NADH v Minister for Immigration - [2003] FMCA 272

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NADH & ORS v MINISTER FOR IMMIGRATION

[2003] FMCA 272

MIGRATION – Review of decision of the Refugee Review Tribunal – application for protection visas – where father is the litigation guardian of his son – whether the applicant has a well-founded fear of persecution for a Convention reason – where a child was born out of wedlock – where there is a mixed marriage – whether the family can relocate – whether there is any reviewable error.

Migration Act 1958 (Cth)
Judiciary Act 1903 (Cth) s.39B

Muin v Refugee Review Tribunal [2003] HCA 30
Randhawa v Minister for Immigration (1994) 52 FCR 437

Applicant:

NADH, NADI and NADJ

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File No:

SZ 1346 of 2002

Delivered on:

26 June 2003

Delivered at:

Sydney

Hearing date:

26 June 2003

Judgment of:

Raphael FM

REPRESENTATION

Solicitors for the Applicant:

Bharati Solicitors

Counsel for the Respondent:

Mr Dean Jordan

Solicitors for the Respondent:

Blake Dawson Waldron

ORDERS

Application dismissed.
Applicant to pay the respondent’s costs assessed in the sum of $2,000.00.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SZ 1346 of 2002

NADH, NADI and NADJ

Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

In this matter, the applicants are a husband and wife and young child. At the commencement of the hearing before me, I made orders appointing the husband to be the litigation guardian of the child, pursuant to the rules of the Federal Magistrates Court. The husband was the primary applicant and the mother and child were members of the family unit and therefore entitled to the benefit of any protection granted to the husband.
The family arrived in Australia on 30 April 2000. On 26 May 2000 they lodged an application for protection (Class XA) visas which were declined by a delegate of the Minister on 15 June 2000. On 7 July 2000 the applicants applied for a review of that decision by the Refugee Review Tribunal. Approximately two years later, the Tribunal considered their case. At its request, the applicant attended the hearing which was scheduled for 2 September 2002. The applicant was assisted by a migration agent who submitted written submissions. On 16 September 2002 the Tribunal came to its decision to affirm the original decision of the delegate and the applicant was advised of this on 10 October 2002.
The original application for a review of the decision of the Tribunal was made by the applicant to the Federal Court in November 2002. There are four details of claim provided. Two of these set out opposing arguments to those used by the Tribunal in coming to its conclusion. One refers to the fact that the procedures that were required under the Migration Act 1958 (Cth) to be observed were not observed and the final point relates to the failure by the Tribunal to analyse an opinion of a social worker provided to the tribunal on behalf of the applicant.
At the hearing before me, the applicant was represented by Mr Bharati who had come into the matter at a late stage. When Mr Bharati read the court book, he immediately noticed that Part B papers were not included. He therefore prepared a submission based heavily on the decision in Muin v Refugee Review Tribunal [2002] HCA 30. At the hearing the Respondent filed an affidavit of his solicitor attaching the Part B documents and deposing to the fact that they were before the tribunal. Mr Bharati correctly conceded that this was the case and the matter then proceeded.
The essence of the applicant’s claim of a well-founded fear of persecution for convention reasons arises out of the fact that whilst living in Saudi Arabia he met and commenced a relationship with the female applicant who was also living and working in Ryadh. He apparently met her in about 1993 and she gave birth to the child applicant, a son, in hospital in Ryadh on 31 August 1999. At that time, the father and mother were not married. The applicant claimed that he came from a religious family of Muslims in Bangladesh. His wife is a Christian from the Philippines. The act of having a premarital sexual relationship is considered to be a Zina under Islamic Sharia law. This is a serious offence which merits heavy punishment in Saudi Arabia and possibly in other Islamic states where Sharia law is the law of the land.
The three applicants left Ryadh and moved to the Philippines. Prior to their leaving, the father had applied to the Bangladeshi embassy to obtain a passport for his son. This was refused and he gave evidence that he was criticised by members of the embassy for having a son through an illicit sexual relationship. He told the Tribunal that he was warned of dire consequences if he returned to Bangladesh. It was for this reason that the family decided to move to the Philippines.
I am not entirely clear exactly when the family arrived in the Philippines but the Tribunal notes that the father and the mother married on 24 January 2000. They had difficulties in that country because of an antagonistic attitude to their mixed marriage on the part of the wife's family. This led them to move to a separate house and, it is alleged, because of concerns which they had about the volatile political unrest between Muslim and Christian communities, they felt compelled to leave the Philippines for Australia on 29 April 2000.
The Tribunal in its decision refers at some length to the report of Associate Professor Islam of Macquarie University on the situation facing parties accused of Zina. The tribunal also had before it a report of a psychologist, Ms Celia Loneragan, from the University of New South Wales who assessed the applicant. In her conclusions, she states:
“The applicant presented as an individual who had endured a difficult period relocating twice in the time since he left Saudi Arabia in 2000. He is fearful of the repercussions should he have to return to a place where there is religious intolerance of his situation. His clinical presentation is consistent with the answers he provided. The applicant appeared to seek therapeutic support for a situation, stating that felt under considerable stress. He was preoccupied with his current situation.”
The Tribunal compared the evidence which it received from the applicant himself and on his behalf with country information concerning religious freedom in Bangladesh and the situation in the Philippines. It accepted that Zina was a serious Islamic crime and that it had contributed to the difficulties which the applicant faced in establishing the Bangladesh citizenship of his child. The Tribunal considered country information which mostly related to women who had a child out of wedlock and brought up their child as a single mother and women who had a child as a result of an adulterous relationship. The Tribunal accepted that these would be difficulty for such persons. However, the applicant family is not really in the same position as these people. They are a family unit bound together by marriage. There is no obvious indicator that the child was born out of wedlock.
The Tribunal came to the conclusion that whilst it may have been difficult for the family to resettle in the applicant husband's village some 300 kilometres from Dhakar because of entrenched conservative views, and presumably, the knowledge through the applicant's parents that the child was born out of wedlock, this would not apply if the parties relocated to a large town such as Dhakar. The Tribunal at [CB 110] said:
“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 relocate to Dhakar. The tribunal accepts the independent evidence that the conservative attitudes critical towards people having had a child prior to their marriage do not prevail in Dhakar and there is no evidence of consequences at law for premarital sexual relationships. The tribunal finds that upon relocating to Dhakar there is not a real chance that the applicants would face serious harm of having had an illegitimate child.”
The Tribunal then went on to consider the possibility of the family relocating to the Philippines. It found that because the mother and the child had Philippine passports and were therefore Philippine citizens the whole family could relocate to the Philippines without any difficulty. The Tribunal came to the view, that this being the case, Australia did not have any protection obligation to the applicant husband.
Mr Bharati made an eloquent plea on behalf of the applicants pointing out the difficulties they would have as parties to a mixed marriage in being accepted either in Bangladesh or in the Philippines. He submitted that they would be excluded from society and that this exclusion would be a form of persecution.
Mr Bharati pointed out that whilst the documentation considered by the tribunal indicated that Bangladesh was a secular country, in reality this was not the case and that it was one ruled by religious concepts.
As I pointed out to Mr Bharati, the applicants would have made better use of his eloquence before the Tribunal because the matters which he was addressing were really no more than a traverse of the Tribunal's findings as to fact. They do not constitute grounds for review under s.39B of the Judiciary Act 1903 (Cth).
Mr Bharati's criticism of the Tribunal's attitude towards the evidence submitted on behalf of the applicant, in particular the two reports to which I previously referred were criticisms of the weight which the tribunal attached to those reports. That is also a matter which is completely within the compass of the tribunal's decision making powers.
Mr Jordan who appeared for the Minister, referred me to Randhawa v Minister for Immigration (1994) 52 FCR 437 at 442 where a Full Bench of a Federal Court including the Chief Justice considered the tribunal's duties in relation to a suggestion that relocation was a possibility. The Court said:
“This further question is an important one because notwithstanding that real protection from persecution may be available elsewhere within the country of nationality, a person's fear of persecution in relation to that country will remain well-founded with respect to the country as a whole, if as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person.”
In the context of refugee law, the practical realities facing a person who claims to be a refugee, must be carefully considered. I am satisfied that the Tribunal did carefully consider the practical realities facing the applicant in relation to its suggested relocation of the family to Dhakar. Certainly, I can find no reviewable error in the manner in which it came to its conclusion in that regard.
The situation that the applicants faced in regard to the Philippines was somewhat different. Mr Bharati rightly conceded that the family would not face real persecution within the convention sense if they returned to that country although they would face continued hostility from the wife's family. The essence of the Tribunal's decision with regard to the Philippines was that it was a country to which all the family could travel and in which they could live. The Tribunal concluded that they would not be the subject of persecution in that country and therefore, it was a place in which they could have effective protection. This finding excluded an application to Australia pursuant to the Refugee Convention and the Migration Act 1958 (Cth).
In all these circumstances, I am unable to find any ground for a review of the decision of the Tribunal in this case. I would dismiss the application.
The order for costs which I make takes into account the fact that the green book was not prepared in quite as thorough a manner as is normally expected and that Mr Bharati and his clients would have been involved in costs and expenses in preparation of grounds for review and argument which were in the end unnecessary. I therefore assess the respondent's costs which should be paid by the applicant pursuant to Part 21 Rule 21.02(2)(a) the Federal Magistrates Court Rules in the sum of $2000.00.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date: