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[2003] FMCA 272
respondent. The application was dismissed. The applicants were ordered to pay the respondent’s costs, assessed at $2,000 (orders; reason [20]).
The Court dismissed the family’s challenge to the Tribunal’s refusal of protection visas. It considered that the applicants’ arguments mainly disagreed with factual findings and with the weight the Tribunal gave evidence. The Tribunal had considered whether the family could relocate to Dhaka and whether the Philippines offered effective protection. The Court found no reviewable error in those assessments. The applicants were ordered to pay $2,000 in costs.
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NADH, NADI and their young child, NADJ, applied for protection visas after arriving in Australia on 30 April 2000. The father was the primary applicant. At the hearing in the Federal Magistrates Court, he was appointed the child’s litigation guardian (reason [1]). A delegate refused the visa applications on 15 June 2000. The family sought review by the Refugee Review Tribunal, which affirmed the refusal in September 2002. They were notified of that decision on 10 October 2002 (reason [2]).
No linked legislation citations have been extracted yet.
The claim arose from the father’s relationship with the mother while both were living in Riyadh. The father was from a Muslim family in Bangladesh, while the mother was a Christian from the Philippines. Their child was born in Riyadh on 31 August 1999, before the parents married on 24 January 2000. The father said that premarital sex was treated as Zina under Islamic Sharia law and could attract serious punishment in Saudi Arabia and potentially other Islamic states (reasons [5]–[7]).
The father also described difficulties obtaining Bangladeshi citizenship documentation for the child. He said the Bangladeshi embassy refused a passport application and that he was criticised and warned about returning to Bangladesh. The family left Saudi Arabia for the Philippines, where they experienced hostility from the mother’s family and concerns about political tension between Muslim and Christian communities. They then came to Australia (reasons [6]–[7]).
The Tribunal considered country information, a report by Associate Professor Islam about people accused of Zina, and a psychologist’s report about the father’s stress and fear (reasons [8]–[9]). It distinguished the family’s circumstances from information about unmarried mothers or women who had children through adultery. The Tribunal considered that the applicants were a family unit, and found no obvious indicator that their child had been born outside marriage. It considered relocation to Dhaka reasonable, in light of the family’s experience living and working in large urban settings and the country information about attitudes there (reason [10]). It also found that the mother and child were Philippine citizens and that the family could live in the Philippines without Convention persecution (reasons [11], [18]).
The Federal Magistrates Court did not rehear those factual matters. It examined whether the applicants had identified reviewable error. Raphael FM dismissed the application and ordered the applicants to pay $2,000 in costs (orders; reasons [19]–[20]).
The Court’s central distinction was between disagreement with the Tribunal’s conclusions and an error capable of supporting judicial review. The applicants’ submissions challenged the Tribunal’s assessment of mixed marriage, social exclusion, religious attitudes in Bangladesh and the reports before it. Raphael FM characterised the arguments about the applicants’ social circumstances as “no more than a traverse of the Tribunal’s findings as to fact” (reason [14]). The Court said that criticism of the weight given to the reports was also within the Tribunal’s decision-making powers (reason [15]).
That reasoning is important to the judgment’s limited scope. The Court did not decide afresh whether the family would experience hardship or whether the reports should have been given greater weight. It assessed whether the stated criticisms revealed reviewable error. On the reasons provided, the Court concluded that they did not (reasons [14]–[15], [19]).
Relocation to Dhaka was addressed by reference to Randhawa v Minister for Immigration. The judgment quoted Randhawa for the proposition that protection elsewhere in the country may not answer a fear of persecution across the country if, as a practical matter, the area offering protection is not reasonably accessible (reason [16]). Raphael FM then assessed whether the Tribunal had considered the practical realities of this family’s proposed relocation. The Court was satisfied that it had, referring to the Tribunal’s consideration of the family’s past experience in large urban settings and the information about Dhaka (reasons [10], [17]). The Court’s conclusion was not that relocation is automatically reasonable whenever a city is available. Its stated conclusion was that it could find no reviewable error in the Tribunal’s assessment in this case.
The Philippines provided a separate basis considered by the Tribunal. The applicants’ representative conceded that the family would not face persecution in the Convention sense there, although hostility from the wife’s family would continue. The Court treated the Tribunal’s finding that the family could travel to and live in the Philippines as supporting its conclusion that the country could provide effective protection (reason [18]). Taken together, the Court found no ground to review the Tribunal’s decision and dismissed the application (reason [19]).
The judgment does not purport to change the law or establish a new test. Its reasons apply the review approach the Court understood to govern the application before it. In particular, the Court distinguished between contesting the Tribunal’s factual assessment and identifying reviewable error (reasons [14]–[15]). The judgment does not set out a complete account of the statutory review framework or define every kind of error that could be reviewable.
For internal relocation, the Court relied on the passage from Randhawa reproduced at reason [16]. That passage states that protection elsewhere in a country is relevant only if the area in which protection is available is reasonably accessible as a practical matter. Raphael FM’s application of that proposition focused on whether the Tribunal had carefully considered practical realities, including the family’s experience of living and working in urban settings (reason [17]).
The judgment’s treatment of the Philippines is fact-specific. It records the Tribunal’s finding about the mother’s and child’s Philippine citizenship, the possibility of family relocation, and the representative’s concession that Convention persecution would not occur there (reasons [11], [18]). It should not be read as resolving how effective protection would be assessed in a different case, with different facts or evidence.
The judgment supplies no account of later legal developments or subsequent judicial treatment of its own reasoning. It therefore cannot establish from its text whether later courts adopted, limited or distinguished the decision. Its reliable contribution here is the explanation of how Raphael FM applied the cited relocation principle and treated factual and evidentiary disagreements in this particular judicial review.
At reason [14], Raphael FM said that the applicants’ submissions “do not constitute grounds for review under s.39B” because they traversed the Tribunal’s factual findings. In plain English, the Court considered that repeating why the applicants disagreed with the Tribunal did not, by itself, identify an error the Court could review.
At reason [15], the Court described the applicants’ criticism of the Tribunal’s approach to the reports as criticism of the “weight” attached to them. It said this was within the Tribunal’s decision-making powers. The practical distinction is between asserting that evidence deserved a different assessment and identifying a reviewable error in how the Tribunal reached its decision. The judgment addresses the former, not a general rule that every possible complaint about evidence is beyond review.
At reason [16], the Court quoted Randhawa: “if as a practical matter, the part of the country in which protection is available is not reasonably accessible to that person,” protection elsewhere may not resolve the person’s fear regarding the country as a whole. In plain English, an alternative place of safety must be practically accessible, not merely exist in theory.
At reason [17], Raphael FM said the Tribunal had “carefully consider[ed] the practical realities” of relocation to Dhaka and found no reviewable error. This passage links the quoted principle to the Tribunal’s actual assessment. The Court was not deciding that every proposed relocation is workable; it was satisfied with the consideration given in this record.
At reason [18], the Court explained that the Tribunal treated the Philippines as a place where the family could live and where they would not face persecution in the Convention sense. The same paragraph records the concession that hostility from the wife’s family would continue. The Court therefore distinguished that hostility from persecution in the Convention sense as addressed in the proceedings.
The judgment is most directly relevant to judicial review proceedings where an applicant’s grounds largely dispute the Tribunal’s factual conclusions or the weight it assigned to evidence. The Court treated those kinds of arguments as insufficient in themselves to establish reviewable error (reasons [14]–[15]). The judgment does not say that all factual or evidentiary complaints are necessarily unreviewable. It explains how the particular submissions before Raphael FM were characterised.
It is also relevant where a Tribunal relies on internal relocation and the challenge concerns whether the proposed location is practically accessible. The Court cited Randhawa on that point and examined whether the Tribunal had considered the practical realities for the family (reasons [16]–[17]). The facts here included prior experience living and working in large urban settings and country information concerning Dhaka (reason [10]).
A further relevant pattern is where the Tribunal identifies a different country in which a family may live, and considers that country capable of providing effective protection. The Court addressed the Philippines option against the background of the mother’s and child’s citizenship and the concession about Convention persecution (reasons [11], [18]). The judgment’s analysis depends on those particular findings and concession.
The decision should not be taken as resolving claims involving materially different evidence, different barriers to relocation, different country conditions, or a different basis for alleging persecution. Those matters are not decided in the reasons.
The supplied judgment contains no references to later decisions applying, distinguishing, overruling or otherwise treating NADH & Ors v Minister for Immigration. It was delivered on 26 June 2003, and the text provides no subsequent case history. Accordingly, later judicial treatment cannot be established from this source.
The judgment does cite Randhawa v Minister for Immigration and uses the passage on practical accessibility when considering internal relocation (reasons [16]–[17]). It also records that counsel relied on Muin v Refugee Review Tribunal because the court book initially lacked Part B papers. The respondent then filed an affidavit attaching those documents, and counsel conceded that they had been before the Tribunal (reason [4]). The Court did not analyse Muin or rely on it in its stated reasons for dismissing the application.
The judgment’s own reasoning should therefore be described narrowly: it applied the practical-accessibility proposition quoted from Randhawa and rejected the particular arguments as challenges to factual findings or evidentiary weight. The source does not establish how any later court interpreted that reasoning.
Several matters remain outside the judgment’s resolution. First, the reasons do not set out a comprehensive account of the legal standards governing every possible form of judicial review under s 39B. The Court’s discussion is tied to the arguments made and its characterisation of them as disputes about facts and evidentiary weight (reasons [14]–[15]).
Second, the decision does not independently assess whether the applicants would in fact have faced persecution in Bangladesh or whether the social exclusion described by counsel would meet the Convention threshold. The Court treated those submissions as challenges to the Tribunal’s findings, rather than deciding the merits afresh (reasons [12]–[15]).
Third, although Randhawa’s practical-accessibility proposition was quoted, the judgment gives limited detail about the evidence that would be needed in other cases to assess access, safety or the reasonableness of relocation. It records the Tribunal’s reliance on the family’s urban experience and information about Dhaka, then finds no reviewable error in that assessment (reasons [10], [17]).
Fourth, the Philippines analysis proceeded in the setting of a concession that Convention persecution would not occur there, alongside the Tribunal’s findings about citizenship and family relocation (reasons [11], [18]). The judgment does not decide how a contested claim about protection in a third country would be evaluated.
Finally, the judgment does not provide later authority or a subsequent history. Any claim about its status in later case law would require sources beyond this judgment.
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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] FCA 1253; (1994) 52 FCR 437
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
(2) Applicant to pay the respondent's costs assessed in the sum of $2,000.00.
MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS
1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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."
9. 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.
10. 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."
11. 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.
12. 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.
13. 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.
14. 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).
15. 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.
16. Mr Jordan who appeared for the Minister, referred me to Randhawa v Minister for Immigration [1994] FCA 1253; (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."
17. 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.
18. 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).
19. 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.
20. 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
NADH & Ors
Minister for Immigration [2003] FMCA 272
(1994) 52 FCR 437
The application was dismissed. The applicants were ordered to pay the respondent’s costs, assessed at $2,000 (orders; reason [20]).