Australia refuses gay Pakistani asylum

Image via WikipediaSource: Australian Policy Online

By David Hume

On 26 May 2010, a divided High Court set a high bar for those seeking to challenge refugee decisions on the basis that they are irrational or illogical. In ordering that a decision of the Refugee Review Tribunal denying an asylum seeker a visa should stand, a majority of the Court said there was “room for a logical or rational person to reach the same decision”. The decision was, according to the majority, not “unintelligible”.

The proceedings in the case – Minister for Immigration and Citizenship v SZMDS (SZMDS) – took a familiar path. A decision denying a visa was appealed up to the High Court at which point the asylum seeker lost.

In 2009, 11 per cent (6 of 53) of High Court decisions involved immigration and asylum decisions made by the Minister for Immigration and Citizenship or his delegate. The Minister won all six. Fully 65 per cent – or 179 of 276 – of unsuccessful applications for leave to appeal to the High Court in 2009 involved the Government and an unsuccessful visa applicant. In other words, in 2009, out of 185 decisions involving the Minister for Immigration and Citizenship, the Minister won all 185.

The respondent in SZMDS was a citizen of Pakistan. In August 2007, he sought a protection visa in Australia on the grounds of his belief in and practice of homosexuality. The respondent said that he had become aware of his sexuality in a period between October 2005 and July 2007 when he had been living and working in the United Arab Emirates (UAE). Under the Migration Act, the respondent would be granted a protection visa if the Minister (or his delegate) were satisfied that the respondent was a refugee. That issue depended on whether the respondent had a well-founded fear of persecution in Pakistan.
The Refugee Review Tribunal relied on two facts to hold that the respondent did not have such a fear. First, before coming to Australia on a visitor visa in August 2007, the respondent had left the UAE and travelled to Pakistan for three weeks. The Tribunal said that if the respondent had been genuinely fearful of serious harm as a result of his sexuality, then he would not have gone to Pakistan, even for a short period. Second, in 2006, the respondent had travelled to the United Kingdom, but had not claimed asylum. The respondent said that this was because, at that time, he was in a good relationship in the UAE and he “did not have any problem at the time”. The Tribunal said that it was inconsistent for the respondent to fear persecution and yet not claim asylum when he had a chance.

After an unsuccessful application for review of the Tribunal decision before a Federal Magistrate, the respondent appealed to the Full Federal Court. The Court considered the Tribunal’s reasoning that the respondent must not have feared persecution because, first, he returned to Pakistan and, second, he failed to apply for asylum in the United Kingdom. The Court said that this reasoning had “simply no basis” and was “completely unsustainable as a piece of logical analysis”. The Court allowed the appeal, and the Minister promptly appealed to the High Court. In a three (Heydon J, and Kiefel and Bell JJ) to two (Gummow ACJ and Crennan J) decision, the High Court allowed the appeal.

The essence of the majority’s decision was this: irrespective of whether one might disagree with the Tribunal’s decision, both the Tribunal’s process of reasoning and the findings it made, were “open” to it. There was no cause for judicial intervention.

Gummow ACJ and Crennan J departed from their judicial colleagues for two reasons.

The first was a different understanding of what was “normal” or “reasonable” conduct for a person who is homosexual and fears persecution based on their sexuality. For the dissentients, the matter needed to be understood in the particular context of persecution on the basis of sexuality. There is now a growing body of international jurisprudence regarding the specific issues involved in claims for asylum based on sexuality, culminating in the decision of the UK Supreme Court on 7 July 2010 which labelled international disparities in attitudes to sexuality “one of the most demanding social issues of our time”.

Asylum seeker cases involving claims of persecution based on homosexuality raise difficult issues. Sexuality is invisible. How does the asylum seeker prove their sexuality? How do they prove that it would become known to others and, therefore, a basis for persecution? What if the asylum seeker would choose to be discreet in their homosexuality, not because of governmental persecution, but because of family or local community expectations? Sexuality is also, as the dissentients said in SZMDS, “essentially individual and fact-specific”. One person’s experiences of sexuality may differ from another’s, even though both notionally are classified as homosexual (or another category of sexuality). How, then, can an asylum seeker prove (and an administrator decide) that they have a particular sexual identity? The evidence may be of ways that people possessing that sexual identity tend to act, but sexual identity is not monochrome.

The invisibility and individualised nature of sexual identity was important for the dissentients. They meant there was an “absence of … logical connection” between the Tribunal’s findings that the respondent had returned to Pakistan and had not claimed asylum in the UK and the Tribunal’s conclusion that the respondent must not have feared persecution. According to the dissentients, the respondent’s decision to return to Pakistan was explicable because sexuality can be invisible. Further, the respondent’s decision not to claim asylum in the United Kingdom was explicable because of his individual, relationship-specific desire to continue to live with his then partner. Neither decision of the respondent said anything about his fear of persecution. For the majority, there was no need to respond to this line of reasoning – even if it was an alternative and reasonable way of assessing the facts, it did not undermine the claim that a logical or rational person could have reached the same decision on the material before the Tribunal.

The second difference between the majority and the minority judges was this: the dissentients were simply more willing to intervene to correct administrative decision-making. For Kiefel and Bell JJ, “a Court should be slow” to intervene in administrative decision-making. For the dissentients, it was critical that the decision turned on whether the Tribunal was satisfied of the existence of a “jurisdictional fact”. A jurisdictional fact is, in effect, one that the existence of which is a precondition to the administrator having any power at all. In this case, the jurisdictional fact was that the Minister (or his delegate) was satisfied that the respondent was a refugee. Previous High Court decisions had said that, where a jurisdictional fact is involved, if the fact does not exist or was illogically or irrationally found to exist by the administrator, then no matter how proper the balance of administrator’s decision is, a Court will ordinarily intervene.

Gummow ACJ and Crennan J found a special reason to rely on this doctrine in the present case: the case involved a claim for refugee status. The Commonwealth’s power to make laws with respect to determinations of refugee status exists because Australia was a party to international treaties concerning refugees. Those treaties enlivened the Commonwealth’s “external affairs” power. This meant that the Minister’s satisfaction as to the refugee status of the person had constitutional implications. If the Minister were too free to make decisions regarding refugee status, then the Minister might exceed the powers potentially open to the Commonwealth. The Minister could, for example, without judicial correction, decide that any person was a refugee, thereby enlivening a swathe of government powers. The risk is that power will rise higher than its constitutional source. For Gummow ACJ and Crennan J, these factors counselled against being slow to intervene in decisions regarding asylum seekers.

The difference between the dissentients and the majority was arguably one of degree. But it is a difference that may have substantial ramifications for asylum seeker cases in which assessments of credibility and fact are critical, and those assessments are often disputed and open to reasonable disagreement. If future decisions continue the theme of SZMDS, the future is likely to bring still more victories for the Minister when it comes to judicial review of migration decisions. •

David Hume is a visiting fellow at the University of NSW and a practising solicitor.