced to live a lifestyle so as to avoid that, that may or may not amount to persecution, depending on the circumstances, and that is the question to which I will come.
KIRBY J: Would you humour me by defining "lifestyle". It is often used in this area. Lifestyle, to me, conjures up ideas of reading motor car magazines or going on trips to Norfolk Island. It does not seem to be an apt description for the expression of one's sexual orientation.
MR GAGELER: Your Honour, I apologise for the terminology. I was attempting to speak generically.
GUMMOW J: You have been reading the Sunday supplements.
MR GAGELER: The glossy insert.
GUMMOW J: Yes.
MR GAGELER: No, your Honour, I did not mean anything by the word.
KIRBY J: It is commonly used, Mr Gageler.
MR GAGELER: I apologise, your Honour. I meant no offence. Your Honour, can I go back to where I was and deal with that and then move on to your Honour Justice Gummow's larger question, that is, what was the case that these applicants put and was it dealt with in terms of the Convention. The case they put, very squarely, is that they feared physical harm. They feared, they put it very, very highly, being killed. They feared the bashings, et cetera. That was most clearly put by them in the appeal book, page 31 line 29. Your Honours need not look at it. At page 70 - - -
CALLINAN J: They feared a fatwa.
MR GAGELER: They feared the fatwa, yes. That is what you will see there at page 70 line 29, almost identical terms, statements from each of the present appellants. That was the way the Tribunal clearly enough understood their case and stated it at line 35 on page 153. That was the case they brought and that was the case that the Tribunal dealt with. The answer given by the Tribunal to that case of fear of physical harm, in our submission, was a good one. When I say a good one, a good one, in principle.
What the Tribunal said was that you will only face harm if you are not discreet. You have been discreet in the past; there is no reason to expect that you will not be discreet in the future. Therefore there is no risk to you of physical harm. In our submission, that is an entirely correct analysis, correct in terms of the Convention test.
KIRBY J: That is to impose on them a life-long obligation to pretend to be something other than they are. They are complaining that that is persecution.
MR GAGELER: No. Your Honour, it is predict what they will do in the future - - -
KIRBY J: It is predict it, because if they do not conform to this they will be the subject of criminal, social and religious sanctions in that society.
MR GAGELER: Then, your Honour, the question could become - I accept it could become - whether they were required to be discreet so as to avoid that potential harm, that is, whether they were forced to be so discreet and whether being forced to be so discreet - - -
KIRBY J: It is a pretty good reason for being discreet. If you are going to have physical, social, religious and family harm, it is a very good reason to be discreet, and that is what they say has given them the well-founded fear of persecution if they return.
McHUGH J: And it seems to turn the whole objects of the Convention on its head. It is like saying to a German Jew who came to Australia in 1938, "You are not a refugee. Go back. You have hidden your Jewishness from the Nazi authorities and as long as you continue to hide it, you will be safe". It is just ridiculous.
KIRBY J: What is your answer to that analogy?
MR GAGELER: Well, to that particular proposition, can I give an answer perhaps - - -
KIRBY J: What is the Minister's answer to that analogy?
MR GAGELER: There is that precise analogy in the decision of the House of Lords in Shah [1999] UKHL 20; [1999] 2 AC 629. Could I take your Honours to it.
GUMMOW J: Page?
MR GAGELER: Page 653G. This is in the judgment of Lord Hoffmann, which your Honours have looked at in other contexts.
GUMMOW J: Yes, we have looked at this before.
MR GAGELER: Yes, you did.
GUMMOW J: I did not think his Lordship was too good on German history in the 1930s.
MR GAGELER: Well, he may well not have been and your Honours might not find this a terribly attractive answer to Justice McHugh's question, but it is an answer to that analogy. Just after G, two lines down:
There is discrimination against Jews in general, but not all Jews are persecuted. Those who conform to the discriminatory laws, wear yellow stars out of doors and so forth can go about their ordinary business. But those who contravene the racial laws are persecuted. Are they being persecuted on grounds of race? In my opinion, they plainly are.
Now, his Lordship was really saying something - - -
KIRBY J: I think his Lordship is being ironic here in suggesting that to say of such a person that they are not being persecuted is self-evidently wrong.
MR GAGELER: No, your Honour, he is not, because the next sentence is:
It is therefore a fallacy to say that because not all members of a class are being persecuted, it follows that persecution of a few cannot be on grounds of membership of that class.
What his Lordship is saying is - and leave aside whether his view of history is right or not - that within the class of Jews conforming Jews may not be persecuted, they may not face that physical harm, but non-conforming Jews will face the physical harm.
KIRBY J: But counsel for the applicant has sought to draw an analogy between Anne Frank in her attic and these applicants in their closet. What is your answer? What is the Minister's answer?
MR GAGELER: What Anne Frank would fear is either of two things: one is being killed if she comes out of the attic or of being cloistered in the attic potentially for the rest of her life. They are related but different things.
KIRBY J: How are they different?
MR GAGELER: Being forced to live in the attic so as to avoid physical harm, we would accept without question constitutes persecution.
McHUGH J: But on your argument, she would not be persecuted if the Tribunal found she could come out, but as long as she hid her Jewish background from the Nazi authorities she has no well-founded fear of persecution. The fear is that you will be harmed if they discover your Jewishness or, in this particular case, if they discover you were a homosexual.
MR GAGELER: Then the question becomes: what is the chance of discovering the homosexuality?
McHUGH J: Exactly.
MR GAGELER: What is the chance of being found out? If there is a real chance of being found out and, if found out, facing physical harm, no question - persecution within the meaning of the Convention. We do not deny those basic propositions, your Honour, but what Lord Hoffmann was there saying in a rather extreme case is also reflected in a document which Amnesty International has provided to the Court. I think it is in volume 2 tab 24.
KIRBY J: You might give Mr Burnside a chance to explain this document in due course. By opening up the Amnesty folder, your opposition to their speaking can hardly be pressed.
MR GAGELER: If he confines himself to an explanation of paragraph 17 to which I will take your Honours, I probably will not object.
CALLINAN J: Mr Gageler, what Lord Hoffmann said is in one respect plainly right, is it not? Being discreet may be entirely different from pretending that you are something that you are not. There may be a world of difference between merely being discreet and living a lie, as it were. They are quite different concepts.
MR GAGELER: Absolutely, your Honour. When I come to that part of my argument, that is the question of principle, is it possible that being discreet in an individual case will rise to the level of persecution, my answer is yes.
CALLINAN J: There may be lots of people who have lots to be discreet about in their sexual behaviour.
MR GAGELER: Yes.
KIRBY J: Yes, but to deny all elements of your sexual being is a pretty big ask. We recognise that in Australia. It seems they do not recognise that yet in Bangladesh.
MR GAGELER: It is a pretty big ask and in an individual case, your Honour, I do not deny that it may rise to the level of persecution. What persecution requires in this context - and I will come to this in due course and I will rely on a particular passage in the judgment of Justice McHugh in Ibrahim - is that the harm to the individual is of such a serious nature that it is intolerable. That is a question of fact and degree that your Honours will see applied in a very relevant context - that is in the UNHCR's gender-related persecution guidelines - the similar notion to that which is stated in Lord Hoffmann's judgment. That is that there may be some members of a particular social group who are not at risk of persecution because they hide their shared characteristic.
GLEESON CJ: I am sorry, what paragraph are you referring to?
MR GAGELER: Paragraph 17. So that I do not need to come back to this document and so I can perhaps confine the ambit of any renewed application for intervention by Mr Burnside, I draw your Honours' attention also to paragraphs - - -
GUMMOW J: How does this help you? I do not understand. The argument with which Lord Hoffmann was dealing, how does that help you - which provoked these remarks at 653?
MR GAGELER: I think I was responding directly to a question by Justice McHugh who analogised the situation of a Jew who was required to conform so as to avoid physical harm, would not the conforming Jew necessarily be a persecuted person? My answer was "No".
GUMMOW J: Yes, but the argument Lord Hoffmann was dealing with is at 653H. It was an argument that because not all members of the class are being persecuted, none are.
MR GAGELER: That is the argument he was dealing with but the way in which he answers it was by demonstrating that in the class of Jews - - -
GUMMOW J: Just stopping there for a minute, that is not an argument on the table here.
MR GAGELER: No, I accept that, your Honour, he was responding to an argument - - -
GUMMOW J: That is what they talking about in item 17, the Amnesty document.
MR GAGELER: Absolutely. Your Honour, I know that and I accept that.
GUMMOW J: Why are you tormenting us with it?
MR GAGELER: Your Honour, I am trying to help you.
HAYNE J: But you are from the government.
MR GAGELER: What I am seeking to show is at least an assumption both on the part of Lord Hoffmann and on the part of the UNHCR that there will be possibly some members of a persecuted group who are not themselves subject to persecution because they do not display their shared characteristic which may well result in physical harm. I want to draw your Honours' attention also to paragraph 7 - - -
KIRBY J: It sounds awfully like the attic to me. I just cannot get out the image of Anne Frank's attic, which I visit every time I am in Amsterdam.
MR GAGELER: Yes. Your Honour, that is an extreme image - - -
KIRBY J: It stands as a warning and explains this Convention.
MR GAGELER: Absolutely, your Honour, and I do not deny that but the extreme image is of a little girl being forced to live cloistered in an attic. Does that constitute persecution? Unquestionably.
KIRBY J: It was not only a little girl, it was her parents and two friends; it was a group.
MR GAGELER: Absolutely. I fully embrace the concept that the life that she was forced to lead was a life of persecution, but the question becomes very different when one moves from the attic to the little bungalow or to some other less extreme form of limit of freedom and that is really the point that I wanted to come to in answer to Justice Gummow's more general question.
McHUGH J: But your argument must come to this, must it not, that if you are a member of a persecuted class but you can avoid harm by disguising your membership of that class, then you are not persecuted for the purposes of the Convention.
MR GAGELER: My argument on the facts of this case, if we were to get to it, does not need to rise that highly.
McHUGH J: But that is the argument, is it not, whether it be religion, politics? The person with political opinions can avoid persecution by not saying anything, by keeping silent. That is why you invoke Lord Hoffmann. You say the fact that a certain class is persecuted does not mean that every member of it is persecuted if that person avoids some characteristics of the class or disguises himself or herself in some way. That does not seem to me really - - -
MR GAGELER: Or it avoids engaging in a type of behaviour in this case which confronts the society in which he or she lives with a question of sexuality that is preferred to be left behind closed doors. The evidence here, as accepted by the Tribunal and as explained by Justice Lindgren at first instance, is that the nature of Bangladeshi society was that homosexual relationships were tolerated provided that nothing was done that would confront that society with its preference for keeping these things behind closed doors. If that occurred, then there was a risk of physical harm.
GUMMOW J: A lot would depend upon socioeconomic circumstances too, surely.
MR GAGELER: Absolutely, but most critically - - -
GUMMOW J: What is happening in a village in the backblocks of Bangladesh is one thing; what is happening in Dacca might be another.
MR GAGELER: And that, your Honour, is the reason why once one gets to that point one would need to focus very, very carefully on the particular circumstances of the particular individuals, as those paragraphs of the UNHCR guidelines suggest and as the cases to which I will take your Honours suggest.
Here the evidence was that apart from acts of physical violence that the Tribunal did not believe occurred, these men were happy living together. Indeed, the evidence was that they were very happy living together. So the question did not arise on the way in which the case was presented to the Tribunal. The Tribunal, on the case presented to it, adopted a perfectly appropriate and correct analysis.
McHUGH J: Is not the difficulty with this argument in which you seek to distinguish between the class and members of the class that the Convention definition does not seek to make that distinction? It speaks about a well-founded fear of being persecuted for reasons of membership of a particular class.
MR GAGELER: Can I put it this way, your Honour? To go down that path would be to adopt the error that is exposed in Shah, to which I have taken your Honours. That was the argument put and rejected in Shah and it was rejected for very good reason, because what one is looking at in the Convention definition is the position of an individual. The question is whether that individual will face persecution - has a real risk of facing persecution, for a reason. One has to look at the individual and the reason that individual may or may not face persecution.
The point is that the individual may be a membership of a persecuted class, but the individual, for various reasons - and I took your Honours to one example, but there are other groups in Nazi Germany who were homosexuals. I am sorry, I will start that again. Homosexuals as a group in Nazi Germany were persecuted. There is no doubt. They faced physical harm. But there were many individuals, including within the persecuting class, who were homosexuals who did not face that persecution. That is an example given by one of the other law Lords in Shah. So no, your Honour, I do not accept that proposition.
McHUGH J: It seems to me - take the Russian kulaks. Somebody flees Russia in 1918. If you had the Convention in force, could you say to that person, "You've managed to hide from the authorities what you were. Go back and continue to hide. Sure, if they find out, you will be dead but I don't think there is much chance they'll find out".
MR GAGELER: Your Honour, obviously if what is feared is the harm, what is really feared is being killed if found out. Then weighing, as one must, the magnitude of the harm against the risk of detection one could pretty readily come up with an answer that that degree of risk of being detected, given the magnitude of the harm, would itself amount to a well-founded fear of persecution; but really that is a different case.
If one were to get to the question of whether being required to be discreet, that is whether being denied freedom to express one's sexual preference amounts to persecution, then our answer is that we have given in our supplementary submissions responding to Amnesty International, paragraphs 17 to 21 and the answer in a nutshell, and I will expand it, is possibly, but it all depends on the degree of harm to the individual.
McHUGH J: Can I ask you one more question and then I will keep quiet for a while? If these applicants had said, having tasted freedom in Australia, "We want to go back and we want to live openly. We want to show people what our relationship is." Now, what would your case be then? What would your answer be then?
MR GAGELER: There would be an inquiry that the Tribunal would need to pursue that the Tribunal did not need to pursue here, and the inquiry in that case would be along these lines. One, you say that to me now, is it however realistic to think that that is your true intention or expectation, given the way you have behaved in the past? Two, if so, and accepting that the nature of society is such that you will not be able to fulfil your preference or expectation, does the limitation that places upon your freedom constitute persecution?
GLEESON CJ: But is not a question like that a question that, if you assume it is not entirely unrealistic, brings you immediately up against the issue that nobody has addressed in this case, which is, would the society enforce section 377 of the Penal Code and does having such a law and enforcing it amount to persecution, because a question of the kind posed by Justice McHugh would be an announcement of an intention to confront the Penal Code.
MR GAGELER: Your Honour, so far as the Penal Code is concerned, the evidence - and there is quite a deal of evidence about it in the appeal book - is that although it was there, it was a relic of British times and - - -
GLEESON CJ: Yes, but what would happen to it if somebody decided to get into the face of the law enforcement authorities?
KIRBY J: That is what Mr Croome did in Tasmania.
MR GAGELER: Well, that was just never explored and issues like this have been explored, but I am told by Mr Lloyd, who does very many of these sorts of cases, that it has only been really explored at the Tribunal level and at the Tribunal level the question has been whether there is, on the facts, a real risk of the penal law being invoked. That is, one has to be realistic about assessing whether or not authorities would invoke the penal law, and that is a factual question that turns very much on country information. It was a factual question never raised here and all of the evidence pointed to this law being on the books but never invoked.
CALLINAN J: Mr Gageler, I was interested in the answer to the second part of the Chief Justice's question though - and I know what you say about there not having been a confrontation of these questions - what is the effect of the existence of such a law?
MR GAGELER: The effect of the existence of such a law cannot be, per se, persecution.
CALLINAN J: Is there some authority for - do not worry about it now, but I would like some references to that.
MR GAGELER: If I could give your Honours some references in due course, yes. It has been touched upon in a number of cases in this Court.
CALLINAN J: Yes, thank you.
McHUGH J: In Croome's Case, or it was Toonen, I think, when it was before the Human Rights Committee, the Tasmanian law was said to infringe the Convention of Civil and Political Rights on the basis that it was arbitrary, I think, is my recollection.
MR GAGELER: Yes. I am glad your Honour mentioned that because what I wanted to do was to draw a distinction, not necessarily a sharp distinction, between human rights analysis and the analysis required by the Refugees Convention. It is, in our submission, unnecessary to engage in a debate or analysis as to whether or not freedom to express publicly one's sexual preference constitutes or is appurtenant to something that can be described as a human right. If it is, then it is of comparatively recent origin and - - -
GLEESON CJ: It depends on the nature of the preference, perhaps. There are some people whose sexual preference is for quantity and in many societies they have to be very discreet about it.
MR GAGELER: Yes, I accept that absolutely. The point that I was going to make really follows on from your Honour the Chief Justice's comment and that is not only would such a right be difficult to define and be undoubtedly of recent origin, but it could not be said to be universally recognised. There are many societies, many civilised societies where the existence of such a right or freedom would be strongly disputed.
When one gets to the application of the Refugees Convention one, of course, accepts that it comes from the same historical source as the Universal Declaration of Human Rights which, of course, on one view would touch upon that issue, in any event. It comes from a source that shares a common concern with human welfare and human dignity but it does not mean that simply by labelling something a human right, saying that there is a violation of that human right one gets to the point of labelling what has occurred as persecution for the purposes of the Convention.
What one needs for persecution for the purposes of the Convention is something that amounts to serious harm to an individual that rises to a degree where it is intolerable - would be intolerable - for that individual to be returned to the country of origin. Now, that is really the point your Honour Justice McHugh was making in Ibrahim. I will come to that in a moment but could I ask your Honours - - -
KIRBY J: There was a difference of opinion in the United Nations Human Rights Committee in Toonen v Australia, was there not, between the majority which founded its decision on the right to privacy and another view which founded it on the right to equality of the human person?
McHUGH J: I do not think so. I think it is Article 17. I am not sure. I thought they did it on the grounds of arbitrary - - -
KIRBY J: Article 17 is the privacy article, I think.
McHUGH J: I thought they said it was arbitrary. I may be wrong.
KIRBY J: Mr Croome had not been prosecuted and that was said to be a flaw in his standing. Mr Toonen and Mr Croome, they had sent an affidavit, I think, to the police and were not prosecuted, but in this case what is said is that these appellants face a much more lively risk of prosecution than Mr Croome did.
MR GAGELER: That could have been said. It has never been said. It is really not this case. Your Honour, going back I think to section 377, that really has never been raised.
KIRBY J: No, but 377 is simply part of a social paradigm which is a mixture of criminal, religious, social attitudes which are not brought into action so long as a person keeps very quiet and pretends to be something else than homosexual.
MR GAGELER: No. That is not the finding. It is not the matter of pretending to be something else other than a homosexual. It is a matter of doing something so as to publicly - - -
KIRBY J: That is what "discreet" means.
MR GAGELER: The way in which Justice Lindgren construed the Tribunal's reasons is, in our submission, correct and in any event is not challenged in the appeal. It is at page 165 at line 20.
CALLINAN J: Mr Gageler, have you finished answering Justice Kirby's question?
MR GAGELER: I think so, your Honour, yes.
CALLINAN J: I am still troubled about where section 377 fits in, in all of this, with the Penal Code. The explanation for its non-application just cannot be right, that in effect you can never get evidence. That is the suggested explanation at 113.
MR GAGELER: One problem is it was never explored because really this was never put.
CALLINAN J: That is not contradicted. It is a statement that - - -
MR GAGELER: Your Honour is there looking at the lawyer's statement at page 113 and of course a lawyer would say that sort of thing, but there are other statements, for example, page 86 at the bottom of the page, line 49.
GLEESON CJ: What is this document, country information?
MR GAGELER: This is a country information cable. What is there is said at 49 - and unfortunately the next page does not seem to follow consecutively - but the suggestion one would get from that is that this is just on the statute books but not really much more than that. Page 94, your Honours might note paragraph 1, lines 19 to about 22, which suggested that there was a significant level of male-to-male sexual behaviour. Your Honours might also note at page 115 - - -
HAYNE J: It needs to be read with what is said at page 95. Page 95 corrects a typo at 94.
MR GAGELER: Thank you, your Honour. Then at page 115 - again more country information - your Honours should note lines 50 through to the top of the next page.
I was in the process of taking your Honours to Islam, also referred to as Shah, in the House of Lords [1992] 2 AC 629. Your Honours might note in passing what Lord Steyn said at page 644H to 645A. I have drawn your Honours' attention already to 653H in Lord Hoffmann's judgment. May I move to Lord Millett's judgment in dissent - - -
GUMMOW J: What was the issue in Shah?
MR GAGELER: The issue was whether women whose husbands falsely accused them of adultery constituted a particular social group who were discriminated against.
GUMMOW J: Was it not all women in Pakistan?
MR GAGELER: All women in Pakistan, I am sorry, yes.
GUMMOW J: That was the source of the problem that Lord Hoffmann was addressing, the passage you took us to.
MR GAGELER: It was put in two ways. Some of their Lordships thought it meant mattered and some thought it did not - - -
GUMMOW J: Yet three of them said it was all women, one of whom was Lord Hoffmann.
MR GAGELER: Yes. The point they are making is that within a particular social group there may well be some who are not persecuted, who do not face persecution for their own reasons. In Lord Millett's reasons, page 660 - - -
GLEESON CJ: I imagine the president was one of them.
MR GAGELER: Page 660G - this is, as I said, reasons in dissent but for present purposes that does not matter. Page 660G makes the point that refugee discourse is not the same as human rights discourse. Page 662G, the entirety of that paragraph again makes the point that one needs to look at how the individual is or may be treated. That is what this Court said in Guo and that is what Lord Millett is saying at 662G. Then at 663B and following, again the question whether all members of a group must be equally liable to persecution is raised.
KIRBY J: It is not an unimportant passage, is it, at 663D?
MR GAGELER: No, not at all, but it is pointing to a need to look to the facts and it is dealing with a slightly different distinction, that is not between a publicly acknowledged homosexual and a discreet homosexual but between a practising and a non-practising homosexual, and the query was whether the non-practising homosexual would face harm - - -
KIRBY J: But he says that:
This would be a matter of evidence, but given the hostility encountered by all homosexuals in such a society and the obvious problems the applicant would have in satisfying his tormentors of his sexual abstinence -
ie, living together as mates -
I doubt that the difficulty would be a real one.
So he seems to be suggesting that in some societies such is the hostility that the suggestion that he would not be persecuted because he was a homosexual would not be a real one.
MR GAGELER: That may well be so, but so far as legal - - -
KIRBY J: The problem that is presented here, as I understand it, by that Naz Foundation, is that it is very difficult in Bangladesh for people to live together, openly, as a homosexual couple and, in that way, to give expression to their personality or nature and that a point is reached when, if you have lived together for a certain time, the idea that you are just good friends begins to wear off.
MR GAGELER: Your Honour, I would accept what your Honour says in terms of legal analysis as pointing to a need to examine each case and to look at the fact and degree of harm in the individual case. If that is what your Honour is putting to me as a matter of legal analysis, then I fully accept that.
In Ibrahim [2000] HCA 55; 204 CLR 1 there is some analysis in the judgment of Justice McHugh which we would adopt at page 18 paragraph 55, the first sentence and indeed the second sentence, but relevantly fleshed out, page 20, paragraph 61 through to and including paragraph 65.
KIRBY J: Correct me if I am wrong, but I think some other passages you cited in your written submissions suggest that Justice McHugh's approach, which I think he originally stated in Applicant A, is the usual approach of this Court, that is to say that you have to identify the particular social group with some precision, having regard to the particular facts of the case.
MR GAGELER: Yes.
KIRBY J: Does that not create a problem with the approach that seems to have been taken by the Tribunal which the appellants are a bit loath to let go of, namely that the social group is all homosexuals in Bangladesh as distinct from homosexuals who, in a sense, are confronting the norms of society by living together as a couple?
MR GAGELER: Your Honour, I will answer that in stages. The first stage of my answer is to say why I was relying upon Justice McHugh's judgment was to make the point that persecution - I am looking here only at persecution, not social group - is referring to harm which in the circumstances of the individual rises to a level that makes it intolerable for that individual to go back to the country of origin.
GUMMOW J: What do you mean by "intolerable"?
KIRBY J: "Intolerable" puts it higher than Lord Hoffmann. He says "serious harm".
MR GAGELER: It gives some content to "serious harm" and it gives it a contextual context. What degree of seriousness of harm is required? The degree of seriousness of harm required is a degree that makes it just - - -
GUMMOW J: We are talking about the word "persecution", are we not?
MR GAGELER: Yes, but - - -
GUMMOW J: All glosses.
MR GAGELER: No, it is not gloss at all; it is an expurgation.
GLEESON CJ: Was there any evidence in this case - sorry, have you finished that answer?
MR GAGELER: I will come back to it, your Honour.
GLEESON CJ: Was there any evidence in this case about what the attitude of Bangladeshi society is to people of opposite sex who live together but are not married? Was there any requirement of discretion there?
MR GAGELER: I will check that over lunch, your Honour. I think there was some evidence about sexual behaviour that in any way confronted the general social mores, but I will check that.
GLEESON CJ: Yes, there are, I think, a number of societies in the world where heterosexual relationships not involving marriage would be confronting of the social mores of the community but would be accepted, provided people were reasonably discreet about it.
MR GAGELER: Yes, and there may well be public displays of sexuality by individuals by the way they behave or the way they dress that would also give rise to some difficulties.
I am sorry, to go back to Justice Gummow's question, what Justice McHugh, in our submission, is correctly doing is giving content to the notion of "serious harm" and doing it by reference to the context in which it is used in the Convention.
To return to your Honour Justice Kirby's question about the particular social group, the first part of the answer is that here no one has ever suggested a particular social group, that is other than Bangladeshi homosexual males, that is what is the particular social group is a question of fact and none other was ever contended for.
KIRBY J: But that is in a case where - it is a bit like Khawar, is it not? Do you look at the social group as all women in Pakistan or do you cut it down so that it is all women in Pakistan who are falsely accused by their husband and have been subjected to threats of burning, and so on.
MR GAGELER: Moving beyond that, your Honour, to the potential other social groups that were never raised, there could perhaps be a potential social group of indiscreet or open Bangladeshi homosexual males. The question would then become in part whether these appellants fell within that social group, and on the facts they did not in the past and there was no reason to believe that they would fall within that social group in the future, so the question of narrowing the social group even if it addressed is not something that helps the appellants, in our submission.
GLEESON CJ: Is that a convenient time?
MR GAGELER: It is.
GLEESON CJ: We will adjourn until 2.15 pm.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.16 PM:
GLEESON CJ: Yes, Mr Gageler.
MR GAGELER: Your Honour the Chief Justice asked whether there was any evidence before the Tribunal about the need for discretion on the part of heterosexuals. The answer is very little. At page 142 line 30 there is a finding after the statement "homosexuality exists in Bangladesh it has a very low public profile", it is said:
Like most sexual issues, it is not a matter which is generally discussed.
The source of that statement is page 116, a document to which I have already taken your Honours, line 14:
THE MAJORITY OF BANGLADESHIS ADOPT A RATHER CONSERVATIVE PUBLIC STANCE ON SEXUALITY. SEXUAL ISSUES ARE NOT NORMALLY DISCUSSED.
KIRBY J: There is material at 86 and 88 that seems to be amongst the country report - some of it appears to relate to India rather than Bangladesh; I am not sure whether there is any difference - in which it said that a man must be married and at 88 that the:
CULTURE THAT DEMANDS COMPULSORY MARRIAGE AND PROCREATION, THAT GIVES NO VALIDITY AND SPACE TO AUTONOMOUS WOMEN AND MEN, THAT STIGMATISES UNMARRIED INDIVIDUALS, AND ONLY CONFERS ADULTHOOD, SOCIAL STATUS AND RESPONSIBILITY TO MARRIED MEN AND WOMEN WHO PRODUCE CHILDREN.
MR GAGELER: Yes.
KIRBY J: It is not a very conducive atmosphere for a homosexual couple. There is no space there for them.
MR GAGELER: Relevantly, though, in answering your Honour the Chief Justice's question, 88, the last three lines;
SEXUAL BEHAVIOURS CANNOT BE BROUGHT INTO THE PUBLIC DOMAIN. TO DO - - -
GLEESON CJ: I am not speaking with any degree of precise knowledge about Bangladesh or anywhere else, but in countries where a substantial number of marriages are arranged, there may be heterosexual relations of a kind that would be regarded as confronting to social mores but that take place in what might be called a clandestine, or, in some other context, a discreet fashion.
MR GAGELER: Yes. The flavour that one gets from reading the totality of the document to which his Honour Justice Kirby referred is that in this society, provided that the outward integrity of the family unit is maintained the private behaviour of particular persons does not matter very much.
GLEESON CJ: Suppose you had a society in which men were expected to marry but they were also expected to marry whomever their parents wanted them to marry and if they entered into a heterosexual relationship with another person other than their wife that would be regarded as confronting of social mores and would be strongly disapproved of, to say the least, and perhaps might attract unpleasant social sanctions, unless it were done very discreetly. Would that constitute persecution?
MR GAGELER: No.
GLEESON CJ: Why not? I am not saying it would, I am just asking what the reason is.
MR GAGELER: No, no. Intuitively, obviously not. A principled answer would say, I think, that it would not constitute harm of a sufficient degree to make living within that society intolerable to the individual. I am focusing only on the word "persecution". There would be an obvious difficulty as well, your Honour, with a particular social group, but I will leave that to one side.
Your Honour Justice Callinan asked about cases dealing with a law such as section 377 of the Bangladeshi Criminal Code. Indeed, there are cases dealing precisely with that section and the clearest one to which reference is generally made is a decision of Justice Madgwick in MMM v Minister for Immigration (1998) 90 FCR 324, dealing precisely with section 377 of the Bangladeshi Penal Code. Usefully the holding in the headnote numbered 3 sufficiently states the principle which has since been applied on many occasions in the Federal Court and in the Tribunal. The clearest statements in the judgment relevantly appear at page 333, at B to C in particular. His Honour accepts that if such - - -
CALLINAN J: Is that the right page, Mr Gageler?
MR GAGELER: Page 331B to C - I am so sorry. His Honour accepts that if such a law were to be enforced its enforcement would amount to persecution, but at the bottom of the page, last three lines:
However, in this case, all that was shown was the existence of the law and no evidence of its enforcement. Nor was there any demonstration that in the moderately near future there was a real chance that the law might be pressed into service.
The same mode of analysis has been adopted in the United Kingdom, and your Honours have been provided with a couple of cases. One of them is a judgment of Mr Justice Goldring in a case of Ex parte T [2001]IAR 187, and to demonstrate what one could infer from the material, that section 377 of the Bangladeshi Penal Code is a relic of the British Raj, one found in that case section 377 of the Pakistani Criminal Code in identical terms and an argument was put, amongst others, that the mere existence of section 377 of the Pakistani Criminal Code was persecutory of a Pakistani homosexual and his Lordship's answer to that was no.
Your Honours will see the relevant paragraphs in the judgment are paragraphs 3 and 26, then his Lordship's holding on that point in paragraphs 54 through to 60.
GLEESON CJ: Is adultery a criminal offence in Bangladesh?
MR GAGELER: I do not know, but I think it is. It is suggested to me that it may carry the death penalty.
GUMMOW J: Not for the husband.
MR GAGELER: I perhaps should not go down that track. I just do not know. While your Honours have that case, your Honours might also note a different proposition and the way his Lordship dealt with it - paragraph 30, proposition 4 - not very different from the present case. The way in which his Lordship dealt with that is again not very different from the resolution in the present case, paragraph 52 in particular.
While we are dealing with section 377, your Honours have another English case, this time in the Court of Appeal, Jain v Secretary of State for the Home Department [2000] UKIAT 00579; [2000] Imm AR 76. This was a case of an Indian homosexual who, as your Honours will see from the first paragraph of the judgment of Justice Schiemann, said that he feared:
that if he has to go back to India he will be unable to live openly in a homosexual relationship.
At page 3 of the print, at about point 3 of the page, your Honours will see a reference to section 377 of the Indian Penal Code as being part of the factual matrix that gave rise to the fear. At page 4 of the print, at about point 4 of the page, at paragraph 1, it is clearly enough accepted that enforcement of such a law would constitute persecution but at the bottom of that page, the entirety of the rest of that judgment is instructive.
GLEESON CJ: Somebody has marked my passage. They have probably yours too, have they?
MR GAGELER: It may have been - - -
GLEESON CJ: That passage that is marked with a line alongside it leads me to inquire how you would relate that to imposing the death penalty for adultery which usually occurs between consenting adults in private, unless you are an exhibitionist.
MR GAGELER: Yes. The issue does not arise if the facts are that such a law is not enforced. That is essentially the point that I was relying upon here. If the evidence were that such a law were enforced, then it is possible, your Honour, that the application of that law would amount to persecution. One would then face a question of whether the persecution would be for a Convention reason.
I wanted to draw your Honours' attention to the paragraph beginning at the bottom of that page, the discussion of persecution amounting to "serious ill-treatment" and, really the conclusion - - -
GUMMOW J: Is that right?
Persecution must at least be persistent and serious ill-treatment without just cause -
Is that the effect of the Australian authorities?
MR GAGELER: The serious ill-treatment, yes.
GUMMOW J: What about persistent?
MR GAGELER: Not necessarily. And the conclusion particularly at page 5 about point 5 of the page. Now before lunch I had got to the point of Justice McHugh's judgment in Ibrahim, which we seek to adopt as stating an appropriate, perhaps not universal, test for persecution that looks to harm of a particular degree in the individual case. Your Honour drew support for that notion, in particular, from paragraph 42 of the United Nations High Commission Handbook on Refugees. I took your Honours slightly out of turn to the United Nations High Commission on Refugees Guidelines on Gender-Related Persecution. I do not go back to that, but I ask your Honours to note that in the context of what is described there generally as gender-related persecution, what one sees is no different approach and, in particular, the same approach is apparent in paragraphs 7 and 9 of the document in volume 2 of Amnesty's bundle at tab 24.
In our submission, the analysis in Win [2001] FCA 132 to which your Honours have been taken in part is entirely consistent with such an approach. The issue before Justice Madgwick in that case emerges from paragraphs 13 and 14. This was a political opinion case. Paragraph 13:
It was submitted by counsel for the applicants that the Tribunal's reasoning, though addressing the applicants' primary claim that they may be suspected of clandestine activity by Burmese officials, and persecuted for that reason, failed to address the subsidiary claim, that the applicants faced persecution because they would be denied the right to express their political opinions freely if returned to Burma.
The response in paragraph 14 of counsel for the respondent was:
that such harm could never amount to persecution under the Convention.
So issue was joined before his Honour on whether being denied the right to express political opinion freely can constitute persecution under the Convention and, in an analysis, which we wholly accept, his Honour said, yes, but not necessarily.
The entirety of the discussion from paragraphs 15 through to 23 is, in our submission, a correct analysis and entirely consistent with your Honour Justice McHugh's approach in Ibrahim. I ask your Honours to note in particular paragraph 17 where there is a reference to a homosexual case, LSLS, and it being accepted that the need for a homosexual to remain discreet may constitute persecution and the example given in the quoted passage we would accept as a case that may rise to that level. Paragraphs 19 and 20, in our submission, are really what it comes down to. Paragraph 19:
the mere fact that a particular right is denied is not, in my opinion, necessarily enough to establish refugee status. It will generally also be important to ascertain the importance that the asylum-seeker places upon the exercise of that particular right.
Paragraph 20:
The principle, it seems to me, is that a denial of such civil rights would amount to persecution when that denial is so complete and effective that it actually and seriously offends a real aspiration so held by an asylum seeker that it can be fairly said to be integral to his or her human dignity.
And we adopt that and the balance of that paragraph as an appropriate statement of the legal principle.
HAYNE J: That is to begin the inquiry at the point of identification of a right generally held. Is not the relevant starting point for the inquiry what this applicant fears will happen to this applicant if he or she returns to the country of origin and there lives life as he or she would wish to?
MR GAGELER: Yes, entirely.
HAYNE J: That is you begin from the individual inquiry and reference to general rights and exercise of general rights may perhaps distract attention from the individual inquiry which is required by the Convention.
MR GAGELER: Yes. Your Honour, I agree entirely. That perhaps restates my starting point that one does not get in this case to this issue. Really I am proceeding here on a hypothesis that a claim properly arises that the present appellants or someone else is denied freedom of action by the circumstances permitted by a foreign state.
HAYNE J: Not the least difficulty that emerges from beginning from a generalisation about rights is the risk of stereotyping.
MR GAGELER: I agree.
HAYNE J: And forcing the applicant into an artificial construct of a stereotype, leave aside the fact the stereotype may have no reality in any field of discourse, but even if it does, may have no particular application to this applicant.
MR GAGELER: Yes. Your Honour, I agree entirely. I also draw your Honour's attention to paragraph 23 which really emphasises the need to focus on the individual in the individual case. That is Win. It has been applied by Justice Hely in another political opinion case, NAFA v Minister [2002] FCA 844. Your Honour's attention should be drawn to paragraphs 35 and 36 where consistently with what your Honour Justice Hayne said, Justice Hely emphasises the need to look at the individual case, the test being one of fact and degree.
To demonstrate, only by example, that the same approach has been applied in cases of alleged infringement of religious freedom, your Honours have been given a copy of Applicant R v Minister [2001] FCA 943, paragraphs 20 to 21 in particular. There is no statement of principle that your Honours really draw from that but it is a case where a Christian claimed persecution because if he were to return to Iran he would not be able to proselytise and it was doubted by the Tribunal that that conversion to Christianity was genuine but said, in any event, for this person not to proselytise would not amount to persecution and that was said not to demonstrate any error of law.
In our submission, the homosexual cases in the Federal Court - - -
GUMMOW J: What about the decision of Justice Hely in Gui [1998] FCA 1592. Is that on our list? He, in that case I think - - -
MR GAGELER: Mr Lloyd thinks that was overturned on appeal, your Honour, we can check that.
GUMMOW J: Yes, and on this point?
MR GAGELER: I just do not know. We can check that and we can let your Honours - - -
GUMMOW J: Anyhow, whether it was overturned on appeal or not does not stress me very much. What stresses me is the cogency of the reasoning of Justice Hely at the moment.
MR GAGELER: I am sorry, your Honour, I do not have that case in front of me.
GUMMOW J: All right.
MR GAGELER: In our submission, the homosexual cases in the Federal Court which we summarise in paragraph 11 of our supplementary submissions really fit within the same mould and one of them, LSLS, your Honours will recall, was one of the building blocks used by Justice Madgwick in formulating the approach which we seek to have your Honours adopt.
KIRBY J: There seems to be a thread through the Australian cases of the obligation of discretion, effectively, that you will not be persecuted if you can go back home and live a discreet life and thereby keep your head down and not draw attention to yourself, which may be difficult in a couple and less difficult in an individual. This does not seem to be, on the written material that has been put before us, the approach that has been taken in a number of other jurisdictions. In New Zealand, the United States a number of cases have been referred to where this is not the approach. Now, the question is whether or not this has slipped into our jurisprudence in the Federal Court and in the Tribunal and whether on the facts that were litigated this is a case to correct it.
MR GAGELER: If some wrong analysis has slipped in by reference to some notion of an obligation of discretion, this is not the case to correct it, but the notion of an obligation of discretion - - -
KIRBY J: The reasons did come to a crescendo in the end and referred to discretion. The reasons of the Tribunal in this very case did ultimately come back to that and it seems to be woven through all the cases that it is not discretion if you are not going to be subjected to serious harm if you keep your head down and deny your sexuality.
MR GAGELER: Your Honour, I do not accept the reference to an obligation of discretion being imposed by the Tribunal or the Federal Court as being an appropriate description of any of the Australian cases. All that is occurring is that the Tribunal and the Federal Court - and I am not an apologist for every decision that has ever been made in this area, but what is generally occurring is that what is being focused upon is the claim of persecution. The claim of persecution has generally been one of physical harm. The analysis in reaching the conclusion as to whether or not there is a real risk of physical harm has involved determination of the likely behaviour of the relevant applicant, will it or will it not be such as to attract such a real risk? One of the elements of that, in some societies, involves whether or not there will be some sort of public behaviour that will threaten the mores of the society.
Your Honour can call that discretion or not. It is not an inappropriate label but it is wrong to say that the Tribunal is doing anything more than simply assessing the facts before it. It is not imposing any obligation.
KIRBY J: But it is facing the reality that if it sends the person back to this country with the country information they will be subjected to effective pressures to be silent about their sexual orientation, not to reveal it, to avoid public acts of love and intimacy with another human being and, in many cases in the subcontinent, apparently, to get married so as to fulfil the mores of the society. Now, the question is whether that is such an affront to human dignity that even the expectation that that is what will happen when the person is returned is the very definition of the kind of serious harm that persecution contemplates.
MR GAGELER: Our submission is no, although we accept that in an individual case the harm to the individual may rise to that level, but one needs to look at the particular circumstances.
KIRBY J: Have there been cases in the Tribunal where homosexual applicants have risen to that level, or has discretion been uniformly the reason that it has been held not to give rise to persecution within the Convention?
MR GAGELER: There is no doubt that there are many cases where homosexuals have been successful in getting refugee status in Australia by reason of their sexuality, but I could not give your Honour a more detailed answer, although I could in due course.
KIRBY J: I think we were told of one case where one partner in a relationship succeeded before one member of the Tribunal, and then before another member of the Tribunal the other partner in the relationship did not succeed. I think that is one of the cases in the collection.
MR GAGELER: Your Honour, sometimes co-conspirators are dealt with inconsistently as well. We are not here engaged in an audit of every decision made by the Tribunal. That may be bad decision making. Your Honour also suggested against us that we are somehow out of step in Australia with developments overseas.
KIRBY J: I am just referring to the cases that have been mentioned in the written submissions.
MR GAGELER: It is not so in relation to the United Kingdom and I have taken your Honours to - - -
KIRBY J: I think that is acknowledged that until recently the United Kingdom took a similar line.
MR GAGELER: We do not perceive any difference between the approach that we adopt and what is shown in the United States cases referred to in Amnesty - - -
KIRBY J: Except that there is a recent Circuit Court of Appeal's decision in the United States.
MR GAGELER: Your Honour might be referring to Hernandez. We have dealt with that in paragraph 29 of our supplementary submissions and we do not see it as standing for any general proposition that is against us.
KIRBY J: I have not read it yet.
MR GAGELER: So far as the Canadians are concerned, it may well be, at least at the Tribunal level, that a different approach has been taken, but it is one of nuance, your Honour, and we have sought to deal with this case at the level of principle. If your Honours please.
GLEESON CJ: Thank you. Yes, Mr Levet.
MR LEVET: Your Honour Justice Hayne inquired of my friend whether one should not begin from the individual inquiry required by the Convention, and I seek to address that point. The individual inquiry that the Tribunal was obliged to make is: would these appellants have a well-founded fear of persecution if they returned? Given the findings of fact about their membership of the social group and given also the finding of fact that were that membership of the social group to, as it were, be in the face of the authorities that they would be subject to - - -
GUMMOW J: There is a threshold question, which is: could this ever be good enough to fall within the statutory expression? Not does this case fall within it, but could any case fall within it unless there are these particular characteristics when it is said, "You don't have them, so out". That seems to me the question, and to look at it in terms of the threshold poses a question of law, I think.
MR LEVET: Indeed, your Honour.
GUMMOW J: This is a section 476 case, is it not, in the Federal Court?
MR LEVET: Yes.
GUMMOW J: So it does not have to be jurisdictional error actually.
MR LEVET: Your Honour, if one looks at the answer to the question, in this case, "Do they have a well-founded fear of persecution if they returned?", the answer has to be yes, given the findings of fact, unless they act in such a way as to hide their membership of the social group.
KIRBY J: It is common ground, is it, that there is nothing in the recent migration legislation that touches this case? Neither side has referred to it and I will assume that there is none.
GUMMOW J: It is an old section 476 case.
MR LEVET: It is an old section 476 case, yes, your Honour.
KIRBY J: And the position of cases still in the system have been preserved by the supervening amendments to the Act.
MR LEVET: Yes, your Honour.
KIRBY J: Is that referred to in your written submissions or is there any indication somewhere where that could be confirmed? Perhaps that is a common ground and can be sent in a little note - - -
MR GAGELER: Yes. Your Honour, of course this is an appeal in the strict sense from the decision of the court below which was made on section 476. So it is the old law that is applicable to this case.
KIRBY J: My question is a step down the track. Assuming that one were inclined to allow the appeal, is it in any way relevant that the matter would go back to the Tribunal to determine the matter and that the law has changed in the meantime? Is that a relevant consideration or irrelevant consideration?
MR GAGELER: The definition of a refugee has not changed in the meantime. The provisions of the Migration Act 2001 governing the judicial review of any decision of the Tribunal, if it were to go back to the Tribunal and a decision were to be made and it were to be reviewed again, have changed. That makes no difference to the approach of this Court.
KIRBY J: Yes, thank you, Mr Gageler.
MR LEVET: Your Honours, we would answer the question, "Do they have a well-founded fear of persecution if they returned?", as being yes, unless they act in such a manner as to hide their identity of the social group. We say the well-founded fear of persecution is inherent in the findings of fact that have been made before the Tribunal.
Your Honours, in that regard, if I could take you to a recent decision of the Full Court of the Federal Court, SGKB v Minister for Immigration and Multicultural Affairs [2003] FCAFC 44, a decision on 18 March 2003 of their Honours Justices Spender, Dowsett and Selway. It concerns a Christian convert from Iran. The Tribunal had found the applicant did not have a well-founded fear as:
Converts to Christianity are generally tolerated as long as they maintain very low profiles -
and that the applicant would not bring himself to the attention of authorities. The court found that the Tribunal had erred in failing to address the future focus and the risk of inadvertent exposure. Your Honours, the risk of inadvertent exposure, in my respectful submission, is something also that the Court ought have regard of.
Your Honours, a decision in the matter of Farajavand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 on 20 June 2001. The decision of his Honour Justice Allsop takes up this issue of a low profile that your Honour Justice Kirby addressed earlier, and his Honour said at paragraph 25:
To say that if he keeps a "low profile" and worships "quietly" or "cautiously" or "circumspectly", is, I think, with respect, to deny the applicant a dimension to his faith, even accepting that he is not an enthusiastic proselytiser or derider of Islam. Further, on my reading of pages 16 to 18 of the decision, and the balance of the reasons of the Tribunal, it appears to me that the Tribunal recognised in its findings that the applicant would keep a low profile or be cautious or circumspect and that he would do so out of recognition of the likely consequences from State authorities in Iran if he did not do so.
KIRBY J: There seems to be a consistent stream in the Federal Court against the low profile thesis, the discreet doctrine in respect of political opinion - that is Win - and in respect of religious opinion - and that is this case and others - but there seems to be no inclination to apply a similar doctrine to cases of applicants who are homosexual. How does one reconcile that difference of approach, except that some people may have greater sympathy for people's political free expression and religious free expression than for the expression of their sexual identity?
MR LEVET: Indeed, your Honour, that is the very nub of the case. I opened, as you recall, on a quote from his Honour Justice Rehnquist in the United States Supreme Court and said that all that the appellants in this case were seeking was an even-handed application of an already existing body of law, and that is the situation. They would seek to be treated even-handedly in looking at this issue of whether they had a well-founded fear of persecution in exactly the same way as persons seeking Convention relief on religious or political grounds.
The only other issue that I might be able to assist your Honours with is in relation to the citing by my friend of the case of MMM, that being relating to section 377 of the Bangladeshi Criminal Code. If I could take your Honours in relation to the point made in MMM to page 86 of the joint appeal book line 39 onwards. This relates to the extant law, the section 377. Page 86 is, you will see, part of an edited version of the country information, which continues on from the preceding page. From line39 onwards it says:
I AM NOT AWARE OF COURT CASES IN BANGLADESH. HOWEVER, IN INDIA THERE HAVE ONLY BEEN A COUPLE. THE ISSUE HERE IS THAT THE POLICE HAVE OFTEN USED THE LAW NOT TO ARREST PEOPLE BUT TO OBTAIN MONEY THROUGH BLACKMAIL OR TO OBTAIN SEXUAL FAVOURS.
When there is a reference to "here", that is obviously a reference to Bangladesh, given the title on the preceding page, 85. So, the mere fact that while the law might be extant 377, the mere fact that it might not have been used in the strictly legislative or application of law sense by way of a prosecution for a significant period is not to say that it is not used at all. There is evidence here that it is used to obtain money through blackmail or to obtain sexual favours and that that use is made by the police.
Your Honours, we get back to what was the issue that the court had to decide, and it was simply this: do these people have a well-founded fear of persecution? We would say, yes, they do, unless they act in such a way as to hide their sexuality upon their return to Bangladesh. The question is exactly the same as that relating to Anne Frank: did she have a well-founded fear of persecution in Amsterdam? The answer, yes, she did, unless she continued to successfully hide in the attic.
Your Honours, those are the submissions, unless I can assist you further.
GLEESON CJ: Thank you. Yes, Mr Gageler.
MR GAGELER: May I correct my categorical answer to your Honour Justice Kirby concerning the legislation that would apply if the matter were to go back to the Tribunal. The Tribunal's reconsideration of the application of the definition in the Refugees Convention would be affected by the new section 91R which was inserted by the Migration Legislation Amendment Act (No 6), and that is made clear by the transitional provision, schedule 1, clause 7, paragraph (c).
GLEESON CJ: And what would be the relevance of that?
MR GAGELER: It does not bear directly upon the present issues but it does say that the persecution must involve serious harm and the persecution must involve systematic and discriminatory conduct.
KIRBY J: But you are not raising as a reason for not allowing the appeal the point that it would be immaterial?
MR GAGELER: No, I am simply correcting the answer that I gave to your Honour earlier.
KIRBY J: Yes, thank you very much.
GLEESON CJ: Thank you. We will reserve our decision in this matter and we will adjourn until 10.15 tomorrow morning.
AT 3.01 PM THE MATTER WAS ADJOURNED
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