NAIS v Minister for Immigration & Multicultural & Indigenous Affairs

REASONS FOR JUDGMENT 1 This is an application under s 39B of the Judiciary Act 1903 (Cth) in relation to a decision of the Refugee Review Tribunal ("the RRT") made on 20 December 2002 by which the RRT affirmed the decision of the Minister's delegate not to grant protection visas to the applicants. 2 The application to the RRT for review was made on 5 June 1997. The RRT held a hearing on 6 May 1998 and a further hearing on 19 December 2001. The decision of the RRT was handed down on 14 January 2003. The application was therefore "pending" in the RRT for a period in excess of five years. This seems to be an extraordinary delay. 3 The applicants are citizens of Bangladesh and arrived in Australia on 3 August 1996. The applicants designated NAIS and NAIT are husband and wife. The applicant designated NAIU is their daughter. The husband is Muslim and his wife is Catholic. When they were married the wife refused to convert to Islam. The daughter has been baptised as a Catholic. The husband and the wife claimed that they have a well-founded fear of persecution arising out of the fact that they entered into a "mixed marriage". The daughter's claim is that she is either a member of the family unit, and entitled to a protection visa on that account, or that she has a well-founded fear of persecution in her own right arising from the fact that she is Catholic, but is the daughter of a Muslim father. 4 The husband and the wife were married in August 1984. They claimed that because of certain incidents which are further described hereunder, they left Bangladesh in December 1984 with the husband travelling to Saudi Arabia and the wife travelling to Kuwait for work. They returned to Bangladesh in December 1986. From December 1988 they lived and worked in the Australian Embassy in Bangladesh. The daughter was born on 4 December 1989. On 12 December 1989 the applicants left to work with the Australian Embassy in Laos and remained there until January 1996 when they returned to Bangladesh. After what they claimed were further instances of harassment, the applicants left Bangladesh and arrived in Australia in August 1996. 5 The husband and the wife claimed that on a number of occasions when they were living in Bangladesh they were harassed and attacked because they were involved in a mixed religion marriage. Those claims were ultimately rejected by the RRT. In summary the claims were: (a) the husband claimed that after his marriage in 1984 his family attempted to kill him, and his wife's family tried to physically harm him. During the first hearing in May 1998, the RRT pressed the husband on this claim and he eventually stated that some villagers had threatened him and then strung a necklace of old shoes around his neck, flogged him and then dragged him around the village. The wife supported the husband's claim that the villagers put a necklace of shoes around his neck and beat him. Subsequently, both the husband and the wife recanted this claim and admitted that what they had told the RRT in regard to the necklace of shoes and the flogging in 1984 was a fabrication; (b) the husband said that in June 1989 when he was working with the Australian Embassy in Bangladesh, he was asked to go to the bank and was severely beaten and was bruised and bloodied when he was attacked on his approach to the bank. The RRT did not believe this claim; (c) the husband claimed that in February 1996 after they returned from Laos "a man was stabbed outside the gate of their house" and that he was "very scared because I believe they may have been trying to stab me". The RRT accepted that there was a person murdered in the vicinity of the family home in Dhaka and that this would have created concerns regarding the applicants' safety. However, the RRT did not accept that this was in any way linked to the marriage between the husband and the wife; (d) the husband claimed that at some point a man came and banged on the door and tried to stab him. He later conceded that this incident had not occurred and that he had fabricated this claim to strengthen his case; (e) both the husband and the wife claimed that in April 1996 their daughter, who was then six, was grabbed and a knife was put to her throat and the husband and the wife were threatened. The RRT found that this incident was a fabrication; (f) the wife claimed that in 1996 her husband's brother "kidnapped" the daughter. He took the daughter from school to his home where he showed her Muslim books and tried to teach her about Islam. The RRT accepted that the brother's behaviour was inappropriate but the conduct was not persecutory in character. Her uncle did not intend to cause harm to the daughter or her parents, nor was any harm occasioned by his actions; and (g) the wife claimed then that at some time after January 1996 she had been attacked on the way to church. She was pregnant at the time and this led to a miscarriage. The RRT accepted that these events occurred, but did not accept that the incident was a consequence of her marriage to her husband. 6 Ultimately, the RRT made the following findings concerning the applicants' claims: "1. The Applicants are in a mixed religion marriage, the husband being Muslim and the wife and daughter being Christian. 2. Neither the wife's nor the husband's family accepted the marriage and they began to live apart from their families in 1984. 3. Both husband and wife have shown themselves to be resourceful and to find employment both overseas and in Bangladesh and be independent of family support. 4. They have been married since 1984. 5. Mixed religion marriages are recognised by the State of Bangladesh. 6. The Applicant, wife, was victim of an act of violence and she suffered a miscarriage following that incident. 7. A murder of an unrelated person occurred in the vicinity of the family home in Dhaka." 7 The RRT then made the following further findings: