FEDERAL COURT OF AUSTRALIA

NADH v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 830

NADH AND ORS v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N 842 of 2003

ALLSOP J

29 JUNE 2004

SYDNEY

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

THE COURT ORDERS THAT:

1.                  The appeals be dismissed.

2.                  The appellants pay the respondent’s costs.

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

ON APPEAL FROM A DECISION OF A FEDERAL MAGISTRATE

REASONS FOR JUDGMENT

1                     This is an appeal from orders made by a Federal Magistrate in which the Federal Magistrate dismissed with costs the appellant’s applications for judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) affirming the decision of a delegate of the respondent Minister to refuse protection visas.

2                     The appellants are husband, wife and child.  The husband is a citizen of Bangladesh.  The wife and child are citizens of the Philippines.

3                     The claims of the appellants, as recounted in the decision of the Tribunal were as follows.  The husband was born in 1960 in Bangladesh.  He claimed to be and have been a non-practising Muslim who came from a strongly religious (he claimed dogmatic) Muslim family.  After receiving a secondary school education, he went to Saudi Arabia, where he worked.  There he met his future wife, who was also working in Saudi Arabia. She was and is a Christian.  The fell in love; their relationship blossomed; and they had a child, who was born in Saudi Arabia.  They were not married at this time.  The husband claims that when the birth of his illegitimate son became known, he was told that he had committed a serious offence.  Under strict Muslim law, a pre-martial sexual relationship is called zina; and he claimed such an offence made him liable to heavy punishment in Saudi Arabia.  He claims to have attended the Bangladeshi Embassy in Riyadh to apply for a passport for his son, but was refused because he could not show proof of marriage.  He was told, he said, by the Embassy staff of the dire consequences that faced him should he go back to Bangladesh.  He and his wife therefore decided to go to the Philippines, which they did.

4                     The Tribunal said that the husband claimed that they were given a “very cool reception” by his then fiancée’s parents.  His prospective father-in-law was a “clergyman”.  Not long afterwards they married.  They lived separately from the wife’s parents.  The Tribunal’s recounting of their reasons for leaving the Philippines was as follows:

He states that perceiving the antagonistic attitudes of his in-laws, they rented a separate house and started living there.  He states that there they got married legally on 24 January 2000.  He states that nevertheless they could not live there in peace due to “enmities” of his wife’s family. He states that they were very orthodox and harsh by nature and kept on hatching a conspiracy to alienate his wife from him.  He states that also he found there was volatile political unrest between Muslim and Christian communities there.  He states that since he is a Muslim and on the other hand his wife is a Christian they were afraid of clandestine attacks from both Muslims and Christians.  He states that therefore they were compelled to leave Philippines for Australia on 29 April 2000 and arrived here on 30 April 2000 and consider Australia as a safe place for the protection of his family.

5                     The husband claimed that his family in Bangladesh came to know of these events and that they became “highly enraged”.  The Tribunal recounted his fears of returning to Bangladesh in the following terms:

He states that in his country the parents of an illegitimate child are sometimes subjected to draconian punishment.  He states that also their society looks “with an oblique eye” at an illegitimate child and as a father he was not “in a mind to digest”.  He states that for those above reasons he was extremely afraid of going back to Bangladesh.  He states that he apprehended serious persecution if he went back there with his family members, and that their lives would be in extreme danger and it is not unlikely that they may even be killed.

6                     A migration adviser expressed the fears that the husband had for returning to Bangladesh; and the adviser also supplied an opinion as to the Muslim law of the seriousness of the crime of zina.

7                     At the hearing only the husband gave evidence.  He said that illegitimacy was not acceptable in Bangladesh and that his son could be harmed anywhere in Bangladesh.  He said he or his son could be killed. The Tribunal recounted the husband’s fears of the Philippines, as follows:

The applicant husband stated that in the Philippines he and his wife stayed some 40 km from Manila for 5 months. He said that no one harmed him or members of his family during this time.  He was asked why he did not choose to live in the Philippines with his wife.  He replied that his wife’s father is a Christian minister and preaches against pre-marital sex and his community had given them a “very cool reception”.  He said they tried to alienate his wife from him.  He said they lived with her family for only one day, and because she was upset, they left and then stayed in a rented house in the next town.  He said that his wife’s brother came and argued with them and the applicant husband stated that “I did not feel safe at all”.  The Tribunal asked what he feared and he replied that he felt “humiliated” and “isolated” and felt “they could harm me”.  He said that he feels he cannot stay in either Bangladesh or the Philippines.

8                     Submissions on relocation to the Philippines were made by the adviser and the husband, as follows:

The adviser stated that it was his submission that the relocation to the Philippines was not reasonable in the applicant’s case since “culturally he has no Philippine qualifications” and unemployment rates in the Philippines are high.  He said that although the applicant has completed high school in Bangladesh and has reasonable English language skills, he does not know the local language.  He said that his wife’s qualifications are also only at high school level.  He stated that they had both worked as receptionists in Saudi Arabia. The applicant said that it is impossible for his wife to go out and work while he looks after his son since the child is very possessive of its mother.  The applicant husband stated that he believes the situation in the Philippines is “dangerous” for him since his father-in-law does not approve of their marriage and the applicant wife’s brother had often come to try and alienate his wife from him and would argue with the applicant husband “for no reason”.  He stated that he felt it was not safe for them in the Philippines because the family wants to remove his wife from him and if so, he would lose his wife’s sponsorship of him and he would have to return to Bangladesh.  The applicant husband stated that in Bangladesh at present, the country is turning towards being a more fundamentalist Islamic state with Muslim orthodox parties on the rise.  In this regard, the adviser referred the Tribunal to an article submitted from the Internet titled:  “The courts would not regulate the fatwas, rather the fatwas would regulate the courts.”  (translated from the Bangali newspaper, Frothom Alu dated January 6, 2002).

9                     After dealing with a variety of country information the Tribunal made the following relevant findings.  It accepted that zina or pre-marital sexual relationship was a serious crime under Muslim law; but based on country information, the Tribunal concluded that attitudes in Dhaka to the earlier relationship would be more relaxed.  Also, the Tribunal did not accept that zina is a criminal offence in Bangladesh.  Nevertheless, the Tribunal was prepared to accept that:

…given the attitudes of the applicant husband’s conservative parents and of rural villagers in general, the applicants have a real chance of harm should they return to Bangladesh to live in the applicant’s husband’s village which is some 300 km from Dhaka.

10                  The Tribunal concluded, however, that it was satisfied that “if the applicants travel to, and reside in Bangladesh, they do not have a well founded fear of persecution for a Convention reason”.  They could, it was said, relocate to Dhaka.  These findings were as follows:

However, the applicants have lived abroad for many years and are used to living and working in large urban settings.  In the light of this, the Tribunal finds it is reasonable in the circumstances of their case for them to re-locate to Dhaka.  The Tribunal accepts the independent evidence that conservative attitudes critical towards people having had a child prior to their marriage do not prevail in Dhaka and there is no evidence of consequences at law for pre-marital sexual relationships.  The Tribunal finds that upon relocating to Dhaka there is not a real chance the applicants would face serious harm for reason of having had an illegitimate child.  The Tribunal finds no support for their claim that they might face such harm because of the recent article (submitted by the applicants), reporting a recent speech calling for a more intolerant Islam to be instituted in Bangladesh.  There is no independent evidence before the Tribunal that there is currently a strong movement towards Islamic fundamentalism in Bangladesh such that the rule of secular law would be overthrown and zina might become a criminal matter.

In the light of the evidence before it, the Tribunal is satisfied that if the applicants travel to, and reside in Bangladesh, they do not have a well-founded fear of persecution for a Convention reason.

11                  The Tribunal then turned to the Philippines for the purposes of seeing whether the applicants would have effective protection there.  The husband accepted that he could obtain a temporary visa with a right of employment and eventually applying for citizenship.  He said, however, that he feared harm in the Philippines.  The Tribunal’s findings in this regard were as follows:

The Tribunal accepts, the independent evidence, cited above, with regard to Christian-Muslim relations in the Philippines.  The Tribunal finds that while there are Christian-Muslim tensions in the Muslim dominated areas of the Philippines where an independence struggle is in progress, there are no reports of Muslim-Christian tension in the remainder of the Philippines and no reports of difficulties faced by mixed faith couples.  While the Tribunal accepts that the applicant wife’s family is not pleased with their marriage, the Tribunal finds no evidence that this will lead to the applicants suffering serious harm should they return to the Philippines to live.  The Tribunal finds there is no reason for the applicants to reside anywhere in the areas of the Philippines where there is Christian-Muslim conflict.  This being so, the Tribunal finds it would be reasonable, in the particular circumstances of the applicant’s situation, for them to live in the large cosmopolitan centre of Manila, or indeed in any of the non-contested areas of the Philippines.

In the light of the evidence before it, the Tribunal is satisfied that if the applicants return to the Philippines, they do not have a well-founded fear of persecution for reason of their religion or for any other Convention reason.  That being so, the Tribunal is also satisfied that the applicant husband has effective protection in the Philippines and accordingly, Australia does not owe protection obligations to the husband applicant.

12                  The Federal Magistrate could find no error of approach in the Tribunal’s reasons.

13                  Mr Zipser, of counsel, appeared on the appeal for the appellants pursuant to a request made to the Bar Association under order 80 of the Federal Court Rules.  He put forward, in careful and helpful submissions, three grounds of appeal:

(a)               in relation to return to Bangladesh, the Tribunal failed to consider whether the appellant child would have a well-founded fear of being persecuted (the “Child in Bangladesh issue”); and

(b)               in relation to the Philippines, the Tribunal erred in failing to consider whether the appellant husband and wife had a well-founded fear of persecution on the basis of attempts by the wife’s family to break up their marriage (“the Alienation issue”); and

(c)               in relation to return to the Philippines, the Tribunal erred in finding that the appellants can have effective protection in the Philippines (“the Effective Protection issue”).

14                  These issues were embodied in a proposed amended notice of appeal appended to his consolidated submissions.  I grant leave for that notice of appeal to be filed.  I order that the “Proposed Amended Notice of Appeal” appended to the “Consolidated Submission for the Appellants” stand as a filed Amended Notice of Appeal.

15                  Mr Zipser recognised that in order to succeed on the appeal the error in (a) and one of the errors in (b) and (c) in [13] above need to be demonstrated.  I will use Mr Zipser’s nomenclature to describe these issues.

The “Child in Bangladesh Issue”

16                  The appellants complain that the position of the child in Bangladesh was not dealt with.  As a child born out of wedlock (in particular one would have thought to parents of a mixed religious and racial marriage) the child’s position of potential harm was not addressed, it was said.

17                  The respondent first dealt with this complaint by saying that no separate claim was made on behalf of the child or in respect of his position.  I reject that.  The child’s independent position was adverted to in a statement of the husband and at the hearing.  If, properly understood, the Tribunal has not individually dealt with the child’s position in Bangladesh then a claim of the child has been left unconsidered by the Tribunal.  Whilst there was no adversion in the application form to the child’s individual position, the very facts themselves displayed before the Tribunal and how the matter was put to it make plain that there was before the Tribunal the separate issue of the child’s safety in Bangladesh because of his status.

18                  Notwithstanding the careful submissions of Mr Jordan who appeared for the respondent Minister, it is plain to me that the Tribunal has not dealt with the claims, and so has not dealt with a matter made compulsorily relevant by the Migration Act 1958 (Cth):  see Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42].  It is true, as Mr Jordan points out, that reference was made by the Tribunal on pages 8 and 10 of its reasons to the child and possible danger faced by him.  However, these were not part of the Tribunal’s examination of the child’s individual position.  For such a claim to be considered it would have required the Tribunal to examine material about the relevant social group to which it could be said that the child belonged.  The passing and inclusive reference to satisfaction of lack of harm are insufficient to lead me to conclude that this claim of the child was dealt with.

The “Alienation Issue”

19                  The appellants submitted that the Tribunal failed to deal with a claim of persecution against the husband. The claim was said to have been made in the statement and at the hearing and to have been embodied in the following passages from the statement of the husband and reasons of the Tribunal.

(a)    Statement dated 25 May 2000:

            “Then we flew to Philippines but unfortunately we were given a very cool reception there by the parents of my fiancé.  As the father of my fiancé was a clergyman he could not support pre-marriage relationship and having a son without marital bondage …  We could not live there in peace due to enmities of the family members of my wife.  They were very orthodox and harsh by nature and kept hatching out conspiracy to alienate my wife from me.”

(b)    Reasons p 10:

            “He replied that his wife’s father is a Christian minister and preaches against pre-marital sex and his community had given them a very cool reception.  He said they tried to alienate his wife from him …  He said that his wife’s brother came and argued with them and the applicant husband stated that ‘I did not feel safe at all’.”

(c)     Reasons p 11:

            “The applicant husband stated that he believes the situation in the Philippines is “dangerous” for him since his father in law does not approve of their marriage and the applicant wife’s brother had often come to try and alienate his wife from him and would argue with the applicant husband for no reason.  He stated that he felt it was not safe for them in the Philippines because the family wants to remove his wife from him and if so he would lose his wife’s sponsorship of him and he would have to return to Bangladesh.”

20                  The nature of the persecution was said to be the family trying to break up the marriage by harassment which was said to be an infringement of Articles 17 and 23 of the International Covenant on Civil and Political Rights as either:

(a)    an arbitrary or unlawful interference with his privacy, family or home (art 17) ; or

(b)    an interference with the family as the natural and fundamental unit of society (art 23).

21                  The persecution was said to be because of the religion and/or race of the husband.

22                  It was said that this claim was ignored.

23                  I reject these submissions.  The Tribunal dealt with the family’s antipathy to the husband.  There was no suggestion to the Tribunal that the behaviour of the wife’s family was such as to require any state protection which was not forthcoming.  The Tribunal dealt with the concerns of the husband about the attitudes of the wife’s family towards him and concluded that it would lead to no serious harm.

24                  The unwanted and, let it be assumed, prejudiced attitudes and interference of the wife’s family were directed to persuading the wife to leave the husband. No violence was employed.  No act was done for which the husband or wife could seek the protection of the Philippines authorities.  There was nothing disclosed which amounted to persecution:  see generally Minister for Immigration and Multicultural Affairs v Khawan (2002) 210 CLR 1 and Minister for Immigration and Multicultural and Indigenous Affairs v Respondents S152/2003 [2004] HCA 18.

25                  No claim of the appellants was left undealt with by the Tribunal.

26                  I see no error in how the Tribunal approached these matters.

The “Effective Protection Issue”

27                  The appellants complained that the approach of the Minister for Immigration v Thiyagarajah (1998) 80 FCR 543 to the so-called doctrine of “effective protection” based on Article 33 of the Convention was wrong and to the extent that the Tribunal relied on it to deny the existence of protection obligations for the purposes of s 36(2) fell into error.  Thiyagarajah has been said to be wrong:  NAGV v Minister for Immigration and Multicultural and Indigenous Affairs  [2003] FCAFC 144, though only Emmett J said that it should not be followed; the majority, recognising the settled body of jurisprudence in this Court applying it felt compelled to follow it.  Similar concern about the correctness of Thiyagarajah was expressed by another Full Court in NAFG v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 200 ALR 252.  However, later Full Courts (both constituted by the same bench) in NAEN v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 6 and NAHF v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 7 reaffirmed the reasoning of Thiyagarajah.  Further, those judgments recognised the entrenched jurisprudence in this Court on effective protection in Article 33 and s 36(2).

28                  In my view, it is for the High Court to change the law on this issue.  I do not propose to express a view here.  I expressed my views in V 856 and Others v Minister for Immigration and Multicultural Affairs (2001) 114 FCR 408.  I note that the Full Court dismissed the appeal in that matter:  V872/00A v Minister for Immigration and Multicultural Affairs (2002) 122 FCR 57.  An application for special leave from V872/00A was referred to a Full Court but the application was later withdrawn.

29                  This was the only attack made on the Tribunal’s reasons in this respect.  This attack therefore fails.

30                  The consequences of the failure of the appellants on the second and third issues, as is conceded, is that the error in approach as to the position of the child in relation to Bangladesh is not determinative of the appeal.  The Tribunal’s views as to effective protection in, and lack of a relevant well-founded fear on return to, the Philippines mean that the appeal must be dismissed.

31                  There is no reason apparent as to why the appellants should not pay the respondent’s costs.

32                  I am grateful to counsel for their careful and thoughtful submissions.  Mr Zipser appeared pursuant to a request made under Order 80 of the Federal Court Rules.  The Court is grateful for the assistance rendered by him in acting pro bono.

Associate:

Dated:              29 June 2004