Applicant S76 of 2003 v Minister for Immigration & Multicultural & Indigenous Affairs

Federal Court of Australia|2004-08-26|Before: Heydon J, Gaudron J, Gummow J, Branson J

INTRODUCTION 1 This proceeding, in which the applicant seeks an order quashing a decision of the Refugee Review Tribunal ('the Tribunal'), was initiated in the High Court of Australia on 5 March 2003. On that day an affidavit sworn by the applicant, which annexed a draft order nisi for constitutional writs, was filed in the High Court. On 25 August 2003 Heydon J ordered, amongst other things, that: '[t]he further proceedings in this application (including any application for enlargement of time) be remitted to the Federal Court of Australia.' 2 In Applicants S61 of 2002 v Refugee Review Tribunal [2004] FCAFC 150 at [32] I concluded that an order made by Gaudron J in similar terms to the order set out above effected a remittal of the matter before the High Court to this Court. I observed in that case at [21]: 'Section 44 of the Judiciary Act recognises that federal jurisdiction is jurisdiction concerning matters. The authority which s 44 vests in the High Court is an authority to remit any matter, or any part of any matter, that is at any time pending in the High Court to another court that has jurisdiction with respect to the subject-matter and the parties.' 3 In this case it is not self‑evident that Heydon J intended to remit the whole matter, in the sense of the whole justiciable controversy between the parties concerning the applicant's entitlement to judicial review of the decision of the second respondent, to this Court. The applicant is the plaintiff in a High Court proceeding in which Gummow J, acting in reliance on s 18 of the Judiciary Act 1903 (Cth) ('the Judiciary Act'), stated a case for the consideration of the Full Court. The Full Court's determination of the case stated by Gummow J is reported as Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476. However, no final orders have been made in the proceeding in which Gummow J stated the case for the consideration of the Full Court. 4 The issue of the intended effect of the order of Heydon J assumed practical significance because, when the application remitted to this Court was called on for hearing, the applicant sought leave to file an amended application. The proposed amended application did not refer to the ground identified in the draft order nisi annexed to the affidavit filed in the High Court on 5 March 2003; it identified fresh grounds for the application for constitutional writs. 5 If the order of Heydon J, properly understood, remitted to this Court only that part of the justiciable controversy between the parties as concerned the applicant's claimed entitlement to constitutional writs on the grounds identified in the draft order nisi, it would have been inappropriate for me to grant the applicant leave to file, and thereafter rely on, the proposed amended application. To do so would result in this Court purporting to exercise jurisdiction in respect of a part of the relevant matter that had not been remitted to this Court by the High Court. 6 However, if the order of Heydon J, properly understood, remitted to this Court the whole of the justiciable controversy between the parties that remained unresolved following the determination of the case stated to the Full Court by Gummow J, there would seem to be no impediment to this Court allowing the applicant to rely on fresh grounds to support his claim for relief by way of constitutional writs. 7 The applicant and the first respondent urged me to proceed on the basis that Heydon J intended to refer the whole of the relevant matter to this Court. The second respondent took no active part in the hearing before me having filed a submitting appearance. 8 It may be that the parties had overlooked drawing to Heydon J's attention the applicant's existing proceeding before the High Court in which, notwithstanding the determination by the Full Court of the case stated by Gummow J, no final orders had been entered. On receiving an assurance from the legal representatives of the parties respectively that they would cooperate in causing the High Court proceeding in which Gummow J stated a case to the Full Court to be brought to an end by dismissal or discontinuance, I agreed to proceed on the basis urged on me by the parties. 9 The applicant was granted leave by consent to file an amended application but on the basis that the applicant sought in the first instance, as he had done in the High Court, an order nisi for the issue of constitutional writs. The amended application will hereafter be referred to as 'the Application'.

background facts 10 The applicant travelled to Australia on an Indian passport in the name of Sagar Sen, arriving on 7 March 1997. About three weeks later he was issued with a Bangladeshi passport, in the name that he has thereafter used, by the Bangladeshi High Commission in Canberra. The applicant applied for a protection visa on 2 August 1997. 11 The applicant's application for a protection visa discloses that he was born in 1971 and that he obtained the degree of Bachelor of Arts in 1995. He worked from 1993 until August 1996 in his family's business in Matlab. At the end of that period he occupied the position of manager. The application also discloses that he married on 15 August 1996 in Dhaka. 12 The applicant's visa application gives the following explanation for his having left Bangladesh: 'I was compelled to leave Bangladesh because I disobeyed my religious advice and got married to a girl who was Hindu in religion, she belongs to the same district as me. We had an affair for long time. I married her according to Hindu law & custom. Consequently I was personally attacked & bashed by some of the so called religious people. My family has been taunted and jeered by local fanatics. In fact, at that stage I could not bear all these any more and was forced to leave Bangladesh.' 13 In June 1997 a delegate of the first respondent refused to grant the applicant a protection visa. Following an application to the Tribunal for review of the decision of the delegate, the Tribunal affirmed the delegate's decision on 24 May 2000. An application to this Court for judicial review of the decision of the Tribunal succeeded and the matter was remitted to the Tribunal for further consideration. On 7 February 2001 the Tribunal, differently constituted, conducted a fresh hearing and on 6 March 2002 the Tribunal made the decision the subject of this proceeding. The Tribunal's decision was handed down on 28 March 2002.

decision of the tribunal 14 The Tribunal accepted that the applicant is a citizen of Bangladesh who was born a Muslim but converted to Hinduism and married a Hindu woman in a Hindu marriage ceremony. Although finding the applicant's evidence that he faced persecution in Bangladesh over a fatwa 'curious', the Tribunal accepted, for the purpose of reaching its decision, that a fatwa had been passed on the applicant by his village council of elders, known as a salish, because of his conversion and marriage. 15 The Tribunal nonetheless was not satisfied that the applicant is owed protection obligations in Australia under the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol Relating to the Status of Refugees (together 'the Convention'). The Tribunal's reasons for not being satisfied that the applicant is owed protection obligations in Australia under the Convention were summarised by the Tribunal in the following way: '• circumstances have changed in relation to fatwas in Bangladesh following a High Court ruling in 2001; • the influence of village salishes is extremely limited, and; • relocation within Bangladesh is a reasonable option for the applicant to avoid any problems from the fatwa.' 16 The Tribunal found that the applicant could avail himself of the protection of the authorities of his own country over a fatwa as fatwas have been declared illegal by the Bangladeshi High Court. The Tribunal was, in any event, not satisfied that the applicant's decision to come to Australia was based on a genuine and well‑founded fear of persecution over a fatwa. It found that the influence of village salishes was extremely limited and the number of those severely harmed by fatwas 'very, very small'. The Tribunal noted that the applicant was well‑educated, had access to independent funds which allowed him to move around and outside Bangladesh and had friends and sympathisers who came to his Hindu wedding and gave him shelter afterwards in Dhaka. 17 The Tribunal accepted that when the applicant returns to Bangladesh he might face some difficulties from individuals such as family members and some others who object to his actions in converting to Hinduism to marry a Hindu. However, it was not satisfied that he faces persecution as the independent evidence, it concluded, shows that Bangladeshi society does not tolerate persecution of those who have stepped outside their traditional communities. The Tribunal was - 'confident that among Dhaka's population of some 10 million the applicant would be able to find a sufficiency of liberal‑minded people among whom he could live at ease and in safety.'

grounds of application 18 The grounds of the Application are as follows: '1. The Tribunal found that the applicant "could avail himself of the protection of the authorities in his own country over a fatwa as fatwas have been declared illegal by the Bangladesh High Court. (RD 214.5) The Tribunal fell into jurisdictional error in making this finding. Particulars a) The Tribunal ignored relevant material, being a 2001 US Department of State report, in its possession. b) The Tribunal failed to obtain current country information in relation to a matter on which it based its decision. c) In connection with the Tribunal's failure to obtain current country information in relation to the matter on which it based its decision, the Tribunal failed to accord procedural fairness to the applicant and/or misconceived its obligations under s 424 of the Migration Act. d) The Tribunal failed to consider, or properly speculate as to, whether a decision of the High Court of Bangladesh in January 2001 concerning fatwas might be overturned on appeal or not enforced. 2. The Tribunal found that the applicant did not have a "genuine fear of persecution over a fatwa". (RD 215.3) The Court should grant the applicant relief despite this finding. 3. The Tribunal found that the applicant could relocate to a larger urban centre such as Dhaka. (RD 216.4 and 217.3) The Court should grant the applicant relief despite this finding.'

submissions of the applicant 19 The applicant, by his counsel, argued that the decision of the Tribunal was based on a ruling of the High Court of Bangladesh given in early January 2001. On that basis it was contended that the decision of the Tribunal was affected by jurisdictional error because, by the time the Tribunal made its decision, there was publicly available information in the form of a US Department of State report ('the US State Report') that the ruling of the High Court had been stayed and that there had been violent public protests in Bangladesh about the ruling. The applicant submitted that if the US State Report was in the possession of the Tribunal at the time that it made its decision, the Tribunal ignored relevant material in its possession. He further submitted that, if the US State Report was not in the possession of the Tribunal at the time that it made its decision, the Tribunal had an obligation to take reasonable steps to investigate the applicant's concerns by way of a search of country information around the time the Tribunal made its decision. Alternatively the applicant argued that there is reason to believe that the Tribunal undertook further country information research following the hearing on 7 February 2001 and that, having done so, the Tribunal should have taken reasonable steps to obtain current country information on the status of the High Court ruling of January 2001. 20 Additionally, the applicant contended that the Tribunal, by its failure to speculate about the possibility of the High Court not enforcing its ruling, or the ruling going on appeal, committed jurisdictional error. 21 Finally, the applicant contended that the errors made by the Tribunal with respect to the ruling of the High Court infected its alternative findings that the applicant does not have a genuine fear of persecution and could find safety in a large urban centre such as Dhaka.

consideration 22 It is convenient to consider first the accuracy of the proposition advanced by the applicant that the decision of the Tribunal was based on the ruling of the High Court of Bangladesh of January 2001. 23 The Tribunal found that the applicant could avail himself of the protection of the authorities in his own country over a fatwa, as fatwas had been declared illegal by the High Court. The reasons for decision of the Tribunal show that this finding was firmly based on the ruling of the High Court of January 2001. However, after recording this finding, the reasons for decision of the Tribunal go on: 'It is relevant to state that, independently of the reasons just stated, I am not satisfied that the applicant's decision to come to Australia was based on a genuine and well‑founded fear of persecution over a fatwa. Independent evidence shows that the influence of village salishes was extremely limited and that the number of those severely harmed by fatwas was very, very small. It was reported during the fatwa furore in Bangladesh in the mid‑1990s that five fatwa sentences had been passed against women and that of those, two had died as a result of being horribly whipped (DFAT cable DA88 of 22/12/94, CX4597). Those cases, set against the Bangladeshi population of women alone at 60 million at the time, do not suggest that fatwa activity was significant or tolerated or unchecked. On the contrary, independent evidence states that fatwas generally carried "little weight" (Lesnes, Corine: Bangladeshi Women begin to Fight Back, Guardian Weekly, 23/7/95, (CX10337), that the Bangladeshi Government had "sought to clamp down on the activities of the illegal salish", and that "most Bangladeshis are not fundamentalists" (Montagnon, Peter: Survey of Bangladesh, Financial Times, 24/3/95, via Lexis/Nexis, CX15786; Treatment of Women by the Village Salish, The Economist, 22/10/04, CX3925). Given all of this, I am not satisfied that the applicant faced a real chance of harm or had found himself unable to avail himself of protection within Bangladesh in relation to a fatwa. He was well educated, he had access to independent funds which allowed him to move around and outside the country, and friends and sympathisers who came to his Hindu wedding and gave him shelter afterwards in Dhaka. With these, and aided by the police and those organisations active in combating fatwas, I consider that the applicant would have been able to avoid those who wished him harm and to find protection against them. Evidence submitted by the applicant's supporter, Mr Akhter Hossain (p. 6), shows that people are able to escape fatwas by moving out of the area where the relevant salish operated, while staying within Bangladesh. I am of the view that the few people who have been reported as having been harmed by fatwas were/ are people who were attacked before they could take action to protect themselves or who had no access to help and no independent means. It is relevant to restate here that no country can guarantee protection to its citizens in respect of any harm. Be that as it may, the applicant has demonstrated by his own actions that he was not one of those people who exhibited a vulnerability to harm: he left his village before a fatwa was issued, he had money to re‑establish himself elsewhere, and he had friends who helped him along the way. I am thus not satisfied that he lacked the means and ability to find safety within Bangladesh from the fatwa passed against him in his village.' 24 In considering the significance of the above passage from the Tribunal's reasons for decision, it must be borne in mind that the applicant left Bangladesh in 1997. For these reasons the Tribunal's consideration of his capacity, before he left Bangladesh, to avoid problems arising from any fatwa was not affected by the High Court ruling of January 2001. The Tribunal was, of course, not strictly required to determine whether the applicant had a subjective fear of persecution when he left Bangladesh in 1997. However, the finding that the applicant did not have a subjective fear of persecution when he left Bangladesh involved a rejection by the Tribunal of the claim made by the applicant that he had left Bangladesh to avoid persecution. The applicant did not identify anything that occurred later than 1997 as providing a basis for his asserted well‑founded fear of persecution. For this reason, the above passage properly understood involves a rejection by the Tribunal of the applicant's claim to subjectively fear persecution in Bangladesh. In the unlikely event that the applicant had come, after the date of the Tribunal hearing, to fear persecution in Bangladesh for a reason related to the High Court ruling, it was open to him, possibly through his legal representative, to inform the Tribunal of this. 25 Additionally, the reasons for decision of the Tribunal include the following passage: 'I am not satisfied that he would face any significant difficulty over his conversion and mixed marriage in settling down a city such as Dhaka, which is rapidly becoming a "westernised city with a consequent moderation of attitudes towards marriage, de facto relationships, women's rights, etc." (DFAT cable DA1206 of 11/6/96, CX17737). While other people might not wish to have made such major changes in life as the applicant has done, independent evidence (Ibid., also CX35245) does not suggest that general society would ostracise the applicant or cause him to suffer particular hardship over his actions. Given his evidence that even in his own village some Hindus and Muslims enjoyed good relations, I am confident that among Dhaka's population of some 10 million the applicant would be able find a sufficiency of liberal‑minded people among whom he could live at ease and in safety. I note from the wedding photographs submitted by the applicant of his Hindu wedding in Dhaka that the ceremony had been attended by many guests. This confirms that there are people sympathetic to his actions to convert and take a Hindu wife who will form a network of support for him in Bangladesh. In such an environment, I consider that his wife would not longer have to face disapproval of her marriage such as she reportedly encounters from the applicant's ancestral family and rigid Islamists of her village. (It is relevant to state that I am not satisfied that such discrimination as she might be facing is significant if the applicant has been willing to leave her there all these years while he himself lives free of such problems.) I accept that the applicant faced anger from his ancestral family over his marriage and conversion and that he might have been disowned by his family over these actions. While this is sad, I am not satisfied it places the applicant in a position where he would suffer hardship amounting to persecution. I find that he would be able to avoid direct blasts of family displeasure and acrimony over his marriage and conversion by continuing, as he has done since 1997, to live apart from his family. He is an adult and has been living independently of his family for some years in Australia, maintaining himself by his own efforts, and I am satisfied that he could do the same back in Bangladesh where he would also have the support of his Hindu in‑laws and their network of friends.'

Again it is clear that the findings contained in the above passage are not based on the ruling of the High Court of Bangladesh of January 2001. They are based on information concerning the city of Dhaka, knowledge of the skills and recent experiences of the applicant and the applicant's experiences prior to his leaving Bangladesh in 1997.

26 As the grounds upon which the applicant seeks the issue of constitutional writs reach to only one of the three independent bases upon which the Tribunal concluded that the applicant is not a person to whom Australia owes protection obligations under the Convention, it is strictly unnecessary to give consideration to those grounds. The decision of the Tribunal is supported by two grounds to which the applicant's complaints do not reach; that is, that he does not have a subjective fear of persecution in Bangladesh and that, even if he did, he could avoid the persecution by relocating within Bangladesh. However, I consider it appropriate to record some brief observations concerning the grounds of relief relied upon. 27 In my view, it may be inferred that the Tribunal was not aware of the contents of the US State Report. The authorities do not support the contention that the Tribunal had an obligation to take reasonable steps to investigate the applicant's alleged concerns by way of a search of country information around the time of the Tribunal's decision (see, for example, WAGJ v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCAFC 277). Indeed, in the circumstances of this case, where the applicant enjoyed the benefit of representation before the Tribunal by a legal practitioner who had: (a) raised with the Tribunal the possibility of the High Court ruling being reversed on appeal; and (b) added that he would like to be able to pursue the issue further;

the Tribunal was entitled to proceed on the basis that the applicant had accepted the responsibility of informing the Tribunal of any relevant developments concerning the High Court's ruling.

28 In any event, as counsel for the first respondent contended, a failure to search for and obtain the most up‑to‑date factual information available does not constitute jurisdictional error in the context of the Migration Act 1958 (Cth). The circumstances of this case are not comparable to those considered by the High Court in Minister for Aboriginal Affairs v Peko‑Wallsend Limited (1986) 162 CLR 24 ('Peko‑Wallsend'). In that case the Minister had ignored material, of which he had actual or constructive knowledge, that might have had a direct bearing on the justice of the decision that the Minister was required to make. Peko‑Wallsend is not an authority concerning the failure to seek or find material supportive of an applicant's case.

conclusion 29 In view of the conclusion recorded at [26] above, the appropriate order in this case, in my view, is an order dismissing the application for an order nisi for constitutional writs. The applicant will be ordered to pay the costs of the first respondent. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Solicitor for the First Respondent: Australian Government Solicitor

Date of Hearing: 18 August 2004

Date of Judgment: 26 August 2004

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