FEDERAL COURT OF AUSTRALIA

NAQJ v Minister for Immigration & Multicultural & Indigenous Affairs

[2004] FCA 946

COURTS AND JUDICIAL SYSTEM – appeal from a decision of a Federal Magistrate – where grounds of appeal were not relied upon before the Federal Magistrate – whether new grounds have no reasonable prospect of success – whether expedient in the interests of justice to allow new grounds to be relied upon

MIGRATION LAW – appeal from a decision of a Federal Magistrate – alleged fear of persecution by reason of religion – whether clash of religious doctrine essential – whether wish not to comply with all or part of the rites of a religion sufficient – grounds of appeal to be considered in context of claims made by appellant

Migration Act 1958 (Cth) s 91R

H v Minister for Immigration and Multicultural Affairs (2000)63 ALD 43 cited

Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 cited

Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 57 approved

SZABS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 852 cited

NAQJ v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 848 of 2004

BRANSON J

22 JULY 2004

SYDNEY

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

THE COURT ORDERS THAT:

1.                  The appeal be dismissed.

2.                  The appellant pay the respondent’s costs of the appeal.

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

REASONS FOR JUDGMENT

introduction

1                     This is an appeal from a judgment of the Federal Magistrates Court exercising jurisdiction under the Migration Act 1958 (Cth) (‘the Act’).  On 6 May 2004 Federal Magistrate Barnes dismissed an application for judicial review of a decision of the Refugee Review Tribunal (‘the Tribunal’) which affirmed a decision of a delegate of the respondent not to grant the appellant a protection visa. 

2                     For the reasons set out below I have concluded that the appeal should be dismissed.

GROUNDS OF APPEAL

3                     The original notice of appeal was filed by the appellant before the reasons for decision of the Federal Magistrate were available to the appellant in writing.  It may be for this reason that it shows little, if any, connection with the decision of the Federal Magistrate.  Sackville J gave the appellant leave to file and serve any ‘amended application’ by 24 June 2004.  It is plain that his Honour’s order was intended to refer to an amended notice of appeal.  The appellant filed an amended notice of appeal, which carries the heading ‘Amended Application’ on 25 June 2004.  The respondent takes no point concerning the late filing of this document which I will hereafter refer to as the notice of appeal.  In the circumstances it is unnecessary to give further consideration to the original notice of appeal.

4                     The notice of appeal is signed by the appellant but its content suggests that it was drawn by a person with legal training.  The appellant received legal advice under the Legal Advice Scheme and additionally, as I understand it, from a law student.  The notice of appeal alleges that the decision of the Federal Magistrates Court was affected by jurisdictional error in two regards.  First, that in determining whether the harm suffered by the appellant amounted to persecution, the Tribunal failed to address her claim to have been beaten by her husband while she was five and a half months’ pregnant with the result that she suffered a miscarriage.  Secondly, that the Tribunal, in considering whether there was adequate protection from law enforcement agencies in Bangladesh, did not give consideration to the:

‘… enormous evidence that, despite the fact there are independent courts in Bangladesh, the Government and its agencies are unwilling to or unable to provide protection to all citizens, particularly to women and follow court orders.’

5                     The grounds of appeal set out in the amended application filed in the Federal Magistrates Court were:

‘Grounds

5.                  The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction in the way it dealt with my claim at RD 67.5 and 191.5 that I face dire punishment in Bangladesh under Islamic religious law for having lived in a de facto relationship in Australia.  The Tribunal dismissed this claim because I was planning to marry my partner and because I had not specifically referred to a Convention ground (RD 201.4).  It was obvious from the references to punishment under Islamic law that I fear persecution for reasons of religion.  The Tribunal never raised the possible relevance of my intention to marry and I was denied an opportunity to explain that it was irrelevant in Bangladesh and all that mattered was that I had lived together with a man outside of marriage.

6.                  The Tribunal exceeded its jurisdiction and constructively failed to exercise its jurisdiction in the way it dealt with my claims at RD 2 about the deaths of my relatives and my kidnapping.  The Tribunal dismissed these claims, in part, because I had not elaborated on them or provided supporting evidence (RD 200.3-200.8).  I would have done both if the Tribunal had ever indicated to me that it saw these as critical.’

6                     Neither of the grounds of appeal set out in the notice of appeal was relied upon before the Federal Magistrates Court.  The appellant therefore requires the leave of the Court to rely on the grounds set out in the notice of appeal.  The respondent opposes the grant of that leave.

7                     The appropriate test to be applied in determining whether the appellant should be allowed to rely on grounds not relied upon by her before the Federal Magistrates Court is whether it is expedient in the interests of justice to allow the new grounds to be relied upon.  In H v Minister for Immigration and Multicultural Affairs (2000)63 ALD 43 at [8] Katz J and I expressed the view that the interests of justice, in this sense, extend beyond the interests of the particular litigant and encompass the broad public interest in efficient judicial administration.  In Iyer v Minister for Immigration and Multicultural Affairs [2000] FCA 1788 at [22] Heerey, Moore and Goldberg JJ recognised that there is a particular sensitivity in refugee cases where adverse decisions might have very serious consequences for an applicant.  Their Honours at [23]-[24] observed:

‘Although it is in the interests of justice that decisions be made on the true merits of the case sought to be argued, the structure and integrity of the appellate process must also be taken into consideration.  It is incumbent upon parties bringing applications to the Court to review decisions of tribunals such as the Refugee Review Tribunal to make it clear from the outset what are the substantive grounds of review relied upon.  The way in which the appellant presented his application for review and his notice of appeal is unacceptable.  It is important in cases such as this that the issues to be determined by the primary judge and by the Full Court be particularised in sufficient detail to enable the respondent and the Court to understand fully what are the relevant issues to be determined.  In this context we refer again to the observations of Branson and Katz JJ in H v Minister for Immigration & Multicultural Affairs at para 19 above. 

However, in order to determine whether it is expedient and in the interests of justice that leave be given to argue new grounds it is necessary to give some consideration to the merits of the grounds raised.  That does not mean that an appellate court should enter upon a full consideration of the grounds.  To do so would make the requirement for leave meaningless.  It is sufficient to determine whether the grounds sought to be raised have a reasonable prospect of success.  We also consider it appropriate to take into account whether the appellant had the benefit of legal representation at the hearing before the primary judge.’

8                     The appellant acknowledges that she received help from someone with legal training in preparing the amended application filed in the Federal Magistrates Court.  Additionally, written submissions were filed by the appellant in the Federal Magistrates Court.  The written submissions are signed and dated by a barrister who practices in the area of migration law.  The introductory paragraphs of the written submissions read as follows:

‘1.        I have been engaged to write a submission for the applicant in support of her application to the Federal Magistrates Court.  I have not been engaged to appear for the applicant at the hearing on 6 May 2004.

2.         In preparing this submission I have been given a copy of the decision of the Refugee Review Tribunal (“the Tribunal”), but not the Court Book.  Page references in this submissions are to the decision of the Tribunal.’

I therefore proceed on the basis that the appellant had the benefit of only limited legal representation in respect of the hearing before the Federal Magistrate.

9                     The assertion made by the notice of appeal that the Tribunal failed to address the claim that the appellant suffered a miscarriage after being beaten by her husband is unsustainable.  The Tribunal gave consideration to the claim at p 17 of its reasons for decision.  It noted, amongst other things, that she had not provided any evidence, such as medical or hospital certificates, to support this claim or other claims of abuse by her former husband.  It also noted that the appellant had not sought asylum in any country that she had visited while travelling abroad on five to six occasions before her final trip to Australia.  The Tribunal concluded that it was not satisfied that the appellant had been abused by her husband.  This conclusion was plainly reached after consideration of the appellant’s claim to have suffered a miscarriage after being beaten by her husband.  As the Tribunal did not accept the appellant’s claims to have been abused by the husband, those claims did not assist the Tribunal in determining the severity of any harm that she might experience should she return to Bangladesh.

10                  The claim made by the notice of appeal that the Tribunal erred in not concluding that, despite the existence of independent courts in Bangladesh, the Government and its agencies are unable or unwilling to provide protection to all citizens, and particularly to women, must be understood in light of the case sought to be made by the appellant before the Tribunal.  The appellant did not claim to have unsuccessfully sought protection from the Government of Bangladesh or any of its agencies.  The Tribunal gave consideration to the independence of the Bangladeshi courts in the context of the appellant’s claim that her husband might file, or possibly had filed, false charges against her.  The Tribunal concluded that the courts of Bangladesh are independent and further found that they can be relied on to provide protection to those falsely charged, even if the governing party has brought those charges.  Independent country information before the Tribunal supported its finding in these regards.  Nothing placed before the Tribunal by the appellant challenged the independent country information.  As is mentioned above, the Tribunal was not satisfied that the appellant had been, or was at risk of being, physically abused by her husband.  It was therefore unnecessary for the Tribunal to consider in this context whether the Government and its agencies are unwilling or unable to provide protection to all citizens, and particularly to women, and to follow court orders.  It is theoretically possible that this ground could have relevance in the context of the appellant’s claim to have a well‑founded fear of persecution in Bangladesh arising out of her conduct in Australia, to which I give consideration below.  However, I have concluded below that the Federal Magistrate did not err in her consideration of the Tribunal’s decision concerning this claim which the Tribunal rejected.  This ground also has no reasonable prospect of success.

11                  The appellant is therefore refused leave to rely on the only two grounds of appeal identified in the notice of appeal.

12                  However, in response to questions from me, the appellant reiterated that she fears persecution in Bangladesh should it become known there that she lived for a period of time in Australia with her now husband in a de facto relationship.  As indicated above, this is an aspect of the appellant’s claims that was given consideration by the Federal Magistrate.  The respondent did not object to my giving consideration to it.  I consider that I should do so.

13                  The reasons for decision of the Tribunal deal with the claims relating to the appellant’s de facto relationship in the following paragraph:

‘The Applicant’s adviser submits that the Applicant will be regarded as living in sin under Islamic law because she has been living in a de facto relationship while she has been in Australia and further submits that, if this relationship was known, then she could well face problems and serious harm in Bangladesh.  The Tribunal accepts the Applicant’s claim that she is planning to marry her partner in Australia shortly and finds that this would be directly relevant to the Muslim’s community’s perception of their relationship and the way it is seen by the Islamic religion.  The Tribunal also finds that no Convention ground is claimed or established.  Accordingly, the Tribunal has not been able to satisfy itself that any harm the Applicant may experience on this basis would be serious harm amounting to persecution for a Convention reason if she goes back to Bangladesh, especially if she is still planning to marry or indeed is again married at that time.’

14                  Before the Federal Magistrate, by her written submissions signed by counsel, the appellant advanced two complaints in respect of the finding recorded in the above paragraph.  Her first complaint was that it was not necessary for the appellant to specify a Convention ground in order to make a claim.  Her second complaint was that the Tribunal overlooked that, even should the appellant marry, the risk of persecution because of her earlier behaviour would remain.

15                  The reasons for decision of the Federal Magistrate include the following passage:

‘… The applicant suggested that the material before the Tribunal and the manner in which her claim was put indicated that she relied on Convention grounds of religion or membership of a particular social group.  She claimed that it was obvious from the material that she feared persecution for reasons of religion.  In the written submissions she also claimed that a claim on the basis of membership of a particular social group, being women in Bangladesh who had lived or are living in de facto relationships, arose on the material.  However, neither such ground emerges from the circumstances and material placed before the Tribunal in the manner contended for by the applicant.  The Tribunal was entitled to take the view that no Convention basis for the harm the applicant she said that she faced had been made out and that any harm she may experience given her proposed marriage would not be serious harm amounting to persecution.

The claim was not made on the basis of a fear of harm because of the applicant’s religious beliefs or practices but rather because of her actions, which others would think were wrong or inappropriate because of their religious beliefs.  It was not suggested that this was a case of a clash of religious doctrines or of persons of one religion seeking to persecute those of another.  The applicant’s claim was that she would be subject to harm because of something she had done in the past.  Similarly, in relation to the claim of fear of persecution by reason of membership of a particular social group raised in the written submissions, as the respondent submitted, the applicant’s fear flowed not from what she was but from what she had done.  (see Applicant A v MIEA (1997) 190 CLR 225, at 242, 243 per Dawson J in which His Honour referred approvingly to what Black CJ had said in Morato v MILGEA (1992) 111 ALR 417, to the effect that the ground of membership of a particular social group requires that persecution be on account of “what a person is – a member of a particular social group – rather than upon what a person has done or does.”  As both Dawson J and Black CJ acknowledged, this distinction cannot be taken too far as there could well be cases where what someone had done became part of the definition of what or who they are.  However it indicates a distinction in general terms between laws or practices which single out members of a social group and generally applicable laws or practices that apply to persons who engage in particular behaviour or place themselves in a particular situation.  Furthermore, in this case the applicant had articulated a reason why Islamic people in Bangladesh may disapprove of her but there is no material to which the court’s attention has been drawn put before the Tribunal to give it reason to think that the State would be complicit in harming the applicant or that it would be or unable to prevent harm.  The Tribunal found that it was not satisfied that any harm the applicant may experience would be serious harm amounting to persecution.’

16                  I respectfully suggest that the reasoning intended to be encapsulated in the above passage from the reasons for decision of the Federal Magistrate is not entirely clear.  To the extent that the passage might suggest that persecution on the ground of religion must involve ‘a clash of religious doctrines or of persons of one religion seeking to persecute those of another’,I doubt that it is accurate.  In Prashar v Minister for Immigration and Multicultural Affairs [2001] FCA 57 at [19] Madgwick J observed:

‘In my opinion, if persons are persecuted because they do not hold religious beliefs, that is as much persecution for reasons of religion as if somebody were persecuting them for holding a positive religious belief.  The Convention protects people in relation to the subject matter of religious belief.  It does not protect believers and leave non-believers to the wolves.’

17                  Paragraph 7.2 of the Joint Position paper prepared by the Council of the European Union on the basis of article K.3 of the Treaty on European Union states:

‘Persecution on religious grounds may also occur where such interference targets a person who does not wish to profess any religion, refuses to take up a particular religion or does not wish to comply with all or part of the rites and customs relating to a religion.’ (cited in M Symes & P Jorro: Asylum Law & Practice, LexisNexis UK, London, 2003, p 149, fn 7)

18                  In this case it may have been open to the Tribunal to find that the appellant does not wish to comply with all of the rites and customs relating to the Islamic religion in that she does not accept a ban on living in de facto relationships.  Had the Tribunal made such a finding, it may have been open to it, subject to s 91R of the Act, to conclude that any persecution that the appellant faced as a consequence would be persecution for reason of religion.

19                  The critical issue, however, is whether the Magistrate erred in not finding that the decision of the Tribunal was affected by jurisdictional error arising from its consideration of the appellant’s claims to have a well‑founded fear by reason of having lived in a de facto relationship in Australia.  If the decision of the Tribunal was not affected by jurisdictional error in this regard, the analysis of the Federal Magistrate need not be subjected to more careful scrutiny. 

20                  Although the Tribunal’s reasons are not in this regard expressed with clarity, it seems that the Tribunal concluded that the appellant’s planned marriage would ameliorate the Bangladeshi community’s, and the Islamic religion’s, adverse view of her earlier de facto relationship.  On the basis of this conclusion the Tribunal seems to have concluded that she would not suffer harm that was sufficiently serious to amount to persecution because she herself had lived in a de facto relationship in Australia. 

21                  The reasons for decision of the Tribunal do not reveal the evidence or other material that informed the Tribunal’s finding that marriage would ameliorate the way in which the Bangladeshi community and Islamic religion view the appellant’s conduct of living in a de facto relationship in Australia.  As I observed in SZABS v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 852 at [17]:

‘…it is appropriate for the Tribunal to bear in mind that what is improbable in one place or cultural setting might be unremarkable in another place or in a different cultural setting. … The Tribunal is under a duty to do all that it can to ensure that its decisions are not affected, whether consciously or unconsciously, by difficulties that it might experience in empathising with the life experience of the applicants that come before it. ….’

22                  However, no complaint has been made, either before the Federal Magistrate or in this Court, of any denial of procedural fairness to the appellant by the Tribunal.  Nor was any evidence placed before the Federal Magistrate tending to show any denial of procedural fairness by the Tribunal.  As has been mentioned, the appellant had legal assistance in respect of her application to the Federal Magistrates Court.  The contention that the Tribunal ‘overlooked’ that the appellant might be persecuted because of her earlier behaviour is unsustainable.  The Tribunal’s finding that the appellant’s proposed marriage, when effected, would improve her moral standing in the eyes of the Bangladeshi community and the Islamic religion is therefore to be accepted.

23                  The finding by the Tribunal that the appellant would not suffer serious harm amounting to persecution in Bangladesh by reason of having lived in a de facto relationship in Australia amounted, in the circumstances, to a finding that she would not suffer persecution by reason of religion.  The Tribunal found that her marriage would, in effect, protect her from serious harm on religious grounds. 

24                  There was no evidence or other material before the Tribunal which suggested that the appellant’s de facto relationship in Australia would make her a member of a social group in Bangladesh.  It was not suggested, for example, that there was in Bangladesh a social group constituted by or including individuals, or alternatively women, who had disregarded the rules or customs of Islam concerning sexual morality.  The existence of a group of this kind might be thought to be unlikely having regard to the Tribunal’s finding that the appellant’s marriage would ameliorate the Bangladeshi community’s adverse view of her earlier de facto relationship.  It was therefore unnecessary for the Tribunal to give consideration to whether the appellant would suffer persecution in Bangladesh for reasons of membership of a particular social group.  No relevant social group was self‑evident and none had been identified by the appellant or her adviser.

25                  I observe incidentally that, had the Tribunal taken the view that there was a real chance that the appellant would suffer persecution in Bangladesh for reason of her religion or membership of a particular social group, it would have been necessary for it to give consideration to s 91R of the Act.  In particular, the Tribunal would have been required to determine whether either religion or membership of a particular social group was ‘the essential and significant reason’ for the persecution, whether the persecution would involve ‘serious harm’ to the appellant and whether the persecution would involve ‘systematic and discriminatory conduct’ (s 91R(1)).  Additionally, as the appellant lived in the de facto relationship in Australia, the appellant would have been required to satisfy the Tribunal that she engaged in the conduct of living in a de facto relationship otherwise than for the purpose of strengthening her claim to be a refugee (s 91R(3)).

26                  For the above reasons an appeal against the decision of the Federal Magistrate on the ground that her Honour erred in her consideration of the decision of the Tribunal so far as it concerned the appellant’s claim to have a well‑founded fear of persecution based on her de facto relationship must fail.

conclusion

27                  The appeal will be dismissed with costs.

Associate:

Dated:              22 July 2004