FEDERAL COURT OF AUSTRALIA Minister for Immigration & Multicultural Affairs v B [2000] FCA 930 IMMIGRATION – Application for review of decision of Refugee Review Tribunal – Claim for protection visas by two Bangladeshi nationals – Applicants claimed to be refugees on the basis of fear of persecution by reason of perceived political opinion and membership of a particular social group – One applicant was the nephew of an active opponent of Bangladesh's governing political party - Tribunal accepted there was a real risk of persecution of this applicant by reason of the uncle's activities – The Tribunal found the two visa applicants were in a stable homosexual relationship – Tribunal accepted that, if both applicants returned to Bangladesh, the second applicant was at risk, because of his relationship to the first applicant, of persecution on account of perceived political opinion – Tribunal found that, if the two applicants returned to Bangladesh, there would be pressure on them to marry, so causing a disruption of their relationship; and held this was persecution on account of their membership of a particular social group (homosexuals) – Tribunal did not consider what would be the position if one applicant returned to Bangladesh and the other did not – Whether this was an error of law. PRACTICE – Competency of application - Effect of joinder of unnecessary party – Whether rights to relief against both parties arose out of "the same … series of transactions" Migration Act 1958, s478 Federal Court Rules, Order 6 rule 2. Migration Regulations, regs 1.12, 1.15A and 866.211 Payne v Young (1980) 145 CLR 609 distinguished Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155 referred to Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611 followed MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS v "B" N149 of 2000 WILCOX J SYDNEY 11 JULY 2000 IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N149 of 2000 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: "B" Respondent JUDGE: WILCOX J DATE OF ORDER: 11 JULY 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The decision of the Refugee Review Tribunal, given on 28 January 2000 in respect of application for review N98/24186, be set aside and the said application remitted to the Tribunal for further hearing and determination according to law. 2. The respondent (the applicant in application for review N98/24816) pay one half of the costs incurred by the applicant, Minister for Immigration and Multicultural Affairs, in respect of this proceeding. 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 N149 of 2000 BETWEEN: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS Applicant AND: "B" Respondent JUDGE: WILCOX J DATE: 11 JULY 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 WILCOX J: This is a disturbing case. The effect of the principal contention put to the Court, on behalf of the Minister for Immigration and Multicultural Affairs, is that the law governing the discharge of Australia's responsibilities under an international Convention mandates discrimination against persons living together in a homosexual relationship, as compared with persons in a heterosexual relationship of similar stability and duration. The background facts 2 On 28 January 2000 the Refugee Review Tribunal ("the Tribunal") issued a document entitled "Decisions and Reasons for Decisions" in respect of applications for protection visas made by two Bangladeshi men, whom I will call "Mr A" and "Mr B". 3 The two men arrived in Australia together in 1997. Shortly afterwards, they each lodged applications for protection visas under the Migration Act 1958 and the regulations made thereunder. A delegate of the Minister considered, and refused, both applications. Both applicants sought review of the refusals by the Tribunal. 4 In December 1999 and January 2000, a member of the Tribunal conducted a hearing involving both applications for review. As stated, he ultimately issued a single document covering both cases. The Tribunal remitted the applications for protection visas to the Minister with a direction that both applicants are persons to whom Australia has protection obligations under the 1951 Convention relating to the Status of Refugees, as amended by the 1967 Protocol relating to the Status of Refugees; in other words, he found that each applicant is a "refugee" within the meaning of those documents. 5 On 25 February 2000 the Minister filed an Application in this Court in which he named both protection visa applicants as respondents. The Application stated only one ground: "the decision (sic) involved an error of law, being an error involving an incorrect interpretation of the applicable law or an incorrect interpretation of the law to the facts as found by the person who made the decision". Particulars were provided, as follows: "The Tribunal erred in considering the claims of the Respondent, (Mr B) in that its decision was premised on the false assumption that (Mr B) and (Mr A) would succeed or fail together. As a result, the Tribunal failed to address the question whether (Mr B) had a well-founded fear of persecution in circumstances where (Mr A) would not be returning to Bangladesh with him (namely, because his protection visa application had succeeded)." It will be noted that, although Mr A was named as first respondent to the Application, the particulars confined the Minister's complaint of error of law to the decision - or, if there was only one decision, that aspect of the decision – affecting Mr B. 6 By the time the matter came before me for directions, on 18 April 2000, the Minister's advisers had apparently decided the joinder of Mr A was inappropriate. On that day, they sought and obtained an order removing the first respondent as a party to the proceeding and identifying the second respondent merely as "B". The respondents consented to that order, without prejudice to their right to contend that the joinder of Mr A as respondent had the effect that the proceeding was not properly commenced. The solicitors for the respondents had filed a Notice of Motion seeking enlargement of the time for objecting to the competency of the proceeding, and, on 7 April 2000, they had filed a Notice of Objection to Competency. I postponed argument about competency to the hearing of the substantive proceeding, which I fixed for 21 June 2000. 7 On 16 May 2000, the solicitor for the Minister filed an Amended Application naming only Mr B as respondent and repeating the substance of the ground, and its particulars, set out in the original Application. The objection to competency 8 When the matter came on for hearing, Mr David Godwin, counsel for Mr B, pressed his client's objection to competency. He pointed out that s478 of the Migration Act requires an application for review of a decision of the Refugee Review Tribunal to: "(a) be made in such manner as is specified in the Rules of Court made under the Federal Court of Australia Act 1976; and (b) be lodged with a Registry of the Federal Court within 28 days of the applicant being notified of the decision." 9 Mr Godwin also pointed out that Order 6 rule 2 of the Federal Court Rules permits the joinder of two or more persons as applicants or respondents in any proceeding: "(a) where – (i) if a separate proceeding were brought by or against each of them, as the case may be, some common question of law or of fact would arise in all the proceedings; and (ii) all rights to relief claimed in the proceeding (whether they are joint, several or alternative) are in respect of or arise out of the same transaction or series of transactions; or (b) where the Court gives leave so to do." 10 Mr Godwin said the original Application did not comply with this rule; if a separate proceeding had been brought against each of Mr A and Mr B, it could not have been said that all rights to relief claimed in the proceeding were in respect of, or arose out of, the same transaction or series of transactions. Mr Godwin argued that any right to relief against Mr A arose out of the decision on his application for a protection visa; any right to relief against Mr B arose out of the decision in respect of his application. Although both applications were lodged at the same time, and processed together at both delegate and Tribunal stage, Mr Godwin contended they did not even fall within "the same … series of transactions". In support of that proposition, Mr Godwin cited the decision of the High Court of Australia in Payne v Young (1980) 145 CLR 609. 11 Mr Godwin further contended that compliance with Order 6 rule 2 was mandatory, if there was to be a valid application for review of a Tribunal decision in this Court. He referred to Yong v Minister for Immigration and Multicultural Affairs (1997) 75 FCR 155. In that case a Full Court accepted that an Application filed in the Court outside the period of 28 days specified in s477(2) of the Migration Act was irremediably incompetent. However, resolving a matter that had generated conflicting first instance decisions, the Full Court held it was permissible, after the expiration of the 28 day period, to amend an Application filed within that time in order to join the Minister as a party. 12 I think the Application filed in the present case was competent. I am not sure it would have offended Order 6 rule 2(a). It is difficult to see why a separate proceeding would ever have been brought against Mr A, or why he was initially named as a respondent in this proceeding. The relief claimed in the original Application did not affect the decision of the Tribunal in his favour; indeed, it was founded on the proposition that his protection visa application had succeeded. So it seems to me he was always an unnecessary party. If there was any justification for his joinder, it can only have been on the basis that he was a person interested in what was seen as a single decision of the Tribunal, covering both protection visa applicants, and was therefore entitled to oppose any application that impugned its validity. On that basis, the proceeding raised a question of law common to the positions of both men. Moreover, I would have thought, the right to relief against each of them, although directly affecting only Mr B, arose out of the same "series of transactions", namely the two applications. 13 In Payne v Young the High Court held by majority (Barwick CJ, Stephen and Mason JJ, Murphy J dissenting) that an action by seven plaintiffs against eight defendants claiming declarations as to the invalidity of Western Australian regulations levying meat inspection fees, and orders for recovery of the fees each of them had paid, was not an action in respect of a "right to relief in respect of, or arising out of, the same transaction or series of transactions". The reason was that different sums were claimed by each of the plaintiffs, involving different defendants or combinations of defendants. 14 There may be a question whether the High Court would today decide Payne v Young in the same way: see the more recent unanimous decision of the High Court in Carnie v Esanda Finance Corporation Limited (1995) 182 CLR 398. However, Carnie did not expressly overrule Payne v Young, so I assume the latter case is still good law. Even so, it seems to me not to help Mr Godwin's argument. There is a world of difference between a claim by seven plaintiffs for varying sums of money arising out of fees paid by one or more of them at different times, to one or more of eight defendants, and a claim against two visa applicants in respect of similar applications lodged by each of them at the same time, relying on the same set of facts and considered and decided by the same tribunal at the same time. 15 In any event, there are at least two other answers to Mr Godwin's argument. First, it is apparent from the terms of Order 6 rule 2 itself that non-compliance with para (a) of that rule does not mean there is no competent application before the Court. Paragraph (b) envisages the Court may give a party leave to join two or more persons as applicants or respondents notwithstanding non-compliance with para (a). That could only happen if the proceeding were well-commenced, in the sense that the Court's jurisdiction has been enlivened. It follows that Order 6 rule 2 cannot be interpreted as depriving the Court of jurisdiction to hear and determine an Application that fails to comply with para (a). 16 Second, it is necessary to bear in mind some points made by Kiefel J in Rishmawi v Minister for Immigration and Multicultural Affairs [1999] FCA 611. The applicant in that case wrote to the Court, within the requisite 28 period, making "a formal application to the Federal Court for a review of the [Refugee Review] Tribunal's decision". She did not specify the grounds of her application as required by Form 56, prescribed under Order 54B rule 2 of the Federal Court Rules. At the hearing of the application, counsel for the Minister raised the possibility of absence of jurisdiction. In her reasons for judgment, Kiefel J dealt with this matter in the following way: "It is necessary, in the first place, to observe that the Migration Act does not make the Court's jurisdiction dependent upon fulfilment with any condition set by it, save that with respect to the time for the bringing of an application (s478(1)(b) and s478(2)). Otherwise, s478(1)(a) provides that an application to the Court for review must be made in such manner 'as is specified in the Rules of Court'. A reference to the rules is of course to all of the rules and would include rules which permit waiver of non-compliance. Order 54B r2 of the Federal Court Rules provides that an application to review a judicially reviewable decision under the Migration Act must be in accordance with Form 56. This was clearly not done here. That form provides for the grounds for the application to be specified, the respondent to be named, and the claim for relief made. Other requirements are that the date of notification of the judicially reviewable decision be specified (O 54B r2(2)); and particulars be given of any allegation of fraud, bad faith or actual bias (r2(3)). It is not suggested that is appropriate here. Order 1 r8 permits the Court to dispense with compliance with any requirement of the rules 'either before or after the occasion for compliance arises'. Provisions such as this enable the Court, when faced with a failure to comply with the rules, to excuse that non-compliance without having first to decide whether the jurisdiction conferred by the rules apply: see Metroinvest Anstalt v Commercial Union Assurance Co Ltd [1985] 1WLR 513, 518. That would seem to me to overcome the concern expressed by the Minister, that failure to comply with the requirements relating to the application itself may have withheld jurisdiction and rendered impossible the application of the rules." 17 It will be noted that her Honour distinguished a case where no application was filed within the stipulated 28 day period. In this, with respect, she was obviously correct. Section 478(2) of the Migration Act expressly forbids the Court to make an order allowing, or having the effect of allowing, an applicant to lodge an application outside the 28 day period; that is, an order excusing non-compliance with para (b) of s478(1). There is no similar prohibition in relation to non-compliance with para (a). 18 Kiefel J thought the situation in Rishmawi did not raise a question of substantial compliance she said: "I was referred by the Minister to decisions in which a test of substantial compliance has been applied (see for example Liu v Minister for Immigration and Multicultural Affairs (1997) 72 FCR 345, 348). Davies J considered that it was appropriate in that case, because there was only one omission. I do not think that such a test is either necessary under O 1 r8 nor appropriate here. True it is that O 54B is cast in mandatory language, but O 1 r8 is expressed in wide discretionary terms allowing waiver where there has been no compliance at all. It may be contrasted with provisions such as O 1 r7(2) which provides that it shall be sufficient compliance with the rules as to the form of any document if the document is substantially in accordance with the requirement or has only such variations as the nature of the case requires. That is a provision which permits compliance to be achieved; O 1 r8 is concerned with dispensation where compliance can not be." 19 In view of the dismissal of Mr A as a respondent to the present proceeding, it is not necessary for me to give leave to the applicant to join both Mr A and Mr B as respondents in one proceeding. However, if this had been necessary, in order to rescue the proceeding from contravention of Order 6 rule 2, I would have given leave. 20 The objection to competency fails. The substantial point: the Tribunal's reasoning 21 In order to appreciate the submissions of counsel in relation to the point of substance, accurately identified in the Application and amended Application, it is necessary to refer at some length to the Tribunal's reasons for decision. 22 Both Mr A and Mr B based their claims to refugee status on two fears: persecution on account of political opinion and persecution on account of membership of a particular social group (homosexuals). 23 Mr A's claim in relation to political opinion stemmed partly from his membership of an opposition political party, the Bangladesh Nationalist Party ("BNP"), but, more particularly, from the fact that an uncle was a prominent member of this party and an active opponent of the Bangladeshi government, led by the Awami League ("AL"). The Tribunal was satisfied that Mr A enjoyed a close relationship with his uncle, to whom he was similar in appearance. The Tribunal accepted that the uncle had been subjected to harassment over some years, on account of his political activities. To escape further harassment, at one stage the uncle fled Bangladesh; but, later, he returned in order to continue his opposition to the AL. He was arrested on charges of terrorism, illegal arms possession and murder. He had already been imprisoned for four years awaiting trial. In his reasons for decision, the Tribunal member said he had searched a number of data bases for information about the uncle but had not found any reference to him being a terrorist that was not sourced to government-controlled or AL-supporting media. 24 The Tribunal member noted that the uncle's sister and two brothers had been victims of violence; he seemed to accept the possibility (at least) that this arose out of their relationship with the uncle. The member said: "The Tribunal notes a trend in alleged attempts by the AL to harm close male relatives of (Mr A's) uncle, persons similarly situated with (Mr A) himself, from whom he is apparently not far apart in age." (Original emphasis) 25 The Tribunal member accepted that Mr A has been an active supporter of BNP and that, as such, "he would meet with degrees of opposition from supporters of the governing AL". He did not accept "that serious mistreatment will normally be meted out by all AL activists on all BNP activists". However, he did accept that "charismatic and outspoken BNP activists with particularly high profile histories, like (Mr A's) uncle … are being targeted for persecution by agents of or for the party currently in power in Bangladesh, and may also be targeted by it during its times of opposition". Importantly, the Tribunal also accepted "that such serious mistreatment can extend to close relatives of such charismatic opposition figures". 26 The Tribunal member went on: "The Tribunal accepts the close familial and political link between (Mr A) and his uncle and gives weight to the credible evidence in this case of efforts to cause serious assault to close relatives of that uncle, including two of his brothers and a sister. The Tribunal accepts that the source of these attacks is, if not precisely the same persons in each instance, probably linked with or supportive of the AL, which is obviously the author of the propaganda against (Mr A's) uncle. The proliferation of attacks, mostly upon adult male relatives close in age to (Mr A's) uncle, is accepted as evidence that the authorities have not maintained appropriate levels of protection of (Mr A's) family. The evidence in the Swedish publication about the attack on (Mr A's) aunt is accepted as evidence that the authorities are probably complicit in all of these attacks and that state protection would therefore have been unavailable to the victims. The Tribunal gives weight to the fact that all of these attacks occurred after the arrest of the uncle. This fact adds to the Tribunal's perception of the perpetrators having attacked as though they considered themselves licensed to do so, due to the political and 'criminal' pariah status of (Mr A's) uncle. The Tribunal accepts that had (Mr A) remained in Bangladesh in the last three years, the chance of his being assaulted or killed too, by agents of the AL with the tacit or active support of the authorities, would not have been remote. Since the most recent serious attack on a member of the family occurred in 1999, the Tribunal is unable to conclude that there has been any apparent change in circumstances affecting (Mr A) for the better." 27 The Tribunal member then set out findings about the relationship between Mr A and Mr B. On the basis of their written and oral statements and documents supplied to the Tribunal, the member concluded their relationship "is an intimate, exclusive, viable and emotionally interdependent one and that by simple definition they are a homosexual couple". The member went on: "Bearing in mind, then, the Tribunal's findings in relation to (Mr A), the situation for (Mr B), in these circumstances, need not be assumed to be much better. (Mr A's) family appears to have a high profile and to be subject to considerable scrutiny by the authorities and the media. In the event that he were to return to Bangladesh with or around the same time as (Mr A), and in the likely event that they would, at the very least, try to keep each other's company and probably want to protect each other to the extent possible or practicable, the chance of his being harmed in the presence of (Mr A), by AL-supporting or AL-supported perpetrators, does not appear to be remote. The chance that (Mr B) might even be harmed in his own right, as a means of harming (Mr A), also does not appear to be remote. The Tribunal cannot rule out the possibility that, given the evident but unwarranted notoriety of the uncle's family, his and his relatives' political enemies may easily detect the relationship between (Mr B) and (Mr A) and use it to defame them for the purposes of political advantage. It does not take a wild imagination to conceive that a party capable of framing individuals with illegal arms possession, as the US Department of State reports, would not stoop to fermenting a sex scandal, especially in a largely Islamic society with laws that provide what was referred to earlier as a kind of statutory justification for such an attack. Defaming the Applicants as homosexuals alone might not, depending on the circumstances amount to persecution, but it is easy to accept, given the other evidence of persecution in the case of (Mr A's) family, that it might contribute to a sense of impunity on the part of political enemies in their mistreatment of (Mr A) and (Mr B)." 28 The Tribunal member concluded, in respect of this claim, that "the chance of (Mr A) and (Mr B) being persecuted for reasons of 'political opinion' is not remote. Therefore, as ruled in Chan v Minister for Immigration and Multicultural Affairs (1989) 169 CLR 379, the Tribunal is obliged to consider that it is real". 29 Turning to the matter of membership of a particular social group, the Tribunal member referred to material submitted to him dealing with the place of homosexuals (especially male homosexuals) in Bangladesh society. He concluded: "The Tribunal is satisfied that the Applicants, as homosexuals, are indeed members of a 'particular social group' for the purposes of the Convention. That said, and bearing in mind the evident manifestations of stigma associated with homosexuality in Bangladesh, it is still another matter whether, merely for being found or imputed in Bangladesh to be homosexuals, the Applicants face a real chance of Convention-related persecution." The member went on to say he did "not accept that such demonstrations of ill-will as verbal expressions of scorn or ostracism, on their own, amount to persecution for the purposes of the Convention". However, he thought there were special considerations in the cases before him. He explained: "The present Applicants are accepted as being in an established and evidently committed relationship with each other. It has evidently survived obstacles of displacement, furtiveness and limited income. It is necessary for the Tribunal to take into account the significance of this relationship. The Tribunal accepts as highly plausible the Applicants' claims to the effect that their families do not know of their relationship and would oppose it if they knew about it. The Tribunal takes into account the potentially greatly diminished influence of families and of Bangladeshi society on the Applicants' relationship in Australia. It considers relevant the fact that (Mr A) is the next son in his family who is in line to marry and that (Mr B) is an only child. The Applicants' files include documents from a number of independent sources citing family and other societal pressure in Bangladesh for all adults to marry, usually in order of sibling seniority. The Tribunal accepts on the basis of the independent evidence in the Applicants' files that were they to return to Bangladesh they would soon be under probably insuperable social pressure from their respective families, possibly employing substantial emotional manipulation, to marry women. The Tribunal accepts that such pressure would be immensely difficult to resist. Still, it is not reasonable to conclude, from these analyses, that the pressure upon an individual in Bangladesh to be married in young adulthood is, on its own, a manifestation of ill-will towards homosexuals: it obviously serves many other interests. As imprisoning and devastating as heterosexual marriage may feel to an individual male homosexual in Bangladesh, the denial of liberty that may come as a result of his family and society forcing him to marry may not fall within the Convention if this pressure is indiscriminate, say for example, where his family and society do not even know he is homosexual, or where they suspect it but see it as a phase, or an occasional taste, and are prepared to turn a blind eye to it. In the present case, however, the prospect of being forced to marry has additional serious and direct implications. The Tribunal accepts that, in the event of being forced to return to Bangladesh, and in the event of (Mr A) not yet succumbing to a continuation of the campaign against his family, the Applicants would want to try to keep each other's company and resist arranged heterosexual marriages as long as they could. In this very probable scenario, the Tribunal perceives that there is more than a remote chance of their relationship being discovered by their families and by wider society. This chance is, as noted earlier, increased as a result of the notoriety (Mr A's) family has acquired as a result of affiliations, real and imputed, with his jailed uncle. It would appear common for families to intervene just at the thought of a homosexual relationship between their sons. Consequently, the Tribunal accepts that there would be a real chance of early, strenuous efforts on the respective families' part to break up the Applicants' relationship. How is all this Convention-related? Bearing in mind the earlier-cited principles … by which it is bound, the Tribunal considers it impossible to perceive that family and other societal measures to separate the Applicants from each other could operate in ignorance of the suffering it would cause them and the damage it would (probably hopefully) cause to their relationship. This is notwithstanding the action potentially being 'justified' in the eyes of its agents, the families, as being for the Applicants' 'own good'. Accordingly, the Tribunal considers it impossible to perceive that efforts to separate the Applicants and marry them off can be isolated from a desire on the part of the 'persecutors' to repress or extirpate the homosexuality with which they were confronted …, for reasons of the Applicants being two 'of those jointly condemned in the eyes of their persecutors' …, and a sense of malignancy and ill-will towards their status not only as homosexuals but as a homosexual couple. The Tribunal concludes, then, that there is much more than a 'bare causal connection' between the Applicants' status as homosexuals, or as homosexuals in a relationship together, and the harm they face. The Tribunal does not accept that this is merely a 'but for' issue, because if the families and society know they are forcing two members of a homosexual couple to marry, they are not merely imposing something alongside their relationship, say to distract them, but, rather, they are imposing upon them something that cannot allow any reasonable room for that pre-existing relationship to survive." [Original emphasis] 30 The Tribunal member noted there are laws and conventions against heterosexual relationships outside marriage; but he argued there was there the possibility of relief from pressure by marriage. If the couple were forced to separate, that might be due to the existence of a prior promise or other non-Convention factor. Where marriage was effectively outlawed because it was inter-caste, inter-racial or inter-religious, the member thought, "the action of breaking up should reasonably be seen as persecutory". The member then said: "The Tribunal accepts if an exclusive, intimate, consensual and adult relationship, whether heterosexual or homosexual, faces a real chance of being shattered by the state, or society in general, or even by some small but ultimately highly effective sector of it, for reasons linked to the Convention, such as malignancy towards the group to which the partners in that relationship belong, then they face a real chance of Convention-related persecution. … To sum up, taking all of this evidence and these considerations into account, the Tribunal is satisfied that the chance of the Applicants' relationship being discovered by their families and by society in Bangladesh is not remote. The Tribunal must therefore accept, as per Chan, that it is real. The Tribunal is also satisfied that the chance of their being forced to abandon their relationship due to the contempt of family and society towards their membership of it and of what homosexuality represents to Bangladesh society is not remote. The Tribunal must therefore accept, as per Chan, that it too is real. The Tribunal also accepts as real the chance that the Applicants will respectively be forced into formal commitments with partners of a gender to which they have an innate aversion and, more to the point, that these partnerships will preclude all possibility of their maintaining the relationship they have hitherto cultivated together. The Tribunal is not satisfied that the state in Bangladesh offers any effective protection anywhere within its borders from the serious interference and harm the Applicants claim to fear, let alone to a couple one half of which is from an already 'notorious' family. The Tribunal does not accept that elopement within Bangladesh or mere discretion on the Applicants' part can be prescribed as a alternative to protection under the Convention, so pervasive are the elements, evidently, that would press them to separate and formalise other partnerships. The Tribunal is satisfied that the chance of the Applicants being persecuted for reasons of 'membership of a particular social group, namely their status not only as Bangladeshi homosexuals but also as two Bangladeshi homosexuals identifying as a couple, is not remote. It must therefore be considered to be real." [Original emphasis] 31 The member concluded that both applicants were persons to whom Australia has protection obligations under the Convention and "respectively satisfy" the criterion set out in s36(2) of the Migration Act for the granting of protection visas. The substantial point: submissions 32 In his Outline of Submissions on the substantial point, counsel for the Minister, Mr Stephen Lloyd, referred to the definition of "family unit" in reg 1.12 of the Migration Regulations. That regulation relevantly states: "1.12(1) Subject to subregulation (2), a person is a member of the family unit of another person (in this subregulation called 'the family head') if the person is: (a) a spouse of the family head; or (b) a dependent child of the family head or of a spouse of the family head; or (c) a dependent child of a dependent child of the family head or of a spouse of the family head; or (d) a relative of the family head or of a spouse of the family head who: (i) does not have a surviving spouse or any other relative (other than the family head) able to care for that relative in the relevant country; and (ii) is usually resident in the family head's household; and (iii) is dependent on the family head; or (e) a relative of the family head or of a spouse of the family head who: (i) has never married or is widowed, divorced or separated; and (ii) is usually resident in the family head's household; and (iii) is dependent on the family head." Subregulation (2) relates to the family unit of an applicant for a Student (Temporary) Visa. 33 Mr Lloyd also pointed out that, for the purposes of the regulations, by virtue of reg 1.15A, a person is the "spouse" of another person if the two persons are in a married relationship, as described in subregulation (1A), or a de facto relationship, as described in subregulation (2). Subregulation (2) relevantly provides: "(2) Persons are in a de facto relationship if: (a) they: (i) are of opposite sexes; and (ii) are not married to each other under a marriage that is recognised as valid for the purposes of the Act; and (iii) are not within a relationship that is a prohibited relationship for the purposes of subsection 23B(2) of the Marriage Act 1961; and (b) they are of full age, that is: (i) if either of the persons is domiciled in Australia – both of them have turned 18; or (ii) if neither of the persons is domiciled in Australia – both of them have turned 16; and (c) the Minister is satisfied that: (i) they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them is genuine and continuing; and (iii) they: (A) live together; or (B) do not live separately and apart on a permanent basis; and (d) subject to paragraph (e) and subregulation (2A), where either of them is an applicant for a permanent visa, a Partner (Provisional)(Class UF) visa, or a Partner (Temporary)(Class UK) visa – the Minister is satisfied that, for the period of 12 months immediately preceding the date of application of the party relying on the existence of the relationship: (i) they had a mutual commitment to a shared life as husband and wife to the exclusion of all others; and (ii) the relationship between them was genuine and continuing; and (iii) they had: (A) been living together; or (B) not been living separately and apart on a permanent basis; and (e) …" 34 Mr Lloyd noted that Mr A and Mr B are not able to bring themselves within this description because (and, it would seem, only because) they are not of opposite sexes: see subpara (a)(i). It follows, Mr Lloyd said, that it was not open to Mr B to apply for a protection visa "simply on the basis that (Mr A) was owed protection obligations by Australia". He would have been able to do this under reg 866.211, Mr Lloyd pointed out, if he had been a member of the same "family unit" as Mr A. If he had done so, and as Mr A's application for a protection visa was successful, Mr B would himself have been eligible (subject to health checks and other formalities) to receive a protection visa. 35 Mr Lloyd argued it followed that Mr B's application "was a separate application from that of (Mr A) and should have been treated as such". 36 In his Outline of Submissions, Mr Lloyd went on: "The summary of the reasons set out above reveals that it was an integral part of the Tribunal's analysis that it considered the relationship between the Respondent and (Mr A) as being inviolable, such that the question of their return or not to Bangladesh became in essence one question. The Respondent's fear of harm under the political opinion ground was based entirely upon the prospect that he might be harmed because of his connection with (Mr A), either incidentally during an attack on (Mr A) or indirectly as a result of (Mr A's) political opponents discovering the relationship … the Tribunal's analysis was premised upon the joint return of the two visa applicants. The Applicant submits that this approach involved an error of law arising from the Tribunal considering as one, two separate applications. As a result of this error, the Tribunal failed to consider the possibility that the Respondent might be refused a protection visa when (Mr A) was not. That is, it failed even to address the question of whether the Respondent would face persecution if he alone returned to Bangladesh. Similarly, the analysis in relation to the particular social group claim is founded upon the break of their relationship constituting persecution by persons in Bangladesh. However, that outcome (at least geographically) might be the result not of actions in Bangladesh but of the lawful application of Australia's immigration laws by which (Mr A) can remain in Australia and the Respondent can not. The Tribunal made no findings about whether the Respondent would suffer persecution from anyone in Bangladesh if he were to return alone. The Applicant submits that there is no lawful basis for the Tribunal to approach the two applications in the way that it did. It follows that it must have incorrectly interpreted the applicable law." 37 Mr Lloyd went so far as to contend that the Tribunal made only one decision, a decision embracing both visa applicants, and it erred in doing that; the Tribunal was obliged to make a separate decision on each application. However, Mr Godwin responded by pointing out that the Tribunal headed the relevant document "Decisions and Reasons for Decisions" and concluded its discussion by saying the applicants respectively satisfy the criterion in s36(2) of the Act for the granting of protection visas. Mr Godwin argued no error of law was involved in the Tribunal complying with its obligation under s430 of the Migration Act to provide written reasons and findings by supplying a single document covering two decisions. 38 Mr Godwin did not dispute Mr Lloyd's assertion that the Tribunal failed to address the possibility of one of the two visa applicants returning to Bangladesh and the other remaining in Australia. But he argued this involved no error of law; the Tribunal was dealing with future facts and was entitled to reach a conclusion by reference to what it perceived to be the most likely future facts. Mr Godwin pointed to the Tribunal's use of the words "the very likely event" and "this very probable scenario", in reference to the two men seeking to keep each other's company, and resist arranged heterosexual marriages, in Bangladesh. Mr Godwin contended that the Minister's argument came down to a complaint that the Tribunal's findings of fact did not address a scenario that the Minister considers possible; in effect that the Tribunal miscalculated the probabilities, as it failed to consider the possibility that Mr B might be refused a protection visa when Mr A was not. The substantial point: discussion 39 I agree with Mr Lloyd (and Mr Godwin's concession) that the Tribunal failed in its reasons to address the possibility that one of the visa applicants would return to Bangladesh and the other would not. The question is whether or not this omission was an error of law, there being no doubt that the Tribunal was required to make a separate decision in relation to each visa application, although entitled to consider the two applications simultaneously. 40 The Tribunal member was obviously impressed by the duration and depth of, and level of commitment in, the visa applicants' relationship. He believed they would prefer to be together in the future; in Australia, if allowed to stay here, in Bangladesh if forced to return to that country. There was material to support that conclusion. But it is another matter whether one visa applicant would choose to return to Bangladesh, despite having a protection visa in Australia, if the other was forced to return. That question is particularly pertinent to the case of Mr A who, the Tribunal accepted, faces a significant risk of persecution in Bangladesh on account of his relationship with his uncle. It does not arise in the same way for Mr B. His risk of persecution on account of perceived political opinion stems from his relationship with Mr A. The risk is dependent upon Mr B being in the company of Mr A in Bangladesh or being known by opponents of Mr A (or his uncle) to be a close associate of Mr A. If Mr B returned to Bangladesh, without Mr A, there would be no reason for him to fear persecution on the basis of political opinion. 41 In relation to fear of persecution on the basis of homosexuality, there is no distinction between the position of one visa applicant and that of the other. In the way in which the Tribunal dealt with the topic, the possibility of persecution arises out of disruption of their relationship, in Bangladesh, by family marriage pressure on one or both of them. However, as Mr Lloyd pointed out, a disruption to their relationship from this cause would occur only if both were returned to Bangladesh. 42 Mr Lloyd accepted that no argument would be available to him if the Tribunal had made a finding that Mr A would be likely to forego the right to stay in Australia under a protection visa and return to Bangladesh with Mr B, if the latter was forced to return. On that basis, the chance of persecution foreseen by the Tribunal could be averted only by granting protection visas to both applicants. But Mr Lloyd's point is that no such finding was made; the Tribunal simply assumed the couple would be together; either in Australia or Bangladesh. 43 It seems to me there is substance in Mr Lloyd's argument. I do not agree with Mr Godwin that any error by the Tribunal lay only in its prediction of future facts. The Tribunal was obliged to reach a separate decision about each application. It was open to the Tribunal , and appropriate, for it to hear both matters together and to publish one document setting out both decisions, and the reasons for them. But a judgment had to be made about each individual application and the judgment about each applicant had to take account of the probable future facts pertaining to that applicant. As the lives of the two men were so interwoven, in identifying the probable future facts pertinent to one applicant, it was necessary for the Tribunal to take into account any consequences, for that applicant, of its decision in relation to the other applicant. The Tribunal failed to do that; it did not consider the effect on Mr B's claim of the decision it was about to make in favour of Mr A. Had it done so, it would have been obliged to consider whether Mr A would be likely to forego his right to stay in Australia in favour of returning to Bangladesh with Mr B, if Mr B was refused a protection visa, or whether Mr A would be likely to stay in Australia, leaving Mr B to return alone. If the Tribunal reached the latter conclusion, there would be no foundation for the Tribunal's reasoning in favour of Mr B. 44 I think the Tribunal's omission was an error of law, and not merely an error in relation to matters of fact, because it arose out of a failure by the Tribunal to ask itself the correct ultimate question: is there a real chance of this particular applicant being persecuted because of political opinion or membership of a particular social group, having regard to the material before the Tribunal bearing on past and probable future facts? A response to that question, in relation to Mr B, necessarily required the Tribunal to take into account its prospective decision about Mr A. 45 At an early stage of its reasons for decisions, the Tribunal mentioned a reference by Gummow J, in Applicant A v Minister for Immigration and Multicultural Affairs (1997) 190 CLR 225, to the "ordinary usage" meaning of the word "persecution". At 284 his Honour quoted a dictionary definition: "The action of persecuting or pursuing with enmity and malignity; esp the infliction of death, torture, or penalties for adherence to a religious belief or an opinion as such, with a view to the extirpation of it; …". Because of this quotation, the Tribunal member seems to have taken Gummow J to hold that "persecution", within the meaning of the Convention, only arises where the postulated persecutors are animated by a sense of malignancy or ill-will towards the postulated victim or victims . However, it seems to me Gummow J did not go that far. Immediately after setting out the dictionary definition, he quoted with approval a formulation by Burchett J in Ram v Minister for Immigration and Multicultural Affairs (1995) 57 FCR 565 at 568 that includes, as one possibility, "an element of an attitude on the part of those who persecute which leads to the infliction of harm". Burchett J made the observation that "(p)eople are persecuted for something perceived about them or attributed to them by their persecutors" and pointed out that not every isolated act of harm to a person is an act of persecution. Importantly, he did not suggest that malignancy or ill-will was an essential element of the concept of persecution adopted by the Convention. 46 In most cases, of course, persecutors are actuated by malignancy or ill-will; but not always. For example, the practice of taking from their parents infants of mixed indigenous – European blood, widespread for many years in Australia and some other countries, must now be regarded as persecution, notwithstanding that the removals often (perhaps usually) were undertaken in the belief that removal was in the best interests of the infant. 47 In a decision handed down after the Tribunal's decisions concerning Mr A and Mr B, the High Court of Australia specifically rejected the need for enmity or malignancy: see Chen Shi Hai v Minister for Immigration and Multicultural Affairs [2000] HCA 19, 170 ALR 553. At para [34] Gleeson CJ, Gaudron, Gummow and Hayne JJ referred with approval to a statement made by French J, at first instance in that case: "The majority judgment in Applicant A supports the proposition that the apprehended persecution which attracts Convention protection must be motivated by the possession of the relevant Convention attributes on the part of the person or group persecuted. But although the words 'enmity' and 'malignity' appear in the dictionary definitions of persecution and in some of the passages in the judgments, they do not mandate a narrow or constricting view of what may constitute the relevant connection between persecution and membership of the group. Motivation connecting persecution to the relevant attribute is sufficient. Persecution may be carried out coolly, efficiently and with no element of personal animus directed at its objects. There are too many historical examples of the inhuman indifference of which governments are sometimes capable in the pursuit of persecutory policies to so narrow the concept. The attribution of subjectively flavoured states such as 'enmity' and 'malignity' to governments and institutions risks a fictitious personification of the abstract and the impersonal." Their Honours went on, in para [35]: "Persecution can proceed from reasons other than 'enmity' and 'malignity'. Indeed, from the perspective of those responsible for discriminatory treatment, it may result from the highest of motives, including an intention to benefit those who are its victims. And the same is true of conduct that amounts to persecution for a Convention reason. Accordingly, French J was correct to hold, as did the Full Court, that the tribunal erred in finding that, because the different treatment which the appellant was likely to receive was not motivated by 'enmity' or 'malignity', that treatment was for a reason other than his being a 'black child'." 48 The Tribunal member who determined Mr B's application did not have the benefit of this clear rejection of the necessity to show enmity or malignancy. However, it is now apparent, if it was not so earlier, that it was unnecessary for the Tribunal member to consider the motives and knowledge of the families of Mr A and Mr B. Indeed, it may not have been essential for him to consider the issue of homosexuality only in terms of the disruption to the relationship of the two men that was likely to result from pressure to marry. If the Tribunal had found that a particular applicant was at risk of suffering a pattern of harm, resulting from his membership of the Bangladeshi homosexual community, that would seem enough to make him a "refugee" within the meaning of the Convention. Disposition 49 Having regard to the conclusion I have reached concerning the legal question raised by the Minister, I must set aside the Tribunal's decision in favour of Mr B and remit the matter for redetermination. I regret having to do this; but not because the application before the Court is made by the Minister, rather than an unsuccessful visa applicant, as is more commonly the case. The Minister is entitled to challenge a Tribunal decision in favour of an applicant that involves an error of law: see s479 of the Migration Act read with s475(1) and s476(1)(e). If the challenge is successful, it is proper for the Court to set aside the erroneous decision. My regret arises out of the fact that the result of my order is that Mr B is placed in a less advantageous position than would be enjoyed by a woman who was in a heterosexual relationship with Mr A of similar duration, depth and level of commitment. There is little doubt that, if he were a woman, Mr B would be regarded as the "spouse" of Mr A, for the purposes of the Migration Regulations, despite the absence of legal marriage. That status would entitle Mr B to receive a protection visa, not because of his own fear of persecution, but simply by reason of his membership of Mr A's "family unit". The distinction drawn by the regulations between unmarried persons in a heterosexual relationship and persons in a homosexual relationship, even a relationship of greater duration and stability, is a discrimination on account of sexual orientation that, in my opinion, has no place in a modern, liberal society. It warrants review. 50 Mr Godwin submitted that, if I concluded that the Tribunal's decision should be set aside, I should order that the matter be remitted to the particular Tribunal member who made the earlier decision, with a direction that he further consider Mr B's application on the basis of the material before him at the time he made the decision under review together with such further material, if any, as he considers necessary, and taking into account the Court's decision. 51 It is not the usual practice of the Court, when remitting a matter to the Tribunal for redetermination, to specify whether or not it should be redetermined by the member who made the original determination. The Court has generally preferred to leave that question to the President of the Tribunal . As I understand the situation, the President usually assigns the matter to a different member. The desirability of that course is often obvious. The deficiency exposed by the Court's judgment may be such as to create understandable concern that the visa applicant – who will usually be unable to make an informed and sophisticated judgment about the position – may lack confidence in any future decision of that member. The situation may be different where the Tribunal's decision is set aside on the application of the Minister; especially where the Minister makes no personal allegation against the Tribunal member but simply argues, in effect, that she or he failed to finish the job. 52 However, I prefer not to depart from the usual practice in this case. Allocation of work within the Tribunal is the responsibility of the President. I think it is better for me to leave to the President the decision whether the remitted matter should be handled by the member who made the initial decision or by some other member. 53 Mr Godwin also submitted that, if the Minister was successful, I ought to depart from the usual rule that costs follow the event. He referred to Mr Lloyd's remark during argument that the Minister had made the application out of concern that the Tribunal's decision, if not corrected, might lead into similar error other Tribunal members and also ministerial delegates. Accordingly, Mr Godwin said, this should be seen as litigation undertaken in the public interest; it was reasonable to expect the cost of such litigation to be met out of public funds rather than the resources of a particular visa applicant. Mr Lloyd submitted I should follow the usual practice in regard to costs. 54 I think there is substance in Mr Godwin's submissions. Mr Lloyd did make clear, during the course of submissions, that the Minister had brought the proceeding out of concern to uphold a point of principle: the necessity for decisions about refugee recognition to be directed to the circumstances of the particular applicant. The point that concerned the Minister arose only because of a particular approach taken by the Tribunal, for which Mr B was not responsible. In the circumstances, I think it not unreasonable to expect determination of the point of principle to be undertaken, to some extent, at public expense. 55 However, the case was complicated by the objection to competency that was unsuccessfully taken by Mr B. Although the hearing was nevertheless completed in one day, the objection must have added to the Minister's costs. In the circumstances, I think it is fair to order Mr B to pay one-half of the Minister's costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox. Associate: Dated: 11 July 2000 Counsel for the Applicant: S Lloyd Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondent: D Godwin Solicitor for the Respondent: Parish Patience Date of Hearing: 21 June 2000