S1137 of 2003 v Minister for Immigration - [2005] FMCA 478

FEDERAL MAGISTRATES COURT OF AUSTRALIA

S1137 OF 2003 v MINISTER FOR IMMIGRATION

[2005] FMCA 478

MIGRATION – RRT decision – Bangladeshi Hindu couple – wife renounced Muslim faith – Tribunal rejected claim of illegal marriage – no error found.

Judiciary Act 1903 (Cth), s.39B
Migration Act 1958 (Cth), ss.476, 483A, Part 8
Migration Legislation Amendment (Judicial Review) Act 2001 (Cth), Sch.1 Pt.2 cl.8

Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289
Applicants S1573 of 2003 v Minister for Immigration& Anor [2005] FMCA 47
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
SZAWW & Ors v Minister for Immigration [2003] FMCA 479

Applicants:

APPLICANTS S1137 OF 2003

Respondent:

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

File Number:

SYG791 of 2004

Judgment of:

Smith FM

Hearing dates:

15 March & 5 April 2005

Delivered at:

Sydney

Delivered on:

5 April 2005

REPRESENTATION

Counsel for the Applicants:

Applicants in person

Counsel for the Respondent:

Mr A Markus

Solicitors for the Respondent:

Australian Government Solicitor

ORDERS

Application dismissed.
Applicants to pay the Respondent’s costs in the sum of $4000.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG791 of 2004

APPLICANTS S1137 OF 2003

Applicants

And

MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

This is an application under s.483A of the Migration Act 1958 (Cth) (“the Migration Act”) which challenges a decision of the Refugee Review Tribunal (“the Tribunal”) dated 15 September 2000 and handed down on 5 October 2000. The Tribunal affirmed a decision of a delegate which refused to grant protection visas to the applicants, who are a husband and wife.
Section 483A gives the Court “the same jurisdiction as the Federal Court in relation to a matter arising under this Act”. The relevant jurisdiction of the Federal Court in a matter such as the present is under s.39B of the Judiciary Act 1903 (Cth) (“the Judiciary Act”). The present Part 8 of the Migration Act imposes limitations on that jurisdiction as a result of amendments made by the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth). However, the Commonwealth has conceded in many cases that the transitional provision in the amending Act in Sch.1, Pt.2, cl.8 has the effect that the limitations do not apply if at 2 October 2001 an applicant had brought judicial review proceedings in relation to the same decision (see SZAWW & Ors v Minister for Immigration [2003] FMCA 479 at [4] and Applicants S1573 of 2003 v Minister for Immigration & Anor [2005] FMCA 47 at [4‑8]).
In the present case, there is evidence before me that the applicants have been involved in two previous judicial review proceedings which were brought prior to the commencement of the present Part 8 limitations.
On 27 October 2000 they commenced proceedings in the Federal Court of Australia for an order of review, which were disposed of by Gyles J in judgment [2000] FCA 1944 delivered on 12 December 2000. His Honour said that no ground of review had been stated in the application, but that he had read the Tribunal decision and considered that it did not appear to exhibit any obvious error, and that there did not appear to him to be any obvious ground of appeal which the “presently unrepresented applicant has missed”. He dismissed the application in what is clearly a final judgment on its merits. No appeal was brought.
His Honour was exercising a jurisdiction which was limited by the then provisions of s.476, in particular, so as not to allow complaints to the Federal Court in relation to natural justice. No challenge based on estoppel arising from his judgment is therefore open to new proceedings raising such a ground. There might, however, be room for examining his Honour’s judgment further to consider whether issue estoppels arise in relation to some of the grounds that have now been argued before me. However, for reasons that will appear below I do not need to explore these issues further.
Following their loss before Gyles J, the applicants joined High Court proceedings which relied on grounds alleging breach of natural justice, being the proceedings that involved hundreds of parties represented by people including Ms Lie and Mr Muin. Following the Full Bench decision on the cases stated in those matters, separate proceedings were commenced by the applicants which were remitted to the Federal Court and dismissed by Emmett J on 20 February 2004 in a judgment carrying the name Applicant S1174 of 2000 v Refugee Review Tribunal [2004] FCA 289. The basis for his Honour’s judgment was that an arguable case for an order nisi had not been shown. His Honour’s judgment was therefore not a final decision on the merits, and expressly recognised that the applicants might be able to bring fresh proceedings. They then commenced the present proceedings in this Court which were filed on 18 March 2004.
I need not explore the details of their delays in coming to this Court as providing grounds for refusing relief, since I have reached a firm conclusion on the merits of their claim. I have dealt with their claim on the basis that they would be entitled to prerogative relief if they could show a ground for the issue of writs of certiorari and mandamus unaffected by Part 8, but I have been unable to find any proper grounds for the issue of those writs.
The hearing of their matter was delayed due to the applicant wife becoming ill at the commencement of a hearing set down on 15 March 2005. However, she has assured me that she is not unwell today, and has participated in the hearing with the assistance of an interpreter.
The applicants arrived in Australia in April 1998 and lodged applications for protection visas on 11 May 1998. Each of them put forward substantive grounds for claiming the status of refugee under the Convention definition, but their claims inter‑related since they concerned the circumstances of their marriage in Bangladesh as well as the position of the husband as a Hindu person in Bangladesh.
They explained this in statements attached to their visa applications which I do not need to reproduce. A convenient short summary of their claims was provided by an experienced migration agent in a submission prepared for the Refugee Review Tribunal:
The basic facts of this matter are as described by the primary applicant in his primary application. He is a Hindu, born on … in AA, Bangladesh. His wife is a Muslim, born on …, also in AA. They met while both were students at Dhaka University in … during the Ershad regime. I understand that in 1990 or 1991 (their views differ) they had established an emotional relationship, which became increasingly obvious during 1992 and 1993. Due to substantial pressure applied by his wife’s father in an effort to break the relationship, the applicant travelled to England to study in 1994 and returned to marry his wife secretly in 1996. At this time she voluntarily relinquished the name BB and instead chose to be known as CC. Subsequently they both returned to England, and it was only after their return to Bangladesh in 1998 that they discovered the extent of the antagonism their relationship had created, and the force of the cases raised against them. They were fortunate to hold visas for Australia in their passports, and they fled, on separate days, for Australia, where they applied for refugee status.
The agent’s submission put forward further statutory declarations and other documentary material in support of their claims. Relevant to grounds that were argued before me was the following passage from a statutory declaration by the husband describing his wedding:
7.I returned to Bangladesh on 19 April 1996. I arrived at DD Airport in Dhaka, but we could not meet there as it was too dangerous. Instead, I called CC at work the following day and we met at a friend’s house in EE, and also at a Dhaka College hostel. As arranged, we exchanged mala on 22 April 1996, and then CC legally abandoned Islam on 23 April 1996 and we married on 24 April 1996 at FF Temple. There were no relatives at our wedding, just close friends. I did not tell my family about the wedding beforehand, and shortly after the wedding we learned that CC’s father knew of it and had taken a case against me at EE Police Station.
8.Because of the case against me I stayed in my family village, GG, which was safe for me, but we kept meeting at a friend’s house where CC was living until I returned to England; CC remained in that house until she later went to England. My mother did not accept this sudden news of marriage to a former Muslim woman at first, but she now is affectionate towards CC and the baby.
The wife described their wedding in her statutory declaration:
10.Therefore, we made plans for a life overseas. At the end of 1994, JJ left for London. I cried that day, but I knew that there was only one way we could live together. JJ arranged all the papers for my renunciation of Islam and our wedding, and when he returned to Bangladesh in April 1996 we immediately executed the relevant papers through the courts, and were married. The whole process took five days, after which I was a married Hindu woman.
11.I did not convert to Hinduism, because this is a religion one can only be born into. However, I have adopted a Hindu name, and I am raising a Hindu child, and I have renounced my Muslim faith.
The Tribunal’s reasons contain an extensive description of matters that were discussed with the applicants in the course of a hearing which they attended on 8 August 2000. They attended in the company of their adviser. Although the transcript of the hearing is not in evidence before me, the description reads as a careful summary and I accept it as such. It includes the following passage at the start of the discussion:
At hearing before the Tribunal both applicants gave evidence. They were assisted by an interpreter in their own language and had a new adviser, Mr. Alexandrou, present. The applicant wife claimed to fear return to Bangladesh as her father “would take action against me, then there are the Muslims, even the law is against us, we have been violating the law, my problem is that I was a Muslim and now I am a Hindu, I have a son now and my son will not be accepted”. (The Tribunal notes that there is no child in any application before the Tribunal). The Tribunal asked the applicant wife what law she was talking about. She said “it is common knowledge”. It was put to her that there was no law in Bangladesh preventing either the marriage or her conversion. It was also put to her that she should know this as she attended law school. She said “I didn’t do law”. The Tribunal asked why she had referred in some documents to being bought up a Hindu and having a Hindu as a father (HH). She said that this was because she couldn’t tell the magistrate that she was a Muslim. The applicant husband said that it occurred this way, she left her family home on 22 April 1996, they lodged their documents relating to the marriage at the court on 23 April 1996 and then with some friends they had married at the Hindu temple.
It is clear that the delegate put to the applicants information that it had about the situation in Bangladesh, and in particular that “[the] Tribunal’s understanding was that Bangladesh was a secular state, with a benign form of Islam, and that people would not care about what they had done”.
The Tribunal also questioned them closely about their claim. In relation to supporting documents which had been tendered, the Tribunal said: “The Tribunal put independent information relating to Bangladesh that fraud in documentation was widespread. They said that may be so, but their documents were real”. The Tribunal raised this concern in the context of discussing the documents that had been put forward to it. I do not consider that any ground of procedural fairness arises in relation to this.
The Tribunal set out several pages of independent information which it regarded as relevant. This included a passage to which the applicants drew my attention:
DFAT Country Information Report No. 171/99 of 27/5/99, CX35245 reports on the Muslim majority’s tolerance of other religions, DFAT interviewed the Director-General of the Islamic Foundation in Bangladesh, Maulana Abdul Awal, and found that Muslims may marry non-Muslims, and that there did not appear to be antagonism to Muslims marrying non-Muslims. The report states:
Marriages between people of different religions are specifically recognised in Bangladeshi law … and such marriages are readily accepted ….
The best known mixed marriage in Bangladesh is between two leading dramatic artists. He is a Hindu and a leading playwright, actor, television newscaster and commentator on cultural affairs. She is from a prominent Muslim family and is a leading actor. They married in the early 1970s and neither has changed religion.
While Bangladesh has its religious extremists, the majority of Bangladeshi Muslims practice a tolerant form of Islam.
Under the heading “Findings and Reasons”, the Tribunal commenced by saying that it had serious doubts as to the truth of the claims of the applicants, and in particular in relation to the identity of the applicant wife based on inconsistencies in documents that had been put forward by them. However, the Tribunal said that “though I have these doubts I am prepared to accept that her claimed identity and history of change of name is true”.
The Tribunal then referred to their claim to fear harm from the applicant wife’s family who are Muslim and also from local Muslim people who are hostile to their marriage. It referred to their claim that “what they did was illegal” and said:
I do not accept that this is true. They could refer to no law of Bangladesh or independent evidence which would indicate that this is so and indeed it is contradicted by their own affidavits filed with the Magistrate wherein it is stated that she is converting as is her right as guaranteed under the Constitution of Bangladesh Part III.
The Tribunal noted the independent evidence referred to above, and it is clear that it relied upon that information when concluding:
I do not accept that their marriage is in any manner illegal and find that their claims to this effect are an attempt to exaggerate their claims and any harm they may face. I also do not accept that any court proceedings could succeed against either of them, clearly the applicant wife was not abducted and her family, and in particular her father would know of this. They have court documents relating to their marriage and change of name. I do not accept that the police would look for them, or if they did that any action would continue after the facts became known. I also do not accept that any complaint could proceed before the courts. I note the independent evidence relating to independence of the judiciary.
The Tribunal then dealt with specific claims concerning their relations with the applicant wife’s father. It found that the applicants suffered no serious harm prior to their departure to the United Kingdom nor in the United Kingdom.
The Tribunal dealt with their claims concerning their position during their brief return to Bangladesh:
They returned to Bangladesh on the 21 March 1998 and departed there on 15 April 1998. They claim that during that time they returned to the husband’s village and heard from a cousin that the “Muslims were coming”. They departed without anything happening to them. I do not accept that anything occurred at this time at all. They have submitted what claims to be a Warrant of Arrest dated 22 March 1998 for the husband and the wife from a Muslim association claiming that they should be arrested as what they did was illegal. That in fact is not true. There are no laws against what they did. This is confirmed by the independent evidence detailed above. I have considered the claimed court documents relating to this incident in the context of independent evidence relating to document fraud in Bangladesh, and also the clear evidence in this case where some documents produced are clearly fraudulent in their content (the affidavits produced by both applicants detailing that the applicant wife is born Hindu). I find that the court documents are fraudulent and I do not accept that anything occurred to them during this time.
The Tribunal then considered the implications of the applicants having not claimed refugee status in the United Kingdom, and addressed other matters, including the claim that they had been cut off from their families. The Tribunal did not accept that the applicant wife’s father would do anything about his previous concerns now. The Tribunal accepted that:
These family matters will be difficult for them on return to Bangladesh but are not of sufficient seriousness nor the type of harm that could be considered persecution within the meaning of the Convention.
The Tribunal referred to the fact that the applicants had a child, a son, who had not made a claim for a protection visa nor was included in the claims applications which had reached the Tribunal. It said:
Claims in relation to the applicants’ infant son:
The applicants’ son is not an applicant before me. I note however that even if he was I would not accept that his family background would affect him in any serious manner in his growing up in Bangladesh. He may be denied access to his extended family however this is not of sufficient seriousness nor the type of harm as could be considered persecution within the meaning of the Convention.
Finally, the Tribunal dealt with the applicants’ claims based on their being Hindu and noted that “it is apparent from the history given by the applicant husband that he has never had serious problems in Bangladesh due to his religion”. It concluded:
Overall, I find that the applicants do not have a well‑founded fear of persecution for reasons of a Convention ground. It is clear to the Tribunal that they saw this application as a means of migration to Australia, and not because they were in need of protection.
I consider that, overall, the Tribunal’s reasons read as a careful consideration of the claims put forward by the applicants and on their behalf by experienced migration agents. I can find no error which would allow the grant of writs of certiorari and mandamus to set aside the decision. I can find no failure of procedural fairness or other procedural defect in the proceedings that would allow that.
The applicants, in their applications to this Court, have not been assisted by lawyers, so far as is apparent, but have represented themselves. They have not understood the legal nature of the errors which they had to show affecting the Tribunal decision.
Their original application for review is framed in generalities which, in the absence of particulars, I cannot find substance in.
Their amended application seeks to focus their complaints better, and raises two grounds. The first says:
The Refugee Review Tribunal failed to understand the definition of refugee and also failed to consider each separate aspect of the claim of fear of persecution made by the applicants for refugee status.
In the absence of particulars, I have difficulty understanding this complaint. If it is a complaint that the Tribunal failed to deal with a clearly articulated claim put forward by the applicants, then I reject that submission (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263). I can identify no claim made by them that was not adequately identified and addressed by the Tribunal. As I have set out above, the Tribunal has dealt with all the claims of the applicants to fear persecution by reason of their religion as Hindus and by reason of religious and group concerns as persons who have married with different religious backgrounds.

The second ground in the amended application is that there was a denial of procedural fairness in that the Tribunal relied on evidence which “was improper”. This concern was developed in a written submission which they have lodged and in oral submissions made to me today.
As I understand it, their concern relates to the DFAT information which I have extracted above and which, as I have indicated, the Tribunal relied upon when not accepting that the applicants’ marriage was illegal and, as a result, that they had grounds to fear persecution by Bangladeshi authorities or with the tolerance of Bangladeshi authorities. The applicants submitted that reliance on that information was reliance on wrong information and therefore denied them procedural fairness or was otherwise in error of law.
In support of that submission, they have tendered an amount of fresh information, which was not before the Tribunal, seeking to establish that in certain circumstances mixed marriages are prohibited under Muslim law. However, that information had not been put to the Tribunal. I do not think that they can now complain about the fairness of the Tribunal making findings of fact inconsistent with evidence that was not put to the Tribunal. Moreover, I consider that the Tribunal’s identification and use of material as to the legal situation of the applicants’ marriage in Bangladesh concerned only questions of fact, and that it was open to the Tribunal to rely on the information which it relied upon. I do not accept that any error of law or procedural fairness arises out of that part of the Tribunal’s reasoning.
Their written submission contains other assertions, but, as I read them, they address the same complaint which I have dealt with above. They include complaints that the Tribunal was biased, but I read these as relying upon the asserted erroneous reliance on the wrong information about mixed marriages. I do not consider that the Tribunal anywhere showed bias in the sense of appearing not to bring an open mind to its assessment of the evidence.
There is also a complaint that “the Tribunal did not consider that the child of the applicants will never get legal and social recognition and as a result the child will be denied school, sports, social relationship”. However, on my reading of the material that was before the Tribunal, the Tribunal has adequately dealt with the position of the son in the paragraph which I have set out above.
After a careful consideration of all the material before me, I am unable to find any legal or jurisdictional error made by the Tribunal.
For the above reasons, I do not consider that the applicants have made out an entitlement to relief under s.39B of the Judiciary Act, and shall dismiss the application for that reason. I do not need to consider whether the Minister has also raised good defences by way of estoppel or abuse of process. However, I note that the applicants have now brought three unsuccessful proceedings for judicial review of a decision made in 1998.
The order I make is application dismissed.
RECORDED : NOT TRANSCRIBED
I shall order the applicants to pay the respondent’s costs in the sum of $4000.

I certify that the preceding thirty‑eight (38) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Lilian Khaw

Date: 18 April 2005