Case: Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220
Outcome: applied
Once the Tribunal's actual findings are set out in this way, it is plain enough that grounds 4 and 5 fail. The Tribunal plainly rejected the appellant's claim to be homosexual. At the same time, it allowed for the possibility that a homosexual demeanour might be attributed to him in Australia on account of his involvement in the CAAH and his association with homosexuals in Australia. It held, however, that it was unlikely that his involvement in CAAH or his association with homosexuals in Australia would result in a homosexual demeanour being attributed to him in Bangladesh. It also held that it was unlikely that he would continue activities of this kind on returning to Bangladesh (since they were done in Australia to enhance his refugee claim). Notwithstanding this, however, in accordance with Minister for Immigration and Multicultural Affairs v Rajalingam [1999] FCA 794 ; (1999) 93 FCR 220 (" Rajalingam ") at 62-63, the Tribunal went on to consider the appellant's situation in what it saw as the unlikely event that this attribution or imputation was made in Bangladesh. In this regard, the Tribunal was not satisfied that the appellant would "be subject to serious harm amounting to persecution". 28 If the passage set out at [17] above is understood in this way, it is apparent that no error of the kind for which the appellant contends has occurred. That is, in the Tribunal's reasons, the passage can be read as intended to support the proposition that there is no real chance of serious harm befalling a person in Bangladesh on account of overt (and a fortiori covert) homosexual behaviour. 29 Another passage towards the conclusion of the Tribunal's reasons, on which the appellant relied, must also be read in the light of the findings and in the entirety of the Tribunal's reasons. In this passage, the Tribunal referred first to the provision of country information by the appellant's adviser and to her submission about a lack of state protection. It then commented: While accepting that Bangladesh is at the moment experiencing severe political disruption and turmoil, and there is some politically orientated violence, the Tribunal has not been able to find any evidence that homosexual males, and even more importantly than [sic] those people like the Applicant who may have a gay demeanour or association imputed to them, are being subject to a particular persecution or are being targeted at this time because of it or that there has been a breakdown in effective state protection for this particular social group. Accordingly, in view of all the above and its earlier findings, the Tribunal does not accept this claim and is satisfied that there is not a real chance that the Applicant would be subject to serious harm amounting to persecution for a Convention reason (including his particular social group, actual or imputed) because of the current political difficulties in Bangladesh. 30 The appellant argued that the expression "like the Applicant" indicated that the Tribunal made a positive finding concerning the imputation of a homosexual demeanour to the appellant in Bangladesh. When this passage is read in the context of the Tribunal's entire reasons, as indeed the Tribunal expressly invited the reader to do, it is clear that this is not so. In this passage, the Tribunal was doing no more than responding to the appellant's adviser's submission concerning effective state protection upon the basis required by Rajalingam. That is, it was considering the appellant's position in what it saw as the unlikely event that an imputation of homosexuality was made in Bangladesh. In this regard, the Tribunal was not satisfied that there was a real chance that the appellant would be subjected to serious harm amounting to persecution for a Convention reason. 31 When the Tribunal's actual findings are stated, it is apparent that the Tribunal gave consideration to the appellant's claims to fear persecution because of "his ... imputed membership of a Particular Social Group being gay men in Bangladesh" (compare ground 4), although it considered the imputation in Bangladesh to be unlikely. In this latter regard, ground 4 misstates the Tribunal's finding. The Tribunal gave this question consideration in accordance with its obligation as outlined in Rajalingam . Ground 4 is therefore not sustainable. Similarly and on the same basis, the Tribunal gave attention to the question "whether gay men (imputed or actual) as a Particular Social Group were the subject of persecution in Bangladesh for the purposes of the Convention as modified by the Act ". Ground 5 also fails. Examination of the Tribunal's reasons and the appellant's submissions shows that the appellant's real argument is with the merits of the Tribunal's decision. This is not, however, a matter that properly falls for consideration in the Federal Magistrates Court on judicial review or in this Court on appeal.