NAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 241

FEDERAL COURT OF AUSTRALIA

NAFP v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 241 NAFP v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS N 1330 of 2002 BRANSON J 13 MARCH 2003 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1330 of 2002

BETWEEN: NAFP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 13 MARCH 2003

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. the application be dismissed; 2. the applicant pay the respondent's costs of the application.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1330 of 2002

BETWEEN: NAFP

APPLICANT

AND: MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

RESPONDENT

JUDGE: BRANSON J

DATE: 13 MARCH 2003

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 The applicant arrived in Australia on 13 April 2000 having travelled on an Indian passport. He lodged an application for a protection visa on 16 May 2000 claiming to be a citizen of Bangladesh. A delegate of the respondent refused this application on 23 May 2000. The applicant applied for review of this decision by the Refugee Review Tribunal ('the Tribunal') on 2 June 2000. On 14 November 2002 the Tribunal handed down its decision affirming the decision not to grant the protection visa. 2 The applicant gave evidence before the Tribunal on 19 July 2002. He claimed to fear persecution in Bangladesh by fundamentalist Muslims including fundamentalist members of his own family. He claimed that they would persecute him on two grounds. The first is that he is homosexual and the second that he is involved with western music. The applicant alleges that he was expelled from his family home in 1996 after being discovered having sexual relations with a male servant. He said that he moved to Dhaka in 1998 and worked in a recording studio for two years. There he became involved in a sexual relationship with another homosexual man. He said that people discovered this relationship and he was threatened by his room mates and work mates and eventually lost his job as a result of his homosexuality. He was forced to move from where he was living and moved in with his homosexual partner with whom he lived for two and a half months. 3 The applicant claimed that his family holds fundamentalist Islamic beliefs and hate him because of his homosexuality and love of western music. He said that they have placed significant pressure on him to marry and that his mother has threatened to commit suicide if he does not get married. He said that if he returns to Bangladesh he will be forced to follow Islamic religious customs and to get married. 4 The Tribunal apparently accepted that the applicant is a citizen of Bangladesh. It was prepared to accept that the applicant is homosexual. However, it did not accept many of the applicant's other claims. The Tribunal was not satisfied that the applicant was a reliable witness and said that his evidence contained a number of inconsistencies which were not convincingly explained. 5 In relation to his involvement to western music, the Tribunal stated that although the applicant worked in a recording studio for two years there was nothing to indicate that he experienced any harm from anyone as a result. The Tribunal was not satisfied that the applicant was at risk of harm by Islamic fundamentalists due to his involvement with western music. 6 In relation to his homosexuality, the Tribunal considered the independent country information. It found that that information indicated that while homosexuality is illegal in Bangladesh these laws are not enforced. The Tribunal noted that the applicant had lived in a homosexual relationship for two and half months without experiencing harm or discrimination. The Tribunal did not accept the applicant's account of the termination of his employment. 7 The Tribunal accepted that it may have been upsetting for the applicant to be asked to leave his accommodation by his room mates but did not accept that this amounted to persecution. Similarly, the Tribunal accepted that family disapproval and the threat of suicide made by the applicant's mother would have been upsetting but it also found that these did not amount to persecution. It is not entirely clear whether the Tribunal considered that there was a real chance that the applicant's mother would kill herself if the applicant returned to Bangladesh and persisted in his refusal to marry. The Tribunal noted that the suicide threat was made some four years ago. 8 The Tribunal found that there was no reliable evidence from the applicant that he had ever experienced any serious harm because of his sexuality. It did not accept that there was a real chance that his family or any one else would harm the applicant. The Tribunal was not satisfied that the applicant had a well-founded fear of harm for a Convention reason. For this reason it found that the applicant did not satisfy the criteria for a protection visa. 9 By his amended application to the Court for an order of review the applicant made the following claims: '1. The Refugee Review Tribunal failed to exercise its jurisdiction. … 2. The decision involved an error of law. … 3. The decision was not authorized by the Migration Act 1958. ….'