SZAFD v MIMIA [2005] HCATrans 557 (5 August 2005)

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SZAFD v MIMIA [2005] HCATrans 557 (5 August 2005)

Last Updated: 15 August 2005

[2005] HCATrans 557

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S22 of 2004

B e t w e e n -

SZAFD

Applicant

and

MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

Respondent

Application for special leave to appeal

GLEESON CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 11.57 AM

Copyright in the High Court of Australia

MR L.J. KARP: May it please your Honours, I appear for the applicant. (instructed by Parish Patience Immigration)

MR S.B. LLOYD: I appear in this matter for the Minister. (instructed by Clayton Utz)

GLEESON CJ: Yes, Mr Karp.

MR KARP: Your Honour, this was a matter which was adjourned on order of the Court in March for the applicant to obtain legal representation. In my submission, this is a case about the role and duties of the Refugee Review Tribunal and, by inference, other tribunals of like type. It arises in a context of an administrative procedure where there is no opponent, no sets of issues which are defined by the parties other than the claims which are placed before the Tribunal and where the Tribunal acts as an inquisitor, judge and jury.

Against that background, the applicant advances three propositions: firstly, that the Tribunal is permitted to make findings of fact on issues that are not advanced by the applicant in the appropriate case; secondly, that once having made findings of fact about such issues it must, as part of its duties to review a decision under section 414 of the Migration Act, follow through on the consequences of these findings and; thirdly, in the circumstances of this particular case, the Tribunal failed to consider whether or not the applicant would succumb to lead a conventional rather than a homosexual lifestyle and whether this would lead to persecution. This also raises the issue of whether pressure to marry and maintain a conventional lifestyle in the circumstances of Bangladesh would operate differentially upon a male homosexual and whether that would cause serious harm in terms of section 91R of the Migration Act.

Your Honours, the facts of the case are, I do not think, in dispute. At page 10 of the application book the Tribunal rejected the vast majority of the individual claims that the applicant made. It did, however, accept that he was a homosexual from Bangladesh; that the community deeply disapproved of homosexuality; but it did not accept that he would be prosecuted or killed because of it. It also accepted that there would be pressure upon an applicant to adopt a conventional lifestyle but it was:

not satisfied the opprobrium of family and neighbours amounts to persecution under the Convention.

Your Honour, in the circumstances of this case I would submit that what the Tribunal should have done was to decide whether he was likely to succumb to pressure to adopt a conventional lifestyle and whether that would amount to persecution in terms of the Convention.

Your Honour, in my written submissions I have referred a case referred to a case called MMM v The Minister and I believe that the cases are not before the Court and I apologise for that but in that case - - -

GLEESON CJ: What page of your –

MR KARP: It is paragraph 17, your Honour.

GLEESON CJ: Yes.

MR KARP: Justice Madgwick, as I have said there, held that such pressure could not be persecutory for a Convention reason. MMM was decided before the decision of this Court in Chen Shi Hai which decided that laws of general application could be persecutory for a Convention reason if they operated differentially against certain groups of people. This case, of course, is not about a law of general application. It is about a general societal pressure and in the submission of the applicant, a societal pressure can operate differentially in the same way as a law of general application.

GLEESON CJ: That word “pressure” is not one of very precise meaning, particularly in the context of pressure to marry.

MR KARP: It is not a precise meaning, your Honour, but it does suggest that there is a convention in the society and that people are being – it is difficult to address the question without using the word “pressure” – but there is some sort of compulsion put in various ways to succumb to the convention.

GLEESON CJ: Well, a societal expectation might be described as a form of pressure to marry but whether it amounts to persecution might be a fairly large question.

MR KARP: It would, your Honour, but in the context of this case the Tribunal’s findings that the community deeply disapprove of homosexuality and that there would be opprobrium of family and neighbours. Now, that is more than a simple societal expectation. In the context of the applicant’s claims, he has said, and it does not appear to have been rejected by the Tribunal, that the committee of the markets in which he was a shopkeeper and his local mosque were trying to get him to marry to prove that he was “straight”. That is a bit more than a societal expectation, that is trying to force him to do something which would - - -

GLEESON CJ: Yes, but the question is whether it is persecution.

MR KARP: That is one question, your Honour. The other question is whether the continued pressure over a period of months or years might make him succumb to the convention and whether the consequences of his succumbing could be persecutory. Justice Madgwick said in MMM that it might be that it would be as deeply intrusive for and offensive for a homosexual man to be forced to enter into a conventional heterosexual relationship as it would be for a heterosexual man to be forced to enter into a homosexual relationship. Now, I think that could be accepted at face value.

The question which the Tribunal did not ask itself in this case and which, I would submit, it should have asked itself, is following on from the finding that there would be pressure upon the applicant to adopt a conventional married life whether firstly, the pressure was such that he may succumb and secondly, whether if he did succumb he would be faced with persecution in the way I have just described.

Now, those are the issues which I have taken from the case, your Honour. There is an issue which precedes this which I have alluded to at the beginning of my submissions and that is the extent to which the Tribunal, having made findings of fact which are not advanced by the applicant – or on issues which are not advanced by the applicant – is required to follow through on those findings.

Your Honour, in my submission, given the way the Tribunal is constituted, that being that it is the sole finder of fact and it has the duty, the very onerous duty, imposed upon it by the legislature of asking questions, making inquiries if it needs to under 424A and 425 and making findings that it must address the issues which it sees to be advanced by the case and by the country and other information which are before it. The fact that there is no opponent means that the issues are not conventionally defined and are not conventionally explored in a way which would be before a normal court or tribunal such as the AAT. Your Honours, unless I can further assist, those are my submissions.

GLEESON CJ: Thank you, Mr Karp. We do not need to hear you, Mr Lloyd.

Having regard to the findings made by the Refugee Review Tribunal as to the applicant’s credibility and to the information that was before the Tribunal, we consider that there are insufficient reasons to doubt the correctness of the decision of Justice Wilcox in the Federal Court to warrant a grant of special leave to appeal. The application is dismissed with costs.

We will adjourn for a short time to reconstitute.

AT 12.07 PM THE MATTER WAS CONCLUDED