FEDERAL COURT OF AUSTRALIA

NAIS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 333

MIGRATION – refusal of protection visa by Refugee Review Tribunal – whether the RRT made a jurisdictional error in considering whether the applicants had a well-founded fear of persecution arising out of the fact that they had entered into a “mixed marriage”

Judiciary Act 1903 (Cth) s 39B

NAIS, NAIT AND NAIU v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 91 of 2003

HELY J

15 APRIL 2003

SYDNEY

THE COURT ORDERS THAT:

1.         The application is dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal (“the RRT”) made on 20 December 2002 by which the RRT affirmed the decision of the Minister’s delegate not to grant protection visas to the applicants.

2                     The application to the RRT for review was made on 5 June 1997.  The RRT held a hearing on 6 May 1998 and a further hearing on 19 December 2001.  The decision of the RRT was handed down on 14 January 2003.  The application was therefore “pending” in the RRT for a period in excess of five years.  This seems to be an extraordinary delay.

3                     The applicants are citizens of Bangladesh and arrived in Australia on 3 August 1996.  The applicants designated NAIS and NAIT are husband and wife.  The applicant designated NAIU is their daughter.  The husband is Muslim and his wife is Catholic.  When they were married the wife refused to convert to Islam.  The daughter has been baptised as a Catholic.  The husband and the wife claimed that they have a well-founded fear of persecution arising out of the fact that they entered into a “mixed marriage”.  The daughter’s claim is that she is either a member of the family unit, and entitled to a protection visa on that account, or that she has a well-founded fear of persecution in her own right arising from the fact that she is Catholic, but is the daughter of a Muslim father.

4                     The husband and the wife were married in August 1984.  They claimed that because of certain incidents which are further described hereunder, they left Bangladesh in December 1984 with the husband travelling to Saudi Arabia and the wife travelling to Kuwait for work.  They returned to Bangladesh in December 1986.  From December 1988 they lived and worked in the Australian Embassy in Bangladesh.  The daughter was born on 4 December 1989.  On 12 December 1989 the applicants left to work with the Australian Embassy in Laos and remained there until January 1996 when they returned to Bangladesh.  After what they claimed were further instances of harassment, the applicants left Bangladesh and arrived in Australia in August 1996.

5                     The husband and the wife claimed that on a number of occasions when they were living in Bangladesh they were harassed and attacked because they were involved in a mixed religion marriage.  Those claims were ultimately rejected by the RRT.  In summary the claims were:

(a)        the husband claimed that after his marriage in 1984 his family attempted to kill him, and his wife’s family tried to physically harm him.  During the first hearing in May 1998, the RRT pressed the husband on this claim and he eventually stated that some villagers had threatened him and then strung a necklace of old shoes around his neck, flogged him and then dragged him around the village.  The wife supported the husband’s claim that the villagers put a necklace of shoes around his neck and beat him.  Subsequently, both the husband and the wife recanted this claim and admitted that what they had told the RRT in regard to the necklace of shoes and the flogging in 1984 was a fabrication;

(b)        the husband said that in June 1989 when he was working with the Australian Embassy in Bangladesh, he was asked to go to the bank and was severely beaten and was bruised and bloodied when he was attacked on his approach to the bank.  The RRT did not believe this claim;

(c)        the husband claimed that in February 1996 after they returned from Laos “a man was stabbed outside the gate of their house” and that he was “very scared because I believe they may have been trying to stab me”.  The RRT accepted that there was a person murdered in the vicinity of the family home in Dhaka and that this would have created concerns regarding the applicants’ safety.  However, the RRT did not accept that this was in any way linked to the marriage between the husband and the wife;

(d)        the husband claimed that at some point a man came and banged on the door and tried to stab him.  He later conceded that this incident had not occurred and that he had fabricated this claim to strengthen his case;

(e)        both the husband and the wife claimed that in April 1996 their daughter, who was then six, was grabbed and a knife was put to her throat and the husband and the wife were threatened.  The RRT found that this incident was a fabrication;

(f)         the wife claimed that in 1996 her husband’s brother “kidnapped” the daughter.  He took the daughter from school to his home where he showed her Muslim books and tried to teach her about Islam.  The RRT accepted that the brother’s behaviour was inappropriate but the conduct was not persecutory in character.  Her uncle did not intend to cause harm to the daughter or her parents, nor was any harm occasioned by his actions; and

(g)        the wife claimed then that at some time after January 1996 she had been attacked on the way to church.  She was pregnant at the time and this led to a miscarriage.  The RRT accepted that these events occurred, but did not accept that the incident was a consequence of her marriage to her husband.

6                     Ultimately, the RRT made the following findings concerning the applicants’ claims:

“1.       The Applicants are in a mixed religion marriage, the husband being Muslim and the wife and daughter being Christian.

2.         Neither the wife’s nor the husband’s family accepted the marriage and they began to live apart from their families in 1984.

3.         Both husband and wife have shown themselves to be resourceful and to find employment both overseas and in Bangladesh and be independent of family support.

4.         They have been married since 1984.

5.         Mixed religion marriages are recognised by the State of Bangladesh.

6.         The Applicant, wife, was victim of an act of violence and she suffered a miscarriage following that incident.

7.         A murder of an unrelated person occurred in the vicinity of the family home in Dhaka.”

7                     The RRT then made the following further findings:

-                     the State recognises mixed religion marriages and does not condone or sanction discrimination of those marriages;

-                     the RRT had been unable to find any reference to particular people in Bangladesh suffering adversely as a consequence of being involved in a marriage between people of different faiths;

-                     however, such a union could, in certain circumstances, result in a couple being ostracised and bereft of communal or familial support, particularly in the case of people from rural areas;

-                     any harm a person may face for reasons of a marriage to a person of another faith will depend on the particular circumstances and demands of the family or community and whether or not they are dependent on the support from those people;

-                     the applicants (the husband and the wife) have not suffered harm amounting to persecution for reasons of their marriage in Bangladesh in the past nor do they face a real chance of harm amounting to persecution for reasons of their status as a couple in a mixed faith marriage.  Any fears they claim to hold in that regard are not well founded;

-                     the daughter did not suffer harm amounting to persecution in Bangladesh; and

-                     whilst the daughter will suffer hardship in attempting to integrate into Bangladeshi society because she is an apparently talented child who has been raised in foreign society with a strong Western influence, that does not amount to persecution.

The applicants’ submissions

8                     The husband appeared at the hearing before me without the benefit of legal assistance but with the aid of an interpreter.  Neither the wife nor the daughter was present on the hearing of the application but the husband told me that he was appearing on their behalf, and that his submissions were intended to be made on behalf of all members of the family unit.  Counsel for the Minister did not voice any objection to this course.

9                     On 4 April 2003 the husband lodged a written submission in relation to his “merits review” of protection visa application.  The written submission is with the papers and I do not propose to reproduce it here.  I endeavoured to explain to the husband, as best I could, that the proceeding before this Court is not a “merits review” of his protection visa application, but a much more confined enquiry as to the legal validity of the Tribunal’s decision.

10                  The written submission (par 3) asserts a failure on the part of the RRT to articulate the applicants’ claim.  There is no substance in this complaint.  The RRT correctly stated the nature of the claims which were made by the applicants and adjudicated upon them.  Paragraph 3 and par 5 of the written submissions asserted that the RRT did not take into account current materials in relation to the position in Bangladesh.  In fact, it did so.  The RRT had before it a Department of Foreign Affairs & Trade report of 12 June 2002 as well as the US State Department Country Reports on Human Rights Practices 2002.  Both were taken into account.

11                  An issue which the written submission invited me to consider is whether the RRT made a bona fide attempt to exercise its power.  The submission does not identify any respects in which the RRT failed to make a bona fide attempt to exercise its power.  Whilst I agree with the submission that the delay in finalising the application is prima facie extraordinary, that is not sufficient to establish failure on the part of the RRT to make a bona fide attempt to exercise its statutory powers.  There is nothing in the decision itself which leads to an inference of lack of bona fides, and no other foundation for a finding of lack of bona fides has been established.

12                  In par 9 of the written submission complaint is made about certain aspects of information given to the RRT by Mr Gamma, Dr Mukajee and Dr Santi Rozario.

13                  At RD 338 the RRT made the following statements in relation to that evidence:

“I further put to the Applicants that the Tribunal had interviewed three people concerning the situation of mixed marriages in Bangladesh.  These people were Mr. Gamma, a former president of the Bangladeshi community in New South Wales, Dr. Mukajee, an expert on Bengal and the issues in that regard and Dr. Rosario a sociologist who was herself Bangladeshi.

At those interviews Mr. Gamma stated that he, as a Muslim was married to a Christian lady and when they married he was ostracised by the Bangladeshis.  However, when asked how he became president of the Bangladeshi community he stated that he was elected to this position in an open election and that they were aware of his marriage to a Christian.

I put to the applicants that this could lead me to conclude that Bangladeshis were not overly concerned with the concept of mixed marriage or they would not have elected a person in such a marriage to the position of president.

The second person, Dr. Mukajee stated that he had never been to Bangladesh and got his information in regard to mixed marriages from the media.

I put to the Applicants that the Tribunal had been unable to find any reference to mixed marriages in the media and the Australian High Commission had not been able to either.

Dr. Santi Rozario gave evidence to the effect that people, particularly in rural communities could be ostracised by the community and that in Bangladesh people needed the community to be able to network, find employment and have social support and if this was withdrawn the consequences could be very serious.

I asked the Applicants if they wished to say anything about this material.”

14                  In the section of its decision headed “Findings and Reasons” the RRT does not make any reference to the evidence of Mr Gamma or Dr Mukajee.  At RD 350 the RRT said that it accepted the advice of Dr Santi Rozario that a union involving a mixed religion marriage could, in certain circumstances, result in a couple being ostracised and bereft of communal or familial support, particularly in the case of people from rural areas.  Thus, it is wrong to say that the RRT was influenced by the views of the other two experts in preference to the views of Dr Rozario, as it was Dr Rozario’s advice which the RRT accepted.

The application for judicial review

15                  The application for judicial review sets out five grounds.  Ground 1 asserts that the procedures required to be observed in connection with the making of the decision were not observed but there is no particularisation of this complaint, nor was it the subject of submission.  Ground 5 asserts that the applicants were not provided with an opportunity to comment on information on which the RRT relied.  Again, this is not particularised nor was it the subject of any submission.  Ground 4 asserts that the decision of the RRT is not based on proper reasoning and there is no authority to justify the decision of the RRT.  Again, no particulars of this ground have been supplied, nor was it the subject of any submission.  There is nothing in the materials to support these complaints.

16                  Ground 2 asserts that the RRT did not consider the current situation prevailing in Bangladesh.  Ground 3 asserts that the RRT’s decision was influenced by the opinions expressed by Mr Gamma.  To some extent I have already dealt with these contentions.  I should add the observation that Grounds 2 and 3 do not raise any question of law, much less any question of any jurisdictional error.  Grounds 2 and 3 merely take issue with various factual matters which were said to influence the RRT’s decisions.

17                  Ultimately the decision of the RRT rested on its findings concerning the credibility of the claims made by the applicants in relation to particular instances of harassment and violence that they said they had suffered in Bangladesh as a result of their marriage.  The RRT comprehensively rejected these claims.  The rejection of those claims was not attended by jurisdictional error.

18                  The application is dismissed with costs.

Associate:

Dated:              15 April 2003