FEDERAL COURT OF AUSTRALIA

SZQMT v Minister for Immigration and Citizenship [2012] FCA 840

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    The decision of Federal Magistrate Smith of 9 February 2012 is set aside.

3.    The decision of the Refugee Review Tribunal of 8 July 2011 is set aside.

4.    The matter is remitted to the Refugee Review Tribunal for determination in accordance with law.

5.    There is no order as to costs.

    Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    The Appellant is a citizen of India who arrived in Australia on 24 May 2010.

2    She applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa on 25 May 2010. Her husband was included in that application as a member of her family unit. A delegate of the Minister refused to grant the visas on 5 November 2010.

3    Separate applications for review were then made to the Refugee Review Tribunal by both the Appellant and her husband. Separate hearings were conducted by the Tribunal. On 8 July 2011 the Tribunal affirmed the decision not to grant the Appellant a visa.

4    The Appellant then sought review of the Tribunal’s decision by the Federal Magistrates Court. That Court dismissed the application on 9 February 2012: SZQMT v Minister for Immigration [2012] FMCA 101.

5    On 27 February 2012 the Appellant filed a Notice of Appeal in this Court. The Grounds of Appeal were there set out as follows (without alteration):

1.    The FM failed to consider that the Tribunal acted in a manifestly unreasonable way when dealing with the applicants claim and ignoring the aspect of persecution and harm in terms of Sec.91R of the Act. The Tribunal failed to observe the obligation amounted to a breach of Statutory Obligation.

2.    The Federal Magistrate failed to consider that the Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

6    A separate application for review by the Appellant’s husband resulted in the Tribunal’s decision being set aside and the application remitted for determination in accordance with law: SZQMR v Minister for Immigration and Citizenship [2012] FCA 122, 125 ALD 224.

7    In the present proceeding the Appellant appeared before the Court unrepresented. An interpreter assisted her throughout the hearing.

8    The appeal is to be allowed.

The Decision-Making Process

9    The Appellant’s application to the Department for a Protection visa simply stated that she left India because of “political issues”. The application further stated that “we will be killed” if she and her husband returned. In providing information as to who it would be that may harm or mistreat her if she returned, she stated: “Communist Party, RSS”. The application form further stated that “we have already faced the attacks several times”.

10    No further information was provided in the application made to the Department.

11    The Appellant and her husband, however, attended an interview with the Minister’s delegate. The Appellant then explained that she discovered as a young woman that she was homosexual and that this attracted publicity and two attacks on her family’s home. She further claimed that her father forced her to marry. The husband stated that he was also forced to travel because he would be killed if he did not separate from his wife.

12    The delegate characterised the Appellant’s claims as “implausible” and expressed “some doubts about the … claim that she is a lesbian …”. The delegate concluded that the Appellant did not have a “genuine fear of harm” and that there was no real chance of persecution occurring.

13    The present Appellant and her husband both made separate applications for review to the Refugee Review Tribunal. They were both separately interviewed by the Tribunal on 3 May 2011. The same Tribunal Member decided both applications.

14    The Tribunal’s reasons for decision set forth the claims made and the evidence relied upon. The Tribunal summarised the basis of the Appellant’s claim as follows:

[96]    The applicant claims that she is lesbian, having commenced sexual activity with fellow female students in high school. She claims that when her father heard rumours of her sexual conduct through the mother of one of her partners he arranged a marriage for her to quash the rumours and in an attempt to change her behaviour.

15    The Tribunal went on to form the view “… that the parties, whilst they currently live under the same roof do not share a marital relationship”. The Tribunal concluded that “… they live as good friends and the applicant husband seeks to support and assist the applicant”. The Tribunal further concluded:

[103]    The Tribunal does not make a finding that the applicant is lesbian. It accepts however that as a teenager she was attracted to fellow female students whilst studying at [high school] and later at [College]. It accepts that she engaged in sexual activity with three of her fellow students as she has claimed. The Tribunal accepts that her activity became known to other students, to members of the KCYM, and to the family of at least one of her partners. The Tribunal accepts that the applicant’s father then quickly sought to arrange a marriage for the applicant in order to deflect the rumours and to secure the good reputation of the applicant and the family. The Tribunal accepts that the applicant husband knew nothing of these matters when he entered into marriage with the applicant [in] February 2009.

16    The Tribunal determined that the Appellant’s past treatment in India amounted to serious harm for the purposes of s 91R(1)(b) of the Migration Act 1958 (Cth).

17    The Tribunal nevertheless proceeded to affirm the delegate’s decision because it concluded that it was “reasonable” for the Appellant to relocate within India. In so concluding the Tribunal said (without alteration save for removal of locations):

[110]    However, the Tribunal is of the view that it would be reasonable for the applicant to safely relocate elsewhere in India removed from her local area.

[111]    The focus of the Convention definition is not upon the protection that the country of nationality might be able to provide in some particular region, but upon a more general notion of protection by that country. The international community is not under an obligation to provide protection outside the borders of the country of nationality if real protection can be found within those borders. Therefore, even if an applicant has a well-founded fear of persecution in their home country, the Convention does not provide protection if they could nevertheless avail themselves of the real protection of their country of nationality elsewhere within that country: Rhandawa V MILGEA (1994) 52 FCR 437 per Black CJ at 440 -1.

[112]    Whilst the Tribunal has accepted that the applicant may continue to be perceived to be homosexual and harmed for that reason if she were to return to her area of [Suburb 1] or that of the applicant husband at [Suburb 2] the Tribunal is not satisfied that this perception will follow the applicant beyond the area of her locality. The applicant’s evidence at the hearing is that she continues to live with the applicant husband even at the present time in Australia. The Tribunal heard and accepts the reasons for this and these include a desire to convey the impression locally and more widely that the parties live together in a marriage relationship. This is largely due to the fact that they intend that the applicant’s father should continue in the belief that the marriage is sound and continuing. The Tribunal finds on the basis of the applicant’s evidence that she will continue to live in the marriage relationship for this same reason if she returns to India and to a location removed from her local area.

[113]    The applicant’s evidence at the hearing is that she has not sought to pursue any lesbian relationship or contact in Australia and she has not sought out any gay or lesbian location or websites here. She told the Tribunal and the Tribunal accepts that she accessed videos on the internet. She has not told any person in Australia that she is gay.

[114]    On the basis of all of the evidence before it the Tribunal has formed the view that the applicant will not seek to engage in same sex relationships in the future if she returns to India. It finds that, as in Australia she will continue to live with the applicant husband as she has done in the past in India and for some of the time she has been in Australia. The Tribunal finds that the essential and significant reason for this conduct on the part of the applicant is not attributable to any Convention ground. She told the Tribunal and the Tribunal accepts that she has remained in the marriage because she wants to act in what she sees as her father’s best interests giving the impression that the marriage is sound. At the hearing the applicant said that she could not safely relocate in India because the KCYM and Congress Party are represented outside [Suburb 4] and throughout India. The Tribunal finds that the source of the applicant’s difficulties in [Suburb 3] was specifically the KCYM membership in her parish. Likewise the Congress Party people were those from [Suburb 1] and [Suburb 2]. Their interest was such, only because the applicant husband had formerly been active there for the Party and ceased to be so after his marriage. In such circumstances the Tribunal finds that the interest of these particular groups will not extend beyond the localised areas mentioned.

[115]    The applicant has provided no persuasive reason as to why she would be unable to safely relocate elsewhere in India. As the Tribunal discussed with her at the hearing she is young, well- educated and resourceful. Furthermore, she has the support of the applicant husband who has shown himself willing to assist and support her from the time of the marriage. Nothing in the evidence of the parties at their hearings suggested that this will not continue if they return to India.

[116]    The Tribunal finds that if the applicant relocates to a different part of India there is no real chance that she will face harm by members of the KCYM or members and supporters of the Congress Party or indeed anyone else, for the reason that she is perceived to be a member of a particular social group or indeed for any other Convention related reason. On the basis of the evidence before it and having regard to the applicant’s circumstances overall the Tribunal is satisfied that it would be reasonable and practicable for the applicant to safely relocate to a different part of India.

A Manifestly Unreasonable Decision?

18    The Grounds of Appeal have been drafted in a manner which gives rise to considerable uncertainty. They mirror the Grounds of Appeal which were before the Court in the Appellant husband’s case: [2012] FCA 122 at [10], 125 ALD 224 at 226.

19    Contrary to the terms of the first Ground of Appeal, the reasons for decision of the Tribunal reveal that the Tribunal did consider the Appellant’s claims. The Tribunal did not “ignore[e] the aspect of persecution and harm in terms of Sec 91R of the Act”. Indeed, the Tribunal accepted that the Appellant’s “past treatment” amounted to “serious harm for the purposes of” s 91R(1)(b) of the Migration Act.

20    The reference in the second Ground of Appeal to “reasonable satisfaction” is presumably a reference to the requirement in s 36 of the Migration Act for the delegate or the Tribunal to be “satisfied” that the person claiming refugee status is a person to whom Australia owes protection obligations. As with the comparable Ground in the husband’s case, it is “unparticularised and vague”. In the husband’s case it was said to be “difficult to know exactly what the appellant means by it”: [2012] FCA 122 at [23], 125 ALD 224 at 229.

21    The Grounds of Appeal, it is respectfully considered, can be construed most favourably to the Appellant as a reference to the Tribunal having erred in concluding that “it would be reasonable and practicable for the [Appellant] to safely relocate to a different part of India”.

22    “What is ‘reasonable’, in the sense of ‘practicable’, must depend upon the particular circumstances of the applicant for refugee status and the impact upon that person of relocation of the place of residence within the country of nationality”: SZATV v Minister for Immigration and Citizenship [2007] HCA 40 at [24], 233 CLR 18 at 27 per Gummow, Hayne and Crennan JJ. See also: MZYPW v Minister for Immigration and Citizenship [2012] FCAFC 99 at [8] per Flick and Jagot JJ; MZYNA v Minister for Immigration and Citizenship [2012] FCA 159 at [38] per Gordon J; SZQEN v Minister for Immigration and Citizenship [2012] FCA 387 at [29] to [35] per Yates J. “[I]t may be reasonable for the applicant for a protection visa to relocate in the country of nationality to a region where, objectively, there is no appreciable risk of the occurrence of the feared persecution”: SZFDV v Minister for Immigration and Citizenship [2007] HCA 41 at [14], 233 CLR 51 at 55 per Gummow, Hayne and Crennan JJ.

23    In resolving the Appellant husband’s case, Collier J made reference to the decision in SZATV and to the following observations of Gummow, Hayne and Crennan JJ:

[32]    The effect of the Tribunal’s stance was that the appellant was expected to move elsewhere in Ukraine, and live “discreetly” so as not to attract the adverse interest of the authorities in his new location, lest he be further persecuted by reason of his political opinions. By this reasoning the tribunal sidestepped consideration of what might reasonably be expected of the appellant with respect to his “relocation” in Ukraine. It presents an error of law, going to an essential task of the tribunal. This was determination of whether the appellant’s fear of persecution was “well-founded” in the Convention sense and thus for the purposes of s 36(2) of the Act.

In applying that decision, her Honour said in respect to the Appellant husband’s claim that “… the tribunal has, like in SZATV, sidestepped proper consideration of the ability of the appellant to relocate in India”. That was concluded to be an error going to jurisdiction: [2012] FCA 122 at [21], 125 ALD 224 at 229.

24    Whatever may have been the result in the husband’s case, the Appellant’s appeal to this Court must be resolved by reference to the findings and reasons for decision of the Tribunal in respect to her own claim and, more specifically, the reasons for decision of the Federal Magistrate.

25    Four particular aspects of the Tribunal’s reasons in respect to the present Appellant, it is respectfully concluded, expose the fact that it “sidestepped” a proper consideration of the reasonableness of her relocating within India. Those four aspects are the following:

    the failure by the Tribunal to make a definitive finding as to whether the Appellant was a lesbian – the course adopted by the Tribunal was to explicitly “not make a finding” in this regard (at para [103]);

    the Tribunal’s finding that the Appellant will continue to live with her husband and that her reasons for doing so “… include a desire to convey the impression locally and more widely that the parties live together in a marriage relationship” (at para [112]);

    the finding that the Appellant “… will not seek to engage in same sex relationships in the future …” (at para [114]); and

    the finding that “the essential and significant reason for” the Appellant’s conduct was “not attributable to any Convention ground” (at para [114]).

Unlike the reasons provided by the delegate, the Tribunal did not seek to express any reservations about the Appellant’s claims and did not seek to characterise them (for example) as “implausible”. Perhaps the failure to make a finding regarding the Appellant’s sexuality reflects some doubt on the Tribunal’s part as to that claim; perhaps it is no more than the Tribunal believing that it was unnecessary to resolve the claim given its other findings of fact and the ultimate conclusion reached. But the reason why the Tribunal did not make a finding is left unstated.

26    In order for the Tribunal to address – rather than “sidestep” – the claims being made, an essential starting point was for it to consider at the outset whether the Appellant was in fact a lesbian. It may have been possible for the Tribunal to consider that claim and leave it unresolved. But to leave the claim unresolved would require it to explain why it concluded that she would not “seek to engage in same sex relationships” and outline the reasons for her conduct. In simply finding that she would “not seek to engage” in such relationships, the Tribunal failed to properly consider and resolve her claim. The Tribunal stated what it found to be the “the essential and significant reason” for the Appellant’s conduct; but it disturbingly left unstated whether there were also other “less essential” and “less significant” reasons for her conduct and – if so – what those other reasons may have been. Even a “less essential” or “less significant” reason may be sufficient to render relocation not “reasonable” in the Appellant’s circumstances. Whatever other “reasons” the Appellant may have had for her conduct were not taken into account when considering the “reasonableness” of her relocation. The Tribunal similarly identified one of the reasons why the Appellant would continue living with her husband but left unstated her other reasons for doing so.

27    The jurisdictional error in the present proceeding is that the Tribunal failed to resolve the claim made by the Appellant and its failure to consider that claim went to the “reasonableness” of her ability to relocate. Considerable care should be taken before endorsing an approach whereby the Tribunal can “sidestep” consideration of the reasons why a person may chose to pursue one course of conduct rather another and choose to not fully and openly practice (for example) a religious belief or one’s sexuality. To fail to consider those reasons may make a “mockery” of protected rights. See: Kendall, ‘Lesbian and Gay Refugees in Australia: Now that ‘Acting Discreetly’ is no Longer an Option, will Equality be Forthcoming?’ (2003) 15 International Journal of Refugee Law 715. Reliance by the Respondent Minister upon the decision in Applicant NABD of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 29, 216 ALR 1, it is respectfully concluded, is misplaced. Reliance was placed, in particular, upon the following observations of Hayne and Heydon JJ:

[168]    At no point in its chain of reasoning did the tribunal divert from inquiring about whether the fears which the appellant had were well founded. It did not ask … whether the appellant could avoid persecution; it asked what may happen to the appellant if he returned to Iran. Based on the material the tribunal had, including the material concerning what the appellant had done while in detention, it concluded that were he to practise his faith in the way he chose to do so, there was not a real risk of his being persecuted.

28    NABD, however, was a case which invited consideration as to what the Tribunal characterised as “conspicuous”, “aggressive” or “active” proselytising as opposed to a “quiet sharing of faith”. A requirement to proselytise was said not to be a core component of religious faith. The appellant in that case, it was held, could practise his faith – albeit not in a “conspicuous” manner – and not fear persecution. In the present proceeding the ability or freedom of the Appellant to practice her sexuality was not addressed. The appellant in NABD may have been able to practice his religious faith, but the ability or freedom of the present Appellant to practise her sexuality was not addressed. The distinction in NABD between “‘converts to Christianity who go about their devotions quietly and maintain a low profile [who] are generally not disturbed’ and persons involved in the ‘aggressive outreach through proselytising by adherents of some more fundamental faiths’”, was accepted by Gleeson CJ as being “far from clear-cut”: [2005] HCA 29 at [9], 216 ALR 1 at 4. The difficulty in the present proceeding was simply that the Tribunal failed to even embark upon the process of resolving whether the Appellant could “go about” practising her sexuality.

29    As explained by Gummow and Hayne JJ in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71, 216 CLR 473:

[80]    If an applicant holds political or religious beliefs that are not favoured in the country of nationality, the chance of adverse consequences befalling that applicant on return to that country would ordinarily increase if, on return, the applicant were to draw attention to the holding of the relevant belief. But it is no answer to a claim for protection as a refugee to say to an applicant that those adverse consequences could be avoided if the applicant were to hide the fact that he or she holds the beliefs in question. And to say to an applicant that he or she should be “discreet” about such matters is simply to use gentler terms to convey the same meaning. The question to be considered in assessing whether the applicant’s fear of persecution is well founded is what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences.

[81]    It is important to recognise the breadth of the assertion that is made when, as in the present case, those seeking protection allege fear of persecution for reasons of membership of a social group identified in terms of sexual identity (here, homosexual men in Bangladesh). Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense “discreetly”) may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality.

[82]    Saying that an applicant for protection would live “discreetly” in the country of nationality may be an accurate general description of the way in which that person would go about his or her daily life. To say that a decision-maker “expects” that that person will live discreetly may also be accurate if it is read as a statement of what is thought likely to happen. But to say that an applicant for protection is “expected” to live discreetly is both wrong and irrelevant to the task to be undertaken by the tribunal if it is intended as a statement of what the applicant must do. The tribunal has no jurisdiction or power to require anyone to do anything in the country of nationality of an applicant for protection. Moreover, the use of such language will often reveal that consideration of the consequences of sexual identity has wrongly been confined to participation in sexual acts rather than that range of behaviour and activities of life which may be informed or affected by sexual identity. No less importantly, if the tribunal makes such a requirement, it has failed to address what we have earlier identified as the fundamental question for its consideration, which is to decide whether there is a well-founded fear of persecution. It has asked the wrong question.

In failing to resolve the Appellant’s claim being advanced for consideration, namely her claims founded upon her asserted lesbian status, the Tribunal committed jurisdictional error.

30    Whether the Refugee Review Tribunal has in any particular case “sidestepped” a proper consideration of a claim being made will obviously depend upon the facts and circumstances of any individual case. Much may depend upon the particular facts and evidence advanced for consideration and whether findings of credibility in respect to that evidence are appropriate or warranted. Much may depend upon the extent to which the Tribunal pursues the factual basis upon which a claim is made during an interview with a claimant. See: Kneebone, ‘The Refugee Review Tribunal and the Assessment of Credibility: an Inquisitorial Role?’ 5 AJ Admin L 78. Much may also depend upon the reasons provided by the Tribunal for either accepting or rejecting a claim. There is also a very real prospect that minds may differ as to whether the Tribunal has in fact properly engaged with the claim being made and resolved that claim or whether it has, improperly, “sidestepped” that process. What is to be insisted upon is a consideration of the claim being advanced; what is to be shunned is an impermissible exercise of merits review under the guise of an assertion of jurisdictional error. The factual merits of the present application should be left to the Tribunal to now determine in accordance with law. No view is expressed as to those merits.

Conclusions

31    Jurisdictional error, it is concluded, has been exposed in the present reasons for decision of the Tribunal.

32    The Federal Magistrate accordingly erred in not setting aside the decision of the Tribunal.

33    The appeal should be allowed.

The Orders of the Court are:

1.    The appeal is allowed.

2.    The decision of the Federal Magistrate of 9 February 2012 is set aside.

3.    The decision of the Refugee Review Tribunal of 8 July 2011 is set aside.

4.    The matter is remitted to the Refugee Review Tribunal for determination in accordance with law.

5.    There is no order as to costs.

Associate:

Dated:    10 August 2012