Specialist in Australian Immigration, Migration Consultant and Online Australian Visa Assessment Service.
Australian Immigration Specialists - Australian Immigration Consultants Online Australian Visa Assessments for immigration to Australia
  Research Home

Categories
Administrative Appeals Tribunal
Federal Court
Federal Magistrates Court
Full Federal Court
High Court
Migration Review Tribunal
Other Jurisdictions
Refugee Review Tribunal
Recently Added
Re Patterson; Ex parte Taylor [2001] HCA 51 (6 September 2001)
Singh v Commonwealth of Australia [2004] HCA 43 (9 September 2004)
Muin v Refugee Review Tribunal; Lie v Refugee Review Tribunal [2002] HCA 30

"Use the Migration Specialists that migration agents use"
Cases

MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class AZ) visa - no reviewable error found - application dismissed.

SZATS v Minister for Immigration [2004] FMCA 660 (11 November 2004)

SZATS v Minister for Immigration [2004] FMCA 660 (11 November 2004)
Last Updated: 19 November 2004

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZATS v MINISTER FOR IMMIGRATION
[2004] FMCA 660




MIGRATION - Review of Refugee Review Tribunal decision - refusal of a protection (Class AZ) visa - no reviewable error found - application dismissed.




Migration Act 1958 (Cth), s.474

Judiciary Act 1903 (Cth), s.39B

Freedom of Information Act

Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2

Re Minister for Immigration & Multicultural Affairs; Ex parte Applicants S134/2002 [2003] HCA 1

Craig v South Australia (1994) 184 CLR 163

Dranichnikov v Minister for Immigration & Multicultural Affairs [2003] HCA 26

Minister for Immigration & Multicultural Affairs v Rajalingam (1999) 93 FCR 220

Appellant S395/2002 v Minister for Immigration (2003) 78 ALJR 180, 186

SZANS v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FMCA 445

Chen Shi Hai v Minister for Immigration (2000) 201 CLR 293

SZAOD v Minister for Immigration [2004] FMCA 89

Minister for Immigration & Multicultural Affairs v Haji Ibrahim (2000) 204 CLR 1

MMM v Minister for Immigration & Multicultural Affairs (1998) 170 ALR 411

Ram v Minister for Immigration (1995) 57 FCR 565

Applicant A v Minister for Immigration & Ethnic Affairs (1997) 190 CLR 225

NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 79

NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 199

Applicant:
SZATS




Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS




File No:


SZ1083 of 2003




Delivered on:


11 November 2004




Delivered at:


Sydney




Hearing date:


20 September 2004




Judgment of:


Lloyd-Jones FM




REPRESENTATION

Counsel for the Applicant:


Mr L Karp




Solicitors for the Applicant:


Parish Patience




Counsel for the Respondent:


Mr G Johnson




Solicitors for the Respondent:


Blake Dawson Waldron




ORDERS

(1) The application is dismissed.

(2) The applicant is to pay the Minister's costs and disbursements of and incidental to the application.

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY



SZ1083 of 2003

SZATS



Applicant

And

MINISTER FOR IMMIGRATION &

MULTICULTURAL & INDIGENOUS AFFAIRS





Respondent


REASONS FOR JUDGMENT
The proceedings

1. This judgment relates to a decision of the Refugee Review Tribunal ("the Tribunal") made on 29 September 2000 and handed down on

18 October 2000. The Tribunal affirmed the decision of the delegate of the Minister not to grant the applicant a protection (Class AZ) visa.

2. The applicant arrived in Australia on 20 February 1998. On

27 February 1998 the applicant lodged an application for a protection (Class AZ) visa with the Department of Immigration & Multicultural &am;
p; Indigenous Affairs under the Migration Act 1958 (Cth) ("the Act"). On 11 March 1998 the delegate of the Minister refused to grant a protection visa.

The history

3. The applicant claimed to be a single man born in August 1971 at Mallaj, Lekhphant, Parbat district of Nepal. He was educated at the local school in the village of Mustang and finished his Secondary Certificate in 1988 when he was 17 years of age. After completing his secondary education, the applicant went to Pokhra to live with relatives and enrolled and completed a diploma course in management at Tribhuvan University.

4. The applicant's mother, brother, stepfather, stepbrother and stepsister continue to reside in Nepal.

5. The applicant commenced working as a salesman during his enrolment at University and continued working in that position for four years until 1996. From approximately January to August 1997 the applicant helped supervise the construction of his uncle's house.

6. Whilst staying with his uncle, the applicant was introduced to a local broker who was organising a group of Nepalese dancers and musicians attend the Adelaide Festival. The applicant paid the broker 400,000 Nepal rupees and was given papers including a passport under an assumed name.

7. On arrival in Australia, the group stayed in Adelaide for six days before travelling to Sydney. In Sydney the applicant met with other Nepalese who advised him that he could stay in Australia by applying for refugee status. The applicant claimed his friend completed and lodged his application for a protection visa. When the application was refused, the applicant claimed the same friend helped him complete and lodge his appeal with the Tribunal.

The delegate of the Minister's decision and reasoning

8. The delegate for the Minister noted in the applicant's application that he claimed that he came from the Myagdi district which was targeted by Maoist Communists. Even though the Nepalese government was doing its best to crush the communist movement, the applicant claimed that ordinary people such as himself were suffering. The applicant also stated that he had no documents to prove his suffering but he would be prepared to talk about his situation privately if called for an interview.

9. The delegate noted there was no obligation on the Department to arrange for an interview in order to assess the claims of the applicant. In noting that the applicant had deliberately chosen to omit his claims of persecution, the delegate did not accept that the applicant had a well-founded fear of persecution. The delegate found that the applicant did not have a real chance of Convention based persecution if returned to Nepal and that his fear of persecution on return was consequently not well founded.

10. The delegate refused the applicant's application for a protection visa as he was not considered to be a person to whom Australia had protection obligations under the Refugees Convention. On 9 April 1998 the applicant applied for a review of the delegate's decision.

The Tribunal's decision and reasoning

11. On 14 April 1998 the Tribunal wrote to the applicant regarding a review of the delegate's decision. On 15 June 1999 Mr D Bitel of Parish Patience, Solicitors, filed a Form 956 Appointment of Person to Act as Agent on behalf of the applicant. In response to a request by Parish Patience on 12 July 2000, the Tribunal advised the applicant by letter dated 13 July 2000 that the matter was postponed to 25 August 2000. On 24 July 2000 Parish Patience returned the hearing invitation form to the Tribunal noting the applicant's intention to attend the hearing.

12. In his application for review, the applicant said that he needed time to obtain documents from Nepal which may help his case. He asked for the opportunity to provide documents from his `party organisation'. The applicant's solicitor sought time to lodge further submissions and on 4 August 2000 the Tribunal received a number of documents and submissions together with a copy of a statutory declaration sworn by the applicant.

13. In considering the applicant's application for review of the delegate's decision, the Tribunal had before it the Department file, the protection visa application and written submissions in support of the application for review.

14. The Tribunal noted that the applicant had initially claimed he was at risk of harm because of Maoist insurgents in Nepal. It also noted that following the delegate's decision to refuse the protection visa, the applicant lodged an application for a review of the decision and asked for further time to provide documents.

15. The Tribunal noted that shortly before its hearing, being a period of some two and a half years after his initial application, the applicant resiled from his claims on political grounds and made a new set of claims based, solely on a fear of persecution for reasons of his membership of a particular social group, homosexuals in Nepal.

16. The applicant attended the hearing before the Tribunal on 25 August 2000 together with his solicitor. During the hearing the Tribunal addressed the applicant extensively on his written submissions and oral evidence (Court Book pp.174-190) ("CB"). In support of his claim of homosexuality, the applicant's solicitor requested the Tribunal allow a statutory declaration be submitted pending the Tribunal's decision. On 7 September 2000 the applicant's solicitor forwarded to the Tribunal a copy of an article and the further statutory declaration.

17. In determining the matter, the Tribunal considered the nature of the application and the circumstances surrounding the applicant's most recent claims. The Tribunal then considered whether the applicant, if he were a homosexual, would face a `real chance' of persecution in Nepal if he returned there now or in the reasonably foreseeable future.

18. The Tribunal, in considering all the factors before it, concluded that the application was opportunistic and that since 1997 the applicant had sought a way to enter and remain in Australia. The Tribunal was of the opinion that there was no element of fear at the time the applicant departed Nepal and he did not face a `real chance' of persecution at that time. The Tribunal was bound to consider the situation in the reasonably foreseeable future and make a finding as to whether or not there were objective grounds which would indicate the applicant could face a `real chance' of prospective persecution.

19. The Tribunal was of the opinion the applicant was not a homosexual and the application was an "eleventh hour set of claims fabricated for the sole purpose of providing a basis for a Convention claim". However, as it found it could not conclusively state that the applicant was not a homosexual, the Tribunal was required to address whether or not he could be persecuted for reasons of his homosexuality

(CB pp.192-195).

20. In summary, the Tribunal found that the applicant's late claims and the manner in which they were made, led to the finding that the claims were not genuine and that the applicant left his country without any basis for fear.

21. The Tribunal also found that, even if it were to accept the applicant's claims of homosexuality as genuine, his character was such that he would, in any circumstances, be discreet and conceal any homosexual relationship from public awareness. The Tribunal recognised the applicant's character, as it was and has been throughout his life, as one where his natural inclination to discretion and privacy would, of itself, ensure that he would not face a `real chance' of either social or legal adversity that would amount to persecution.

22. Having considered the evidence as a whole, the Tribunal was not satisfied that the applicant was a person to whom Australia had protection obligations under the Refugees Convention and therefore affirmed the decision of the delegate not to grant a protection visa.

The application for review of the Tribunal's decision

23. On 1 September 2004 the applicant's solicitor filed an amended application under s.39B of the Judiciary Act 1903 for a review of the Tribunal's decision. The grounds of the application are:

1. The Tribunal erred by failing to ask the correct questions, which in the context of the case before it were necessary for it to complete the exercise of its jurisdiction,

(a) whether the discretion that the applicant would exercise in hiding his sexuality was caused or influenced by fear of societal ostracism, and

(b) whether such ostracism would amount to persecution.

2. Further, the Tribunal erred by failing to ask the correct questions, which in the context of the case before it were necessary for it to complete the exercise of its jurisdiction,

(a) would societal pressure to marry impact differentially on the applicant as a homosexual?

(b) would the applicant be able to resist societal pressure to marry?

(c) if the answer to (b) above is "no" then,

(d) would it be persecutory for a homosexual man to be forced into a heterosexual marriage against his will.

Submissions

24. Mr L J Karp, Counsel appearing for the applicant, filed written submissions and made detailed oral submissions in support of his client's case. It was submitted that the Tribunal's approach of assessing the applicant's claims of homosexuality as factual despite sever doubts as to the veracity was inconsistent with the judgment of the Full Court in Minister for Immigration & Multicultural Affairs v Rajalingam. This was to the effect that if the Tribunal was uncertain as to a factual finding it should have asked the question, "What if I am wrong?".

25. It is submitted that in respect of the applicant's discretion that in Appellant S395/2002 v Minister for Immigration (Appellant S395) per McHugh and Kirby JJ at [35]:

"The reasons of the Tribunal show, ... that it did not consider whether the choice of the appellants to live discreetly was a voluntary choice uninfluenced by the fear of harm if they did not live discreetly. It did not consider whether persons for whom the government of Bangladesh is responsible condone or inculcate a fear of harm in those living openly as homosexuals, although it seems implicit in the Tribunals findings that they do. Nor did the Tribunal's reasons discuss whether the infliction of harm can constitute persecution where an applicant must act discreetly to avoid that harm. Nor did they discuss whether, if the appellants wished to display, or inadvertently disclosed, their sexuality or relationship to other people, they were at risk of suffering serious harm constituting persecution."

26. Counsel submitted that in the case there was evidence to suggest that the applicant's discretion was caused or at least influenced by fear of societal ostracism and legal reprisals if he were to live an openly homosexual lifestyle. The evidence suggested that homosexuals are treated with antipathy in Nepal (CB pp.70-74). It would have been open to the Tribunal, had it considered the issue, to find that the applicant's decision to be discrete was governed by societal attitudes. That was an issue that Appellant S395 demanded be addressed and argued that as it was not addressed, the Tribunal erred in law.

27. It was submitted that in respect of the pressure to marry, that in this case as in SZANS v Minister for Immigration (SZANS), the Tribunal did not consider whether pressure to marry had a differential impact on homosexual men. This failure amounted to jurisdictional error (Chen Shi Hai v Minister for Immigration; SZAOD v Minister for Immigration). In this case the Tribunal failed to consider whether pressure to marry would impact differentially on homosexuals.

28. It was submitted that in this case as in SZANS, Driver FM at [19] said:

"It was implicit in my reasoning in SZAOD that the consequences of successfully resisting pressure to marry would not constitute persecution. I maintain that view. However, the same could not be said of the consequences of succumbing to that pressure. This case can be distinguished on the facts from SZAOD. Unlike in SZAOD, in this case it was an open question whether or not the applicant would be able to resist the pressure on him to marry."

29. Counsel also submitted that in this case as in SZANS the Tribunal left open the question of whether the applicant would be able to resist pressure to marry. If he were able to resist that pressure there may be no consequence (SZAOD). However, if he were unable to resist he would be forced into a heterosexual relationship against his will. That would be persecutory (SZANS). The Tribunal did not consider this issue that was raised at least inferentially in the claims before it. It was argued that the Tribunal therefore failed to complete the exercise of its jurisdiction pursuant to s.414 of the Act.

30. Mr G Johnson of Counsel appearing for the respondent filed written submissions which were supported by oral submissions at the hearing. It was submitted that, in respect of abuse and process and the discretion to refuse relief, the grounds now advanced by the applicant either were or could have been advanced by him in his application filed in 2000. The applicant chose to discontinue those proceedings shortly prior to the hearing in the Federal Court.

31. Counsel submitted in respect of ground 1 of the application regarding discretion, the applicant claimed that the Tribunal erred by failing to determine whether his "decision to be discrete (sic) was governed by societal attitudes". This was not a case where the Tribunal failed to consider what a visa applicant would do as opposed to what he should do. This was the central error in Appellant S395. It was unambiguously not made here. The Tribunal expressly indicated that, looking at the specific nature of the applicant (and not any general material), it considered what he would do and not what he was expected to do: (CB pp.195-196). It also looked at why the applicant would be discreet and found that this was a product of his consistent nature since puberty: (CB p.194 [3]). This was not a case where the Tribunal failed to consider why he would be discreet. Contrary to the applicant's submission, it was expressly considered and, indeed, a finding was made.

32. In respect of the second ground, the respondent's Counsel submitted that the applicant contended that the Tribunal left open the question whether he would be able to resist marriage if he returned to Nepal. It was said that the Tribunal's finding that the applicant would not suffer persecution for a Convention reason as a result of such pressure was flawed in the way identified by this Court: SZANS. The respondent contended that the Court erred in that case and that it should not be applied. In that case, the Court relied upon the decision of the High Court in Haji Ibrahim to support a proposition that it is an error for the Tribunal to expect an applicant to show a differential impact upon him of the relevant harm (at [28]). It is contended that this involved a misapprehension of what was decided in Ibrahim and a misapplication to the present kind of case.

33. It was submitted the decision of the Tribunal, in Ibrahim was summarised by Gummow J in the following terms at [23]:

"... The Tribunal accepted that the Rahanwein clan, to which the respondent belongs, constitutes a particular social group for the purposes of the Convention definition and that his sub-clan, the Dabarre, constitutes a particular social group within the Rahanwein. The question the Tribunal posed was whether the "harm [the respondent] faces amounts to persecution for reasons of membership of either of these groups". The Tribunal concluded:

"What emerges from all the evidence is a picture of the ordinary risks of clan warfare, largely involving struggles for power and resources, in a context of instability and anarchy. Members of all clans and sub-clans in this tragic turmoil are at risk and, while some may be more vulnerable than others, none of the material before me points to circumstances which would convert the conflict into persecution. I am unable to discern anything in the experiences of the [respondent], or his clan, the Rahanwein, or his sub-clan, the Dabarre, which could be regarded as part of a course of systematic conduct aimed at members of either group, including the [respondent], for reasons of their membership of the group."

34. It was further submitted that the Tribunal member saw a situation where there was a general risk due to clan warfare in a context of instability and anarchy but did not consider that the harm suffered by the applicant (in that context) could be characterised as persecution because it was not directed to him by reason of his membership of a particular social group. The Full Court of the Federal Court considered that the Tribunal had erred because it should have attempted to identify the "motivation" of the "civil conflict": Ibrahim per Gummow J at [128]. It considered that persons who feared harm from a civil war could be refugees if they faced a different risk, namely because the war was not just for power and resources but was motivated by a Convention reason: Ibrahim per Gummow J at [129].

35. Counsel submitted that a majority of the High Court in Ibrahim rejected the approach of the Full Court. It was wrong to require the Tribunal to determine the "motivation" of a "civil war" in order to determine whether a person was at a "differential risk". It was enough for the Tribunal to determine whether the particular experiences of the visa applicant were caused by persecution for Convention reasons, and in the light of those findings to consider whether at the time of the determination of the application there was a real chance of the visa applicant being persecuted by reasons of membership of the particular social group if he were to return to his country: Ibrahim per Gummow J at [148]. The majority considered that the Court had done that. It allowed the appeal and upheld the Tribunal's decision.

36. It was further submitted that in Ibrahim the Tribunal had looked at a situation of clan warfare and was not satisfied that that warfare revealed harm for a Convention reason. The Full Federal Court had wrongly said that it should have looked at the motivation of the war. However, that was unnecessary. The task was to characterise the motivation of the harm that had been suffered and was likely to be suffered upon return. Justice Gummow observed that other decision makers may have come to a different view about whether the harm suffered by the applicant should be characterised as having been for reasons of his membership of a particular social group (a clan). However, his Honour noted that this was a question of fact for the Tribunal and not an error of law (at [149]).

37. Counsel submitted that the respondent contended that Ibrahim supported the respondent's case. It was a question of fact for the Tribunal whether familial pressure should be characterised as being for a Convention reason. It found that it was not. No jurisdictional error was revealed. In that regard, the decision of Madgwick J in MMM was entirely consistent. (Contrary to the Court's finding in SZANS, the Minister contends that this Court is bound by the judgment in MMM.) The applicant claimed that he would start to receive strong pressure to marry from his family (CB p.65 [17]). It was open to the Tribunal to find that his family's expectation for him to marry were not motivated for Convention reasons. This was especially so when one bears in mind that they are unaware of his alleged homosexuality.

38. It was further submitted that the respondent also relies upon the decision of the Full Federal Court in Ram v Minister for Immigration as adopted by Gummow J in Applicant A v Minister for Immigration & Ethnic Affairs at 284-285:

"Accordingly, I agree with the following formulation by Burchett J in giving the judgment of the Full Federal Court in Ram v Minister for Immigration:

"Persecution involves the infliction of harm, but it implies something more: an element of an attitude on the part of those who persecute which leads to the infliction of harm, or an element of motivation (however twisted) for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. Not every isolated act of harm to a person is an act of persecution."

In par (2) of sA the notion of "fear of being persecuted" is confined by the use of the phrase "for reasons of". This serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. The reason for the persecution must be found in the singling out of one or more of five attributes, namely race, religion, nationality, the holding of political opinion, or membership of a particular social group.

... I agree with the statement in Ram:

"There must be a common unifying element binding the members together before there is a social group of that kind. When a member of a social group is being persecuted for reasons of membership of the group, he is being attacked, not for himself alone or for what he owns or has done, but by virtue of his being one of those jointly condemned in the eyes of their persecutors, so that it is a fitting use of language to say that it is 'for reasons of ' his membership of that group."

39. Counsel submitted that it was at least open for the Tribunal to find that the applicant's family would not impose pressure upon him to marry by reason of his membership of a particular social group. He was not being targeted for that reason: NAEB of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs. Even if the consequences of marriage upon him would be more adverse than for others who do not wish to marry, that does not affect the reasons of the alleged persecutors. It was submitted that the Court should not follow SZANS and should find that no jurisdictional error has been made out.

The hearing

40. Counsel for the applicant indicated that the applicant would be relying upon the amended application under s.39B of the Judiciary Act 1903 filed on 1 September 2004. Counsel for the respondent indicated that the respondent would rely upon the affidavit of Sharon Elizabeth Hanstein, Solicitor dated on 6 September 2004 and the affidavit of Sharon Elizabeth Hanstein, Solicitor sworn on 7 September 2004. Counsel sought that those respective documents be admitted into evidence.

41. Counsel for the respondent sought that the applicant enter the witness box for cross examination. The cross examination concentrated on the difference in names that the applicant used on the passport to enter Australia and that used on his application for a protection visa. The other issue centred on the original application lodged in February 1998 where there was no mention of the applicant's homosexuality and why the issue of homosexuality was raised in subsequent documentation.

Conclusion

42. Before considering the individual grounds contained in the amended application, I will consider the issue of abuse of process. The grounds for which the applicant sought a protection visa could have been advanced by him in his application filed in August 2000. On 1 August 2000, the applicant's new Solicitors, Parish Patience, filed a submission in which the applicant withdrew all of his original claims: CB p.65 [19] and, instead, claimed to be owed protection obligations by reasons of his membership of a particular social group comprising of homosexuals: CB p.159. The applicant retained the services of Parish Patience some time in the middle of 1999 as that firm wrote to the Tribunal on 17 June 1999 seeking access to their client's file under the Freedom of Information Act (CB p.40). A period of at least one year had passed from the time that Parish Patience were retained until the Tribunal was notified that the basis of the applicant's claim was substantially altered. There is no explanation provided as to why the applicant failed to tell Parish Patience about the falsity of his original claim for a year or alternatively why the Tribunal was not notified of this until just before the Tribunal hearing. It was drawn to my attention that the disclosure of this abandoned falsity would have had adverse consequences on the applicant's ability to work within Australia.

43. In a statutory declaration dated 22 July 2000, the applicant admitted that the name he had used in Australia, including all of his applications for a protection visa, was not his true name. He states in his declaration that he used it simply because he had been provided with a passport and visa in that name by a smuggler: CB p.62 [2] and p.63 [10]. The consequences of not disclosing the falsity of his name and passport, was that the applicant was able to acquire bridging visas which included a right to work: CB p.42. If that falsity had been disclosed the right to work would have been denied the applicant.

44. The affidavit of Sharon Hanstein indicates that the applicant filed an application in the Federal Court of Australia on 15 November 2000 for a review of the Tribunal's decision that is the subject of this present application. The proceedings were given Federal Court No: N1222/2000 and listed before the Honourable Justice Katz on 7 June 2001. On 31 May 2001 the proceedings were discontinued by consent.

45. The applicant then extended his stay in Australia by relying upon other grounds by joining the Lie Class Action. Even though that case was substantially successful, the applicant placed no reliance upon that case but sought to return to his original claims and did this even at a time before Appellant S395 had been decided.

46. The other issue to consider in the context of abuse of process is that the applicant arrived in Australia on a passport and a supporting visa not in his name but arranged for him by a smuggler. The applicant did not disclose the bogus documents and relied upon them in the making of the original protection visa application and subsequent bridging visas. The applicant continued to rely upon the bogus documents while knowing they were not true. This deception was relied upon when the applicant lodged his original protection visa application and the subsequent applications and procedures until he admitted in a subsequent statutory declaration the claims in relation to his identity were intentionally false.

47. The respondent contends that the application should be dismissed as an abuse of process and relief should be refused on discretionary grounds: NAWZ v Minister for Immigration & Multicultural & Indigenous Affairs.

48. I now turn to the two grounds of the application. The first of these relates to the discretion of the applicant that he would exercise to hide his sexuality for the fear of societal ostracism. Both Counsel took me to the decision of Appellant S395. However, I believe the submissions made by the respondent Counsel are the correct application of that decision when applied to the factual situation in the case before this Court. The Tribunal in its findings and reasons described a detailed examination of the applicant's circumstances in relation to this issue. Specifically, at page 24 of the Tribunal's decision (CB p.194) consideration is made as to whether it would be obvious to any third party.

49. When assessing this matter, I am guided by the comments of their Honours Kirby and McHugh JJ in the decision of Appellant S395 at [58]:

"It is a mistake to assume that because members of a group are or are not persecuted, and the applicant is a member of that group, the applicant will or will not be persecuted. The central question is always whether this individual applicant has a "well-founded fear of being persecuted for reasons of ... membership of a particular social group".

50. At [59]:

"It follows that whether or not a Bangladeshi male homosexual applying for a protection visa has a well-founded fear of persecution cannot be determined by assigning him to the discreet or non-discreet group of homosexual males and determining the probability of a member of that group suffering persecution. An applicant claiming refugee status is asserting an individual right and is entitled to have his or her claim considered as an individual, not as the undifferentiated member of a group."

51. At [60]:

"By declaring that there was no reason to suppose that the appellants would not continue to act discreetly in the future, the Tribunal effectively broke the genus of "homosexual males in Bangladesh" into two groups - discreet and non-discreet homosexual men in Bangladesh."

The Tribunal's analysis of this issue is clearly directed at the individual and not as an individual being a member of a particular group: (CB p.194).

52. In respect of the second ground the focus is on the issue of marriage. Both Counsel referred me to various authorities which address the pressure to marry for a homosexual would be persecutory. The Tribunal acknowledges that there is a social pressure for both males and females to marry and the extent of that pressure varies amount different social groups. The Tribunal acknowledges that the motivation to marry is based on cultural reasons rather than any Convention related motivation. The Tribunal depended upon country information to adopt the view that the applicant's cultural environment may wish for him to be married but he would not be targeted should this not occur or would the disinclination to marry be necessarily linked to his homosexuality. The Tribunal did not accept that any reluctance or refusal to marry would directly expose the applicant to persecution. Consideration was also given to any legal ramifications to which the applicant may be exposed should his homosexuality become known to the authorities. Although this decision making process has taken place without direct reference to the lines of authority raised by both Counsel, I believe the outcome of that decision making process would not have been different.

53. I acknowledge the detailed oral submissions made by Counsel in the presentation of this matter. However, I have not been swayed by argument nor have I been able to identify any ground that would establish that the Tribunal had committed any jurisdictional error. The applicant's claim should be dismissed.

54. I am satisfied that an order for costs should be made in this matter. I order the applicant to pay the respondent's costs and disbursements of and incidental to the application.

I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM.

Associate: Menna McMullan

Date: 11 November 2004
Australia Immigration Consultants and Online Australia Visa Assessments for immigration to Australia