From discretion to disbelief: recent trends in refugee determinations on the basis of sexual orientation in Australia and the United Kingdom
2009; Routledge; Volume: 13; Issue: 2-3 Linguagem: Inglês
10.1080/13642980902758218
ISSN1744-053X
Autores Tópico(s)International Law and Human Rights
ResumoAbstract In Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs, the High Court of Australia was the first ultimate appellate court to consider a claim for refugee status based upon sexual orientation. By majority the court rejected the notion prevalent in earlier cases that decision-makers could 'expect' refugee applicants to 'co-operate in their own protection' by concealing their sexuality. This paper explores the impact of S395 and S396 on the refugee jurisprudence of Australia and the United Kingdom five years on. Refugee decision-makers in both countries have been slow to fully appreciate the fact that sexual minorities are secretive about their sexuality and relationships as a result of oppressive social forces rather than by 'choice'. In addition, in Australia there has been a clear shift away from discretion towards disbelief as the major area of contest, with a significant increase in decisions where the applicant's claim to actually being gay, lesbian or bisexual is outright rejected. In an alarming number of cases tribunal members used highly stereotyped and Westernised notions of 'gayness' as a template against which the applicants were judged. Keywords: refugee statusparticular social grouppersecutionsexual orientationhomophobic violencecredibility Acknowledgements This study was devised in conjunction with Professor Catherine Dauvergne at the University of British Columbia and I am enormously grateful for her input at every stage of the project. This research was supported by an Australian Research Council Discovery Project Grant. Thanks to Laurie Berg, Katherine Fallah and Marianna Leishman for their invaluable research assistance. Notes Appellants S395/2002 and S396/2002 v. Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473 (S395 and S396). Article 1A(2) of the 1951 Convention Relating to the Status of Refugees, 189 UNTS 150, as amended by the 1967 Protocol Relating to the Status of Refugees, 606 UNTS 267 (hereinafter referred to as 'Convention'), defines a refugee as any person who, 'owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it'. Sexual orientation had been accepted as the basis for a particular social group claim in most major refugee-receiving nations by the mid-1990s: see, e.g., Re R (UW) [1991] CRDD No 501 (Quicklaw), IRB Reference U91-03331 (7 October 1991); Ward v. Attorney-General (Canada) [1993] 2 SCR 689 (Canada); Matter of Toboso-Alfonso, 20 I&N Dec 819 (BIA 1990) (United States); N93/00593 [1994] RRTA 108 (25 January 1994) (Australia); Applicant A v. Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 (Australia); Vraciu v. Secretary of State for the Home Department [1994] UKIAT 11559 (21 November 1994); R. v. Immigration Appeal Tribunal, ex parte Shah [1999] 2 AC 629 (United Kingdom). See discussions in Catherine Dauvergne and Jenni Millbank, 'Before the High Court: Applicants S396/2002 and S395/2002, a Gay Refugee Couple from Bangladesh', Sydney Law Review 25 (2003): 97; Jenni Millbank, 'The Role of Rights in Asylum Claims on the Basis of Sexual Orientation', Human Rights Law Review 4 (2004): 193. See, e.g., in Canada, Re XMU [1995] CRDD No 146 (Quicklaw), IRB Reference T94-06899 (23 January 1995); in New Zealand, Re GJ [1995] Refugee Appeal 1312/93 (30 August 1995). S395/2002 and S396/2002, per McHugh and Kirby JJ., para. 18. The earlier levels of judicial review were Kabir v. Minister for Immigration and Multicultural Affairs [2001] FCA 968 (Federal Court, 26 July 2001) and Kabir v. Minister for Immigration and Multicultural Affairs [2002] FCAFC 20 (Full Federal Court, 22 February 2002). The original tribunal-level decision was RRT Reference N99/28381 and N99/28382 (unreported, 5 February 2001), but is not publicly available. S395/2002 and S396/2002. The two majority judgments are by Gummow and Hayne JJ. jointly and McHugh and Kirby JJ. jointly. The Australian cases were all obtained from the Australasian Legal Information Institute database (http://www.austlii.edu.au), while the UK cases were obtained from the Electronic Immigration Network case database (http://www.ein.org.uk), the Asylum and Immigration Tribunal website (http://www.ait.gov.uk), and LEXIS. The first phase of the study analysed all available Australian and Canadian decisions on sexual orientation and refugee status over the period 1994–2000: see discussions in Catherine Dauvergne and Jenni Millbank, 'Burdened by Proof: How the Australian Refugee Review Tribunal Has Failed Lesbian and Gay Asylum Seekers', Federal Law Review 31 (2003): 299; Jenni Millbank, 'Imagining Otherness: Refugee Claims on the Basis of Sexuality in Canada and Australia', Melbourne University Law Review 26 (2002): 144. In the second phase of the study these decisions were updated to the end of 2007 and the pool was widened to include all available refugee cases on sexual orientation from the UK and New Zealand. The study counted 'positive' or 'negative' decisions from the perspective of the applicant, even if (as in the case of judicial review and also some UK tribunal outcomes) the decision is one of remittal and reconsideration of the claim rather than an ultimate positive determination of refugee status. This gives an inflated sense of 'positive' outcomes, as we do not have access to the majority of the remittal determinations and some, perhaps many, of these will ultimately be negative to the applicant. However, we include the judicial review decisions for the very reason that they are often the only publicly available record of a case, the original negative tribunal determination usually not being released. The success rate for applicants in Australia in the first phase of the research covering 1994–2000 was 22% at tribunal level (and remains 22% when judicial review decisions are also included) and from 2001 to 2007 was 37% at tribunal level (or 28% when judicial review decisions are included). While there was a marked increase in the success rates at RRT level, our conclusion that there has not been a sizable increase in the success rate in Australia is based upon the whole pool including judicial review cases, for two reasons. First, there was a sharp reduction in the proportion of released RRT decisions post-2000 and, second, most of the judicial review determinations arose from RRT decisions that were not released; thus we treated the judicial review decisions as proxy for the unreleased RRT decisions in determining an overall success rate. In the UK, the positive decision rate was 50% at tribunal level from 1994 to 2000 (8 of 16 cases, although note that four of these positive decisions led to remittal while four were actual grants of refugee status). The positive rate falls to 23% when the 19 judicial review decisions are included. The positive decision rate was 37% at tribunal level from 2001 to 2007 (20 of 54 decisions, although note that eight of these positives were remittals, while 12 were actual grants of refugee status), the positive rate remaining 37% when judicial review decisions are included. In Australia the original decision on refugee status is taken by a delegate of the Minister for Immigration and Citizenship (also known variously through the period of this study as the Minister for Immigration and Multicultural Affairs and the Minister for Immigration and Multicultural and Indigenous Affairs) and in the UK by a delegate of the Home Secretary, in both countries a fairly low-ranking bureaucratic officer. If this determination is negative, the applicant can apply for a de novo merits review of the decision. In Australia this review is undertaken by the Refugee Review Tribunal (RRT), which sits with a single member. In the UK until April 2005 this review was undertaken by the Immigration Appellate Authority (IAA) in a two-tier system; first, an immigration adjudicator reviewed the decision de novo and then leave could be given to the Immigration Appeal Tribunal (IAT), which until 2002 provided a second level of de novo review and after 2002 was limited to points of law by the Nationality, Immigration and Asylum Act 2002 (c. 41) (UK). From 2005 the two-tier structure was abolished and replaced by the Asylum and Immigration Tribunal (AIT): Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (UK). The AIT can only grant review based on an error of law. See, e.g., Richard Rawlings, 'Review, Revenge and Retreat', Modern Law Review 68 (2005): 378; Catherine Dauvergne, 'Sovereignty, Migration and the Rule of Law in Global Times', Modern Law Review 67 (2004): 588. These being the Minister's delegate, the RRT, the Federal Court, the Full Federal Court and the High Court. Note, however, that at the last three levels the review was limited to points of law; the facts as found by the RRT were assumed. See NAOX v. Minister for Immigration and Multicultural and Indigenous Affairs [2006] FMCA 434 (13 April 2006) (note that the second RRT decision is not publicly available). See V95/03527 [1996] RRTA 246 (9 February 1996), p. 7 of typescript. See, e.g., R. v. Secretary of State for the Home Department ex parte Binbasi [1989] Imm AR 595, p. 5 of typescript; Boyd v. Secretary of State for the Home Department [2000] UKIAT 00TH01419 (1 June 2000), p. 2 of typescript. See, e.g., Jain v. Secretary of State for the Home Department [1999] EWJ No 5243 (6 October 1999), para. 9. See also T v. Special Immigration Adjudicator [2000] EWJ 3020 (11 May 2000); Dumitru v. Secretary of State for the Home Department [2000] UKIAT 00TH00945 (3 April 2000); V99/10346 [2001] RRTA 568 (20 June 2001). See, e.g., V98/08356 [1998] RRTA 4841 (28 October 1998); N01/40155 [2003] RRTA 138 (18 February 2003). In an early UK case this was characterised as 'inviting persecution': R. v. Secretary of State for the Home Department ex parte Binbasi, p. 4 of typescript. See, e.g., V97/06483 [1998] RRTA 27 (5 January 1998); this was also a finding in RRT Reference N97/20994 (unreported, 4 May 1998) and in RRT Reference N98/2231 (unreported, 22 September 1998). Cases that have been removed from the Australasian Legal Information Institute database since the first phase of the study are on file with author. See, e.g., N99/29824 [2001] RRTA 890 (16 October 2001). See, e.g., V95/02999 [1995] RRTA 897 (26 April 1995); V97/06802 [1997] RRTA 3846 (30 September 1997). The Convention definition and grounds are outlined in note 2 above. See e.g., 'Freedom of religion is of course a fundamental human right. Furthermore, the public profession of one's religion will normally be an essential part of the practice of one's religion … so the inability to publicly profess and practice one's religion is a clear violation of freedom of religion. This is not the case with sexuality … Public manifestation of homosexuality is not an essential part of being homosexual.' V98/08356, not disturbed on judicial review: LSLS v. Minister for Immigration and Multicultural Affairs [2000] FCA 211 (6 March 2000). Over the period of 1994–2003 the failure rate of lesbian applicants before the RRT was 86% and the failure rate of gay male applicants before the RRT was 73%. Sixty-four of the 65 cases in which discretion was expected or required were negative to the applicant. There were a further 11 judicial review cases where discretion was expected or required, of which 10 were negative. There were 61 AIT and IAT cases, 21 of which raised discretion. Of those 21 cases, it was apparent from the decisions that 19 expected or required discretion. These figures are drawn from 1994 until November 2004, as it took several months for the S395 and S396 decision to become known in the UK. Discretion was also raised in 37 UK judicial review cases through that period. Of those cases it was clear that discretion was expected or required in 13 cases, 12 of which were negative to the applicants. See, e.g., note 3 above; see also Jenni Millbank, '"A Preoccupation with Perversion": The British Response to Refugee Claims on the Basis of Sexual Orientation 1989–2003', Social & Legal Studies 14 (2005): 115. This idea is explored in the work of many scholars but see, e.g., Gail Mason, The Spectacle of Violence: Homophobia, Gender, and Knowledge (London: Routledge, 2002). For example: 'The right to free expression of sexuality does not extend so far as a right to publicly proclaim one's sexuality' and it is reasonable to avoid 'overt manifestations of homosexuality such as public embracing', which, while 'irksome and unjust', is 'not an infringement of human rights': V96/05496 [1998] RRTA 196 (15 January 1998). See, e.g., V99/10323 [2000] RRTA 456 (14 April 2000). See, e.g., EK v. Secretary of State for the Home Department [2004] UKIAT 00021, para. 16; 071723892 [2007] RRTA 323 (5 December 2007). See, e.g., MV v. Secretary of State for the Home Department [2003] UKIAT 00005, para. 11. See, e.g., V97/06483, where this term was attributed to the claimant. Nezhadian v. Minister for Immigration and Multicultural Affairs [2001] FCA 1415 (18 October 2001), para. 12. WABR v. Minister for Immigration and Multicultural Affairs [2002] FCAFC 124 (10 May 2002), para. 23. The Full Court further held that '[i]t is not appropriate to submit that the ability to proclaim one's sexual preference is an essential right, the denial of which would or could lead to persecution': ibid., para. 19. See, e.g., Khanmeeri v. Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 625 (17 May 2002); LSLS v. Minister for Immigration and Multicultural Affairs. See, e.g., Guy Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd edn (Oxford: Oxford University Press, 2007), 123, para. 5.61; James Hathaway and Michelle Foster, 'Internal Protection/Relocation/Flight Alternative as an Aspect of Refugee Status Determination', in Erika Feller, Volker Türk and Frances Nicholson, eds, Refugee Protection in International Law: UNHCR's Global Consultations on International Protection (Cambridge, UK: Cambridge University Press, 2003), 357. See, e.g., Januzi v. Secretary of State for the Home Department [2006] 2 AC 426 (UK); Minister for Immigration and Multicultural Affairs v. Khawar (2002) 210 CLR 1 (Australia); Ranganathan v. Canada (Minister of Citizenship and Immigration) [2001] 2 FC 164. See, e.g., N02/41697 [2003] RRTA 457 (22 May 2003). Note that this case also held that the inability to live openly with a partner did not constitute 'serious harm' within the definition of persecution in the relevant Act. See also SZAHV v. Minister for Immigration [2004] FMCA 28 (28 January 2004), where the Magistrate uncritically reproduced the RRT's finding that 'in the larger cities in Ghana, in particular Accra, it seems that there is no real impediment upon homosexuals living an openly gay lifestyle': ibid., para. 31. (The Magistrate in this case did, however, find, based on S395 and S396, that the relocation reasoning had been clouded by the assumption of discretion, and remitted the matter for redetermination.) See, e.g., NAIK v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] FMCA 400 (1 September 2003) (referring to 'independent information in relation to gay bars in Nigeria': ibid., para. 14); N97/18897 [1998] RRTA 4984 (13 November 1998). See, e.g., JD (Zimbabwe) v. Secretary of State for the Home Department [2004] UKIAT 00259, where a lesbian from Zimbabwe claimed that she could not maintain a 'cloak of invisibility' because she had been exposed and the IAT held that she could internally relocate and act with discretion in order to 'attain invisibility': ibid., para. 19. In Australia see, e.g., V99/10323; N99/29824. The assumption of self-concealment continues to be embedded in relocation reasoning in some later decisions: see, e.g., 071263822 [2007] RRTA 115 (13 June 2007). Transcript of an RRT hearing quoted on judicial review upholding the original decision (which also rested on credibility concerns): NADO v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 215, para. 24. A further appeal to the Full Federal Court also failed: NADO v. Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 169 (8 August 2003). For example in RRT Reference N98/23955 (unreported, 24 September 1998) the tribunal held that the applicant should be 'able to conduct himself in a manner acceptable to his own society': p. 8 of typescript. The tribunal went on to state, 'Many societies, including our own, are homophobic' (ibid.). The decision was from the first phase of the study and is no longer available on the Australasian Legal Information Institute database but is on file with author. See, e.g., N01/36734 [2002] RRTA 898 (8 October 2002); N03/45734 [2003] RRTA 674 (18 July 2003); N02/44482 [2003] RRTA 1076 (10 November 2003). See, e.g., in Australia, SAAM v. Minister for Immigration and Multicultural Affairs [2002] FCA 444 (18 April 2002); Khalili Vahed v. Minister for Immigration and Multicultural Affairs [2001] FCA 1404 (4 October 2001); SAAF v. Minister for Immigration and Multicultural Affairs [2002] FCA 343 (28 February 2002); Nezhadian v. Minister for Immigration and Multicultural Affairs; WABR v. Minister for Immigration and Multicultural Affairs. This conclusion was held unreviewable as a question of fact in Gholami v. Minister for Immigration and Multicultural Affairs [2001] FCA 1091 (7 August 2001). In the UK see, e.g., Musavi v. Secretary of State for the Home Department [2002] UKIAT 04050 (30 August 2002), although detailed expert evidence admitted in more recent cases helped to dispel this myth: see, e.g., HS (Iran) v. Secretary of State for the Home Department [2005] UKAIT 00120 (4 August 2005). See, e.g., in the UK, Jain v. Secretary of State for the Home Department, and in Australia, MMM v. Minister for Immigration and Multicultural Affairs (1998) 90 FCR 324; see discussion in Millbank, '"A Preoccupation with Perversion"'. WABR v. Minister for Immigration and Multicultural Affairs, para. 25. See also YF (Eritrea) v. Secretary of State for the Home Department [2003] UKIAT 00177 (5 December 2003), para. 18.3 and Saeed v. Secretary of State for the Home Department [2002] UKIAT 01465 (10 May 2002), para. 6, quoting adjudicator. See T v. Special Immigration Adjudicator, para. 2. See Dauvergne and Millbank, 'Before the High Court'. S395/2002 and S396/2002, per McHugh and Kirby JJ., para. 35; per Gummow and Hayne JJ., paras 80–2. See, e.g., SZDLD v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 113 (18 February 2005). Of the 102 Australian judicial review cases in this period, 16 specifically reference S395 and S396. In addition, of the 21 judicial review cases during this period that raised discretion, five were successful. N04/48689 [2004] RRTA 679 (22 October 2004), p.10 of typescript. Concealment was framed as a 'double life' rather than a 'normal life' in N05/50670 [2005] RRTA 88 (19 May 2005), and in 071818233 [2008] RRTA 62 (15 February 2008) it was described as a 'façade'. See also 071411578 [2007] RRTA 172 (9 August 2007) for the influence of S395 and S396. For example: 'even if he was able to hide his homosexuality to reduce the risk of harm, the Tribunal finds that having to do so would be persecutory in itself given the freedom he has experienced here': N04/49627 [2005] RRTA 7 (25 February 2005), p. 31 of typescript. See also: N05/51364 [2005] RRTA 137 (29 July 2005); V05/18306 [2006] RRTA 67 (22 May 2006); 071676868 [2007] RRTA 260 (17 October 2007); 071818233 [2008] RRTA 62 (15 February 2008). Prior to 2005 there were two levels of tribunal review in the UK. Until 2002 both levels, the adjudicator and the IAT, exercised merits review; from 2002 to 2005, only the adjudicator exercised merits review. See AIT Review Report, April 2006, http://www.ait.gov.uk/Documents/AboutUs/AITReviewReport.pdf (accessed 2 May 2008); Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (c. 19) (UK). Similarly, of the 12 judicial review cases available for this period, seven raised discretion and only three of those seven were negative decisions. S395/2002 and S396/2002, para. 43 (emphasis in original). Ibid. Gummow and Hayne JJ. also found the tribunal in error because it 'did not ask why the appellants would live "discreetly"': para. 88 (emphasis in original). Ibid. Callinan and Heydon JJ. stated that 'it is clear the appellants did not seek to make a case that they wished to express their homosexuality in other than a discreet, indeed personal way. There may be good reason, divorced entirely from fear, for this': para. 108 They continued, 'in many societies, both heterosexual and homosexual couples regard their domestic and sexual arrangements and activities as entirely private': ibid. This was adopted for example in RG (Colombia) where the adjudicator and Court of Appeal on review held that the applicant had to demonstrate that external threat 'was the reason that the pattern of behaviour forced on him was different from that which otherwise he would have adopted': RG (Colombia) v. Secretary of State for the Home Department [2006] EWCA 2528 (20 January 2006), para. 12 (emphasis added). S395/2002 and S396/2002, para. 92 (emphasis added). This approach was approved in the IAT decision in MN (Kenya) v. Secretary of State for the Home Department [2005] UKIAT 0021 (28 January 2005), para. 10. S395/2002 and S396/2002, ibid., para. 106. Ibid., para. 110. IAT findings of 20 December 2004, quoted on review in Amare v. Secretary of State for the Home Department [2005] EWCA Civ 1600 (20 December 2005), para. 6. N99/28400 [2001] RRTA 846 (26 September 2001), upheld on review in SZAOD v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 89 (19 March 2004) where it was described as 'rather deftly' avoiding error identified in S395 and S396. AT (Iran) v. Secretary of State for the Home Department [2005] UKAIT 00119 (27 July 2005), para. 28. The sentence concluded, 'and still more so of a number of races considered "uncivilised" so far as they still exist.' See, e.g., the following recent Australian cases holding that the applicant was 'naturally' discreet: SZANS v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 41 (17 March 2005), para. 18, quoting the tribunal (RRT decision of 29 August 2002, not publicly available); SZATS v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FMCA 660 (11 November 2004), para. 21, quoting the tribunal (RRT decision of 29 September 2000, not publicly available, upheld on review); N00/34199 [2002] RRTA 543 (19 June 2002), pp. 7 and 11 of typescript, upheld on review in SZBSA v. Minister for Immigration and Multicultural and Indigenous Affairs [2005] FMCA 1248 (31 August 2005), para. 6, quoting RRT with approval. In the UK see Z v. Secretary of State for the Home Department [2004] EWCA Civ 1578 (2 December 2004), para. 17; Amare v. Secretary of State for the Home Department, para. 4, quoting IAT findings; EK (Uganda) v. Secretary of State for the Home Department [2004] UKIAT 00021, para. 16. At times the arguments of the relevant government have betrayed the knowledge that this 'free' choice is not so free yet is still presented as a natural one; for example in 2006 the Home Secretary argued that 'because in Algeria there are no gay rights, there are no opportunities for displaying homosexuality … and it will be impossible for him not to be discreet': B v. Secretary of State for the Home Department [2007] EWHC 2528, para. 20 (emphasis added, although note that the court did remit the case for redetermination). There have also been some rare examples in Canadian law: see, e.g., Hussain v. Canada (Minister of Citizenship and Immigration) [2004] RPDD No. 732 (19 March 2004). Including when the first instance determination in fact preceded the S395 and S396 decision: see, e.g., S135 of 2003 v. Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1521 (16 July 2004). See, e.g., Z v. Secretary of State for the Home Department, para. 20; MN (Kenya) v. Secretary of State for the Home Department, para. 27; XY v. Secretary of State for the Home Department [2008] EWCA Civ 911 (31 July 2008), para. 14; HJ v. Secretary of State for the Home Department [2008] UKAIT 00044 (18 April 2008), paras 41–2, 45. Some Australian cases implicitly took the same view, see SZBSA v. Minister for Immigration and Multicultural and Indigenous Affairs. Quoted on review, RG (Colombia), para. 17. Quoted on review, ibid., para. 6. Quoted on review, ibid., para. 7. Ibid., para. 18. Ahmed v. Secretary of State for the Home Department [2000] INLR 1. 'Although S395 was presented to the court that granted permission in this appeal as a new departure in refugee law, and for that reason justifying the attention of this court, in truth it is no such thing': Z v. Secretary of State for the Home Department, para. 16, and quoted in DW (Jamaica) v. Secretary of State for the Home Department [2005] UKIAT 00168 (28 November 2005), para. 78. See also J v. Secretary of State for the Home Department [2006] EWCA Civ 1238 (26 July 2006), para. 10. In Amare v. Secretary of State for the Home Department, the court appeared to prefer the early UK case of Jain v. Secretary of State for the Home Department. In addition, in LK (Zimbabwe) v. Secretary of State for the Home Department [2005] UKAIT 00159 (17 November 2005), the Home Secretary unsuccessfully argued on review that the adjudicator had committed a legal error by applying S395 and S396 instead of inconsistent English tribunal-level authority. HYSI v. Secretary of State for the Home Department [2005] EWCA Civ 711 (15 June 2005). Ibid., paras 33–4. AT (Iran) v. Secretary of State for the Home Department, para. 28. JM v. Secretary of State for the Home Department [2008] UKIAT 00065 (11 June 2008), para. 149. Note also the Secretary of State's argument that 'even if some modification of conduct was required out of respect for social norms' this was not persecution: ibid., para. 77 (emphasis added). HJ v. Secretary of State for the Home Department, para. 10. The case of HJ was a redetermination following a successful application for judicial review by the applicant in J v. Secretary of State for the Home Department. In J the Court of Appeal endorsed the approach of S395 and S396. HJ v. Secretary of State for the Home Department, para. 45. Ibid., para. 46. The claimant has been granted leave by the Court of Appeal to apply for judicial review of the decision in HJ: email communication with S. Chelvan, 3 October 2008. Krasniqi v. Secretary of State for the Home Department [2001] UKIAT 01TH02140 (19 June 2001), para. 2. Z v. Secretary of State for the Home Department, para. 4. In fact there were markedly fewer tribunal cases on sexual orientation available in Australia in the years 2005, 2006 and 2007 (down to 12, 9 and 20, respectively, compared with an average of around 30 tribunal decisions per year in preceding years), which could be the result of any or all of the following factors: a smaller number of actual claims, a higher success rate before the Minister's delegate (thus leading to fewer applications for review before the tribunal), or the tribunal selecting fewer cases for release. The Minister does not keep figures on the number or success rates of claims according to ground of claim so we are unable to assess the first two possibilities. However it is clear from the RRT annual reports that in the years 2006–7 and 2004–5 the tribunal released only 8% and 10% of decisions from those years, respectively, rather than its stated target of 20% of decisions: see Migration Review Tribunal & Refugee Review Tribunal Annual Report 2006–2007 (2007), 18; Migration Review Tribunal & Refugee Review Tribunal Annual Report 2004–2005 (2005), 9. No information is available from the 2005–6 annual report. This leads us to infer that the drop in the number of decisions is more likely to have been a result of this overall release policy rather than to reflect either fewer claims or a higher earlier success rates. Fifty-seven of 351 decisions prior to December 2003 disclosed significant doubts about the claimants' membership of the particular social group, while 67 of 176 cases did so afterwards. The tribunal decision is not publicly available, but its reasoning can be discerned from the application for judicial review arising from it: NAOX v. Minister for Immigration and Multicultural and Indigenous Affairs. Despite the unsuccessful attempt of the applicants to argue both bias and issue estoppel in the case, the Minister subsequently consented to remittal, and the claim was heard for a third time by the RRT in 2008, again resulting in a negative decision that is not publicly available: email communication with Tina Edwards, RRT, 22 October 2008. In the only successful judicial review case concerning discretion prior to S395 and S396, W133/01A v. Minister for Immigration and Multicultural Affairs [2002] FCA 395 (5 April 2002), the Federal Court found an error of law in the tribunal's ruling that discretion was possible because this was inconsistent with another finding that past acts of persecution based on sexual orientation had occurred: N01/37352 [2001] RRTA 381 (24 April 2001). When the case was remitted to a differently constituted RR
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