SZBSE v Minister for Immigration and Multicultural and Indigenous Affairs

[2005] FCA 774

FEDERAL COURT OF AUSTRALIA

SZBSE v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 774

SZBSE v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

NSD570 OF 2005

EMMETT J
26 MAY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD570 OF 2005

BETWEEN:	SZBSE APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT
JUDGE:	EMMETT J
DATE OF ORDER:	26 MAY 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.        the appeal be dismissed;

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

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD570 OF 2005

BETWEEN:	SZBSE APPELLANT
AND:	MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS RESPONDENT

JUDGE:	EMMETT J
DATE:	26 MAY 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The appellant is a national of Bangladesh.  She arrived in Australia on 26 February 2001, with her two infant children.  On 22 March 2001, she and her children lodged a joint application for protection (class XA) visas under the Migration Act 1958 (Cth) (‘the Act’). On 14 March 2002, a delegate of the respondent, the Minister for Immigration and Multicultural and Indigenous Affairs (‘the Minister’), refused to grant the protection visas. On 8 April 2002, the appellant and her children sought review of the delegate’s decision by the Refugee Review Tribunal (‘the Tribunal’). On 29 August 2003, the Tribunal affirmed the delegate’s decision not to grant protection visas.

2. On 21 October 2003, the appellant commenced a proceeding in the Federal Magistrates Court seeking Constitutional writ relief in respect of the decision of the Tribunal.  On 24 March 2005, the Federal Magistrates Court ordered that the proceeding be dismissed and that the appellant pay the Minister’s costs in the sum of $4,500.  By notice of appeal, filed on 13 April 2005, the appellant appeals to this Court from the orders of the Federal Magistrates Court.

3. On 4 May 2005, I directed the appellant to file and serve any supplementary notice of appeal on or before 18 May 2005 and to file any written submissions no later than five days prior to the hearing date, which I set down for today.  No amended notice of appeal was filed.  Written submissions were filed on 25 May 2005.

4. The only ground of appeal shown in the notice of appeal filed on 13 April 2005 is as follows:

   ‘The honourable trial judge did not consider the strong possibility of the applicant's persecution upon return to Bangladesh.  As a member of a particular social group the applicant will face a real fear of persecution upon her returning to Bangladesh.’

5. Having regard to the fact that the appellant appears without any legal representation, I have examined the Tribunal’s reasons in some detail and have also, of course, considered the reasons of the Federal Magistrates Court.  The Tribunal, in its reasons, recorded that the appellant claimed to have fallen in love with a Hindu man at college and that they subsequently married in a civil ceremony before two witnesses and some friends.  She claimed that the marriage was a happy one until their son was due to be born, when they debated under what religion he should be raised.

6. The appellant claimed that, in spite of an agreement to let their children chose their own path in due course, her husband applied growing pressure for their son to be raised a Hindu.  She claimed that this caused her mental conflict.  The appellant also claimed that her husband beat her, changed towards her and treated her like a slave.  The Tribunal had difficulty in conceiving what convention nexus there may be in such a claim.  The appellant made no assertion that her husband ever persecuted women or Christians, generally, for their religion.

7. The appellant’s son was born in 1989 and her daughter was born in 1993.  She claimed that she demanded of her husband that the children be allowed to be Christian because she was a Christian.  The Tribunal observed that the evidence indicated that the son and daughter were raised as Christians, suggesting that if the appellant’s husband used force to press his preferences in the raising of his children, he lost the battle. 

8. The appellant claimed that, in 1998, she was invited to an Easter gathering by Christian friends.  She attended the gathering and claimed that her attendance led to a fight with her husband and to his beating her.  She claimed that she went to the police but that they ignored her and that her husband threatened to kill her if she tried to pursue any claim against him.  The Tribunal observed that the appellant gave no evidence about any other Easters. 

9. The appellant also claimed that, in 1998, her husband put pressure on her to extract a large sum of money from her parents.  She claimed that her family refused to help and that her husband locked her out of her home.  She claimed that she and her children fled to her parents’ home in January 1999.  Her parents’ home was some nine hours journey from her marital home, yet she claimed that her husband soon knew where they were and attempted to take her home.  The appellant claimed that she was attacked, apparently by her husband, a number of times on the way home from the school where she worked and where her children also attended.  The appellant claimed that her husband would kill her if she returned home. 

10. The Tribunal found that freedom of religion is protected in Bangladesh, both in law and practice and that protection is available to people who bring cases of religion based harassment to the attention of the authorities.  The Tribunal found that mixed marriages are uncontroversial, although, in individual instances, mixed marriages often attract ill will from close relatives.  The Tribunal found that there were no special trends indicative of a real chance of the appellant being persecuted in Bangladesh simply for being Christian.  The Tribunal observed that, even if the appellant’s account of her husband’s outbursts were truthful, she was able to relocate some nine hours from the marital home and succeeded in avoiding, or at least staving off, further occasional manifestations of her husband’s violent temper.

11. The Tribunal referred to the fact that the appellant’s husband’s intrusions diminished, both in gravity and frequency, and that she was able to surround herself with sympathetic friends and relatives.  Even in the few instances where the appellant’s husband tried to accost her after the January 1999 move, she was able to scare him off merely by shouting out in public.

12. The Tribunal concluded that the appellant did not involve the police in those matters because the situation was not dire and, therefore, she did not need to do so.  The Tribunal found that the appellant’s account of her husband’s behaviour was implausible.  The Tribunal observed that one would expect to see that a person seriously contemplating murder or abduction, as the appellant claimed she feared, would do more than repeat the same old actions.  The Tribunal considered that, if the number of threats alleged to have been made and the number of assaults alleged to have been committed were correct, it was entirely incongruous that the appellant’s husband continued for over 10 years not to get his way, not even slightly or for a moment.

13. The Tribunal considered the appellant’s husband was either completely hopeless at what he was alleged to have attempted and therefore a very pitiful adversary, or the appellant was fabricating her claims.  The Tribunal considered that the appellant’s own account of the problems she had with her husband were inconsistent.  Bearing in mind the appellant’s capacity to adhere stubbornly to claims that she later contradicted, the Tribunal concluded that, even if her husband is Hindu, the claims against him are unreliable.  In any event, the Tribunal considered that the claims against the appellant’s husband lacked a vital Convention nexus.

14. The Tribunal considered that the appellant’s evidence could not support a finding to the effect that her husband was persecuting her for reasons of her being a Christian.  Far from persecuting her for her religion, he turned his back on family tradition and married her, notwithstanding that she was a Christian.  There was no evidence that the appellant persecuted, or threatened to persecute, other Christians just for being Christian.  The Tribunal considered that the evidence indicated that the appellant's husband did not persecute her children at all, let alone for being Christians.

15. The Tribunal observed that the appellant's case at best was that her husband only began to threaten and harass her because of her evidently successful resistance to his change of mind about their then future children.  The Tribunal did not accept that any claimed persecution was for reasons of the appellant’s being a woman.  There was no evidence that the appellant’s husband manifested a persecutory attitude towards any woman simply because of her status as a woman.  While credibility was a serious problem in the present case, the Tribunal did not rule out the possibility that at some stage of their marriage, the appellant's husband may have raped her, as she claimed.

16. However, the Tribunal did not accept, on the evidence before it, that the appellant’s husband did such a thing to persecute her for being a woman.  The Tribunal also did not accept that the appellant would be unable to find protection within Bangladesh from possible future assaults by her husband.  On her own evidence, the appellant moved away from her husband and he never succeeded in getting her to return.  On her own evidence, she did not have to call on anything more forceful than a shout to get him to run away.

17. The Tribunal found that there was no credible evidence to support a claim that society, or the authorities, in Bangladesh have failed, or in the reasonably foreseeable future would fail, to protect the appellant because of her status as a Christian.  The Tribunal could not find any basis on which to accept that society, or the authorities in Bangladesh, would actively or tacitly fail to provide adequate protection for the appellant from persecution by her husband, or any other party, for any Convention related reason.  The Tribunal considered that the appellant's claims failed because the Tribunal was not satisfied that the appellant faced a real chance of a Convention related persecution arising from her status as a Christian or her status as a woman.

18. The Tribunal was overwhelmingly confident that the appellant, who chose to speak for her children, as well as on her own behalf, at the hearing before the Tribunal, was not a reliable witness.  The Tribunal found that the appellant and her children travelled to Australia for the purpose of a genuine family celebration, that they were funded by family and not by sympathetic work mates as she claimed, and that they changed their mind about the visit being temporary after arriving.  The Tribunal considered that there may have been a degree of complicity from the appellant’s husband.  The Tribunal considered that the case was a fabrication.

19. The Federal Magistrates Court dealt with each of the grounds set out in the application made to that court by the appellant.  No complaint is made in the notice of appeal concerning the treatment of those grounds by the Federal Magistrates Court.  On the face of the reasons, they deal adequately and carefully with the grounds and disclose no error.

20. The grounds in the notice of appeal to this Court appear to be an invitation to reconsider the conclusion on the merits reached by the Tribunal.  The written submissions do not attempt to address any specific ground.  They are no more than an invitation to this Court to reach a different conclusion on the facts from that reached by the Tribunal on the material before it.  Thus, the written submission asserts that the Tribunal did not understand persecution when it said that the appellant’s claims involving her husband lacked a Convention nexus.

21. The submission seems to assert that the Tribunal erred in drawing a distinction between what the appellant did and what she was.  It seems to say that, if she was persecuted by her husband for resisting having their children raised as Hindus, then there was an error because her husband was persecuting her because she was a Christian and because she insisted on her children being brought up as Christians and not as Hindus.  She claimed that she was being persecuted on the ground of religion because of her desire to bring her children up as Christians.

22. In her submissions, the appellant eschewed any claim that she was persecuted for being a woman and simply asserted that she was being persecuted because she was a Christian.  The appellant claimed that the Federal Magistrates Court should have considered whether the Tribunal made a jurisdictional error about the Convention nexus issue. In essence, however, as I have indicated in the summary I have set out of the Tribunal's reasons, the Tribunal simply did not believe the appellant.

23. The final matters referred to by the appellant in her written submission concern an issue, which the Tribunal dealt with, going to her lack of credibility.  In the course of her reasons, the primary judge said that, in making its findings in relation to credibility, the Tribunal had regard to a considerable number of inconsistencies in the appellant's evidence.  Her Honour found that it was clear that there was no failure by the Tribunal to have regard to, or to consider, the evidence of the appellant’s father and brother, as was apparently claimed.  The assertion in the appellant's submissions is that the Tribunal did not consider that evidence, which constitutes a jurisdictional error.

24. The primary judge examined the material from the appellant’s father and brother.  Her Honour observed that the Tribunal acknowledged that it had received the submission and accompanying annexures comprising the evidence from the father and brother.  Her Honour dealt in some detail with the basis upon which she reached the conclusion that the Tribunal had had regard to the material.  In the absence of any further submissions on the part of the appellant, there does not appear to have been any error on the part of the primary judge in reaching the conclusion she reached.

25. When asked whether she wished to supplement her written submissions in the course of the hearing today, the appellant simply said that she has two children and would like to stay in Australia permanently.

26. There was no error on the part of the Federal Magistrates Court.  There was no error on the part of the Tribunal.  It follows that the appeal should be dismissed.

I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett.

Associate:

Dated:             10 June 2005

The Appellant appeared in person.
Counsel for the Respondent:	Ms S. Mason
Solicitors for the Respondent:	Clayton Utz
Date of Hearing:	26 May 2005
Date of Judgment:	26 May 2005