Kabir v Minister for Immigration & Multicultural Affairs [2002] FCAFC 20 Kabir v Minister for Immigration & Multicultural Affairs [2002] FCA 129 NOTE: CHANGES TO THE MEDIUM NEUTRAL CITATION (MNC) The Federal Court adopted a new medium neutral citation (FCAFC) for Full Court judgments effective from 1 January 2002. Single Judge judgments will not be affected and will retain the FCA medium neutral citation. The transitional arrangements are as follows: * All Full Court judgments delivered prior to 1 January 2002 will retain the FCA medium neutral citation. * All Full Court judgments delivered between 1 January 2002 to 30 April 2002 have been assigned parallel medium neutral citations in both the FCA and FCAFC series. * All Full Court judgments delivered from 1 May 2002 will contain the FCAFC medium neutral citation only. FEDERAL COURT OF AUSTRALIA Kabir v Minister for Immigration & Multicultural Affairs [2002] FCA 129 MIGRATION: Appeal – no error in primary judge's reasons. Migration Act 1958 (Cth) ss 430(1)(a), 476 Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1 applied Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 referred to Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 referred to Oo v Minister for Immigration & Multicultural Affairs [2001] FCA 348 referred to Applicant LSLS v Minister for Immigration & Multicultural Affairs [2000] FCA 211 referred to Minister for Immigration & Multicultural Affairs v Guan [2000] FCA 1033 referred to Md Jahangir Kabir & Anor v Minister for Immigration & Multicultural Affairs N1194 of 2001 BLACK CJ, TAMBERLIN & ALLSOP JJ 22 FEBRUARY 2002 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1194 of 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: Md JAHANGIR KABIR FIRST APPELLANT SYED FAZLUR RAHMAN SECOND APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, TAMBERLIN & ALLSOP JJ DATE OF ORDER: 20 FEBRUARY 2002 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. the appeals be dismissed; and 2. the appellants pay the respondent's costs. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N1194 of 2001 ON APPEAL FROM A SINGLE JUDGE OF THE FEDERAL COURT OF AUSTRALIA BETWEEN: Md JAHANGIR KABIR FIRST APPELLANT SYED FAZLUR RAHMAN SECOND APPELLANT AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS RESPONDENT JUDGE: BLACK CJ, TAMBERLIN & ALLSOP JJ DATE: 22 FEBRUARY 2002 PLACE: SYDNEY REASONS FOR JUDGMENT THE COURT: 1 On 20 February 2002 the Court dismissed the appeals of the appellants with costs. These are the reasons for those orders. The appeal is from an order of a Judge of the Court dismissing an application for review of a decision of the Refugee Review Tribunal (the Tribunal). The Tribunal affirmed a decision of a delegate of the respondent rejecting the claims of the appellants for protection visas under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (which together we will refer to as the Convention). 2 The two appellants are Bangladeshi men who have been in a homosexual relationship since 1994. The Tribunal accepted that homosexual men in Bangladesh constitute a particular social group under the Convention. 3 The appellants entered Australia on 19 February 1999 and applied for protection visas on 4 March 1999. Their applications were refused on 23 April 1999. The Tribunal conducted a hearing of both applications on 21 February 2000. On 22 February 2001 the Tribunal affirmed the delegate's decisions giving one set of reasons. A single application for review was filed in this Court. 4 The primary judge set out at [9] what had been described by the Tribunal as "The Main Issues". These were: Mr Kabir and Mr Rahman are homosexuals. They claim that they have been ostracised by their families because of this and that people in the area where they lived attacked them and a fatwah (judgement by a local religious council) was issued condemning them to death when their sexual preference became known. They fear that they will be killed or face other serious harm if they return to Bangladesh. For the purposes of this decision, I accept that homosexual men in Bangladesh constitute a particular social group under the Convention. The issues which remain to be determined are whether the claims made by Mr Kabir and Mr Rahman are credible and whether their fears of persecution for reasons of their membership of the particular social group of homosexual men in Bangladesh are well-founded. Mr Kabir and Mr Rahman lodged separate applications, but agreed to have their cases heard jointly. Because their claims are closely linked, I have written a joint decision for their cases. However, I have considered them separately, taking into account all of the evidence relating to each case. 5 The primary judge then noted that the Tribunal examined country information in connection with the situation of homosexual men in Bangladesh. After this review of relevant country information, the Tribunal made the following findings, as identified by the primary judge at [10]: 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. However, Bangladeshi men can have homosexual 'affairs' or 'relationships', provided they are 'discreet'. Bangladeshis generally prefer to deny the existence of homosexuality in their society and, if possible, will ignore rather than confront it. It is also clear that the mere fact that two young men held hands or hugged in the street would not cause them to be seen as homosexuals, and that being caught 'engaging in sexual activity on one occasion' would be most unlikely to cause a young single man to be 'labelled a homosexual'. 6 The primary judge noted the following at [11]: The RRT proceeded to address the "Claims and Evidence" relevant to each applicant. I do not find it necessary to summarise the RRT's account. The applicants claimed to have met in July 1994 and to have lived together from October 1994 to date. They said they were ostracised by their families because of their homosexuality. A particular claim was that on 12 July 1998 a number of local people stopped them in the street and questioned them about their relationship then kicked and beat them and destroyed their possessions in their flat. Another particular claim was that local fundamentalists issued a fatwah (a judgment made by a Salish or local religious council) against them to the effect that they should be stoned to death. 7 The Tribunal set out the claims and evidence of the appellants at some length. It suffices to say that the claims of the appellants were not that they were forced to be discreet in their sexuality or relationship and that that necessity in some way, of itself, in the context of their lifestyle, amounted to persecution; rather, they claimed that others had learnt of their homosexuality, that they had been physically mistreated and that they feared further mistreatment and the potentially fatal consequences of a fatwah. 8 The primary judge noted at [12] the very limited favourable findings of the Tribunal about the appellants were as follows: I accept that Mr Kabir and Mr Rahman are homosexuals and that they have lived together since 1994. I also accept that they have been ostracised by their families, Mr Rahman since the 1980s and Mr Kabir since 1994. However, apart from ignoring them, their families have done nothing else to harm them. And despite being ostracised by their families, they have been able to obtain and keep good jobs, find accommodation and lead relatively normal lives. In these circumstances, while being ostracised by their families is no doubt very distressing for both men, it does not constitute persecution under the Convention. I found much of the evidence given by both men regarding the problems which they faced during their time together to be lacking in credibility. 9 The primary judge then noted that there followed a series of rejections by the Tribunal of particular claims and evidence made by the appellants. Those rejections were, in effect, all the other factual claims by the appellants. The rejections were based on the perceived lack of credibility in the evidence. We do not think it necessary to list all the evidence and claims rejected by the Tribunal over three pages of reasons. However, in particular, the Tribunal did not accept that Mr Rahman was dismissed from his job in 1980 because of sexual contact with men in his then office, that he was unable to find work between 1980 and 1991 because of his homosexuality, that he was sentenced to 300 lashes in 1985, that he and his then partner were tried and sentenced in a religious court in 1985, that he and his then partner were attacked in their home in 1990 and that he and Mr Kabir, having forgotten to shut the door, were seen having sex in their home. As to Mr Kabir, the Tribunal did not accept Mr Kabir's evidence that people in Shantipura knew that he and Mr Rahman were homosexual, that they had been taunted and harassed in their home and that he had complained to the police. The Tribunal rejected the evidence of both appellants that they were attacked on the street in July 1998 and forced to leave their home and that a fatwah had been issued against them. 10 One of the matters dealt with by the Tribunal in this series of rejections concerned the matter of the police. The primary judge considered this at [13] where he said: There followed a series of rejections by the presiding Member of particular claims. One of present interest is the following: "…given the attitude towards homosexuals in Bangladesh, of which Mr Kabir was clearly aware, it is not plausible that he would have told the police he was being harassed because he was a homosexual. He might have complained about being harassed, but I do not believe he would have told the police that he was a homosexual." Counsel for the applicants relies on this passage as demonstrating an implicit finding that the police shared "the attitude towards homosexuals in Bangladesh" and would not have protected Mr Kabir or would themselves have harmed him if he had revealed his homosexuality, and that Mr Kabir knew this to be the case. Counsel for the applicants submits that such an implicit finding is consistent with the presiding Member's summary of the independent country information set out earlier. I accept this submission, but discuss its significance later. 11 It is important to understand the context in which the Tribunal made the above comment. The immediately preceding part of the paragraph read as follows: I do not accept Mr Kabir's claim that people in Shantipura knew that he and Mr Rahman were homosexuals because of the manner in which he dressed, nor that they were taunted and harassed in their home by these people, nor that he complained to the police. These claims were contradicted by Rahman and I do not believe that Mr Rahman would have failed to tell me if he and Mr Kabir had faced these problems in Shantipura. Furthermore, given the attitude towards homosexuals in Bangladesh, of which Mr Kabir was clearly aware, it is not plausible that he would have told the police he was being harassed because he was a homosexual. …[embolding added] 12 Thus, the Tribunal found that Mr Kabir had not complained to the police. It did so because of the view it took as to his truthfulness, and the fact that his evidence was contradicted by Mr Rahman. The question as to the improbability of Mr Kabir going to the police was corroborative of the factual finding already made. His Honour dealt with this further at [20] in his reasons. We return to this at [25] below. 13 His Honour recorded at [14] the conclusions of the Tribunal as follows: 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'. However, it does not suggest that a fatwa such as this would be issued. After considering all of the evidence, I accept that Mr Kabir and Mr Rahman are homosexuals and that they lived together in Bangladesh from 1994 until their departure from the country in early 1999. I also accept that they were shunned by their families because of their homosexuality. They may also have been the subject of gossip and perhaps even some taunts from neighbours who suspected they were homosexuals. However, I do not believe that this constitutes serious harm amounting to persecution under the definition. Mr Kabir and Mr Rahman did not experience serious harm or discrimination prior to their departure from Bangladesh and I do not believe that there is a real chance that they will be persecuted because of their sexuality if they return. As discussed above, while homosexuality is not acceptable in Bangladesh, Bangladeshis generally prefer to ignore the issue rather than confront it. Mr Kabir and Mr Rahman lived together for over 4 years without experiencing any more than minor problems with anyone outside their own families. They clearly conducted themselves in a 'discreet' manner and there is no reason to suppose that they would not continue to do so if they returned home now. 14 The primary judge first analysed what was said to be an inconsistency between, on the one hand, the clear general findings about the lack of acceptance of homosexual men in Bangladesh and the fact that the applicants were homosexual and, on the other hand, the rejection of the claims of actual persecution and of a lack of well-founded fear of persecution if they were to return. 15 In this respect, as was made clear by his Honour, the findings of the Tribunal referred to in [5] above were central. We agree with the way his Honour read this paragraph of the Tribunal at [17] of his reasons: Reading the passage in question fairly in the light of the summary of the independent country information which preceded it and in the light of the passage from the RRT's Reasons set out at [14] above, I think the RRT was distinguishing between a relationship which is perceived as challenging the values and mores of Bangladeshi society, and one which is not. The key to the distinction is, as the presiding Member found in the passage in question: "Bangladeshis generally prefer to deny the existence of homosexuality in their society and, if possible, will ignore rather than confront it." It is only if a homosexual couple force Bangladeshi society to confront their homosexual identity that they will encounter problems. I think the word "relationships" in the passage set out in [10] above was intended to include long-term relationships as well as transitory ones. That this was the RRT's intention is indicated by what it said in the passage set out at [14] above. 16 Into this framework must be placed the findings of the Tribunal referred to in [13] above, which demonstrate that the appellants had conducted themselves in a manner which had not attracted any persecution in the past, and which lay the foundation for the findings of a lack of well-founded fear of persecution if they were to return to Bangladesh. 17 The Notice of Appeal identifies the following four grounds of complaint: 1. The trial judge erred in failing to find that the Tribunal had failed to find the material facts of the case. 2. The Tribunal (as constituted by [name supplied]) found the applicants are homosexual and on the contrary the tribunal held that there is no persecution against them. This inconsistency was not considered by the Honorable trial judge. 3. The Honorable trial judge erred considering the social and religious order prevailing in Bangladesh, where homosexual people are facing serious harm which would amount to persecution. 4. Tribunal made comment "Bangladeshi generally prefer to deny the existence --- than confront" is not based on any authorities and the trial judge was also influenced by this without any authorities; hence he erred. 18 To the extent that ground 1 is an attempt to invoke para 430(1)(a) of the Migration Act 1958 (Cth) (the Act) it must fail in the light of Minister for Immigration & Multicultural Affairs v Yusuf (2001) 180 ALR 1. 19 Grounds 2, 3 and 4 were developed in the written submissions filed on behalf of the appellants. The first matter raised is whether the approach of the Tribunal involved a failure to grapple with what was said to be a central question – whether the material which led the Tribunal to the conclusions it reached was of itself demonstrative of persecution in demanding discreet behaviour from homosexual people, that is behaviour not likely to confront society. Put another way, it was asserted that the persecution lay in being unable to live openly a life based on their own sexuality and in the necessity (in order to avoid society's violence) to live discreetly and without confronting that society. 20 The overwhelming difficulty with this assertion is that it did not found the claims of these appellants before the Tribunal. They gave evidence of actual persecution and of a real fear of return based on the apprehension of violence and the pronouncement of a fatwah. All this evidence was rejected. It was found that they had lived their lives in a way which had not attracted any persecution and which would not likely do so. They did not claim that they had been forced to live their lives in a manner different to that which they wished to live. His Honour recognised this at [19] of his reasons when he said: The applicants did not complain that they had to modify their behaviour so as not to attract attention: cf Cho v Minister for Immigration & Multicultural Affairs [1998] FCA 1663 (Madgwick J); Win v Minister for Immigration & Multicultural Affairs [2001] FCA 132 (Madgwick J) at [25]-[26]; Oo v Minister for Immigration & Multicultural Affairs [2001] FCA 348 (Lindgren J) at [42]-[48]. Apparently, therefore, they lived together in the way in which they wished to do. In sum, in living together in the way in which they did, they were naturally "discreet" and not "open", according to the meanings those words had for the RRT. 21 Reference was made in written submissions to Applicant LSLS v Minister for Immigration & Multicultural Affairs [2000] FCA 211 and Minister for Immigration & Multicultural Affairs v Guan [2000] FCA 1033. These decisions take the discussion of the relevance of modification of behaviour no further than the cases cited by the primary judge. 22 We leave to one side whether modifying behaviour in order not to attract attention and so to prevent persecution would itself constitute persecution such as to found a claim under the Convention. That was not the case of these appellants. They did not put this case forward to the Tribunal and it would be wrong to allow it to be raised now in an appeal from an application for judicial review. 23 The balance of the written submissions put forward on behalf of the appellants are really an attempt to challenge the fact finding of the Tribunal and an invitation to this Court to make up its own mind about whether the appellants will face persecution upon their return to Bangladesh. That is not the function of this Court in an application for judicial review. 24 In oral submissions, Mr Bharati indicated that there was evidence which was not put before the Tribunal but which could have supported the truth and accuracy of the evidence of the appellants. No basis was identified by him for the proposition that some error of procedure or law recognisable within s 476 of the Act led to the failure to call available evidence. 25 Finally, before the primary judge some emphasis was placed on the Tribunal's finding about Mr Kabir's claim that he went to the police: see [10] to [12] above. It was put that the Tribunal's approach reflected an illogicality, inconsistency and unreasonableness sufficient to be elevated to an error of law within s 476 of the Act. His Honour dealt with this at [20] of his reasons. We agree with him. The passage of the Tribunal (see [10] above) is contained in part of the Tribunal's dealing with the credit of Mr Kabir – see [11] and [12] above. For the reasons given by his Honour, there was no illogicality in reasoning. In those circumstances it is not necessary to discuss the matters raised by the authorities referred to by the primary judge in the passage quoted at [20] above. 26 It is for these reasons that we concluded that no error has been demonstrated in the judgment of the primary judge and ordered that the appeals should be dismissed with costs. I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Court. Associate: Dated: 22 February 2002 Solicitor for the Applicant: Mr C Bharati Counsel for the Respondent: Mr S Lloyd Solicitor for the Respondent: Blake Dawson Waldron Date of Hearing: 20 February 2002 Date of Judgment: 22 February 2002