SZEHN v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCA 1389 (28 September 2005)

Last Updated: 29 September 2005

FEDERAL COURT OF AUSTRALIA

SZEHN v Minister for Immigration & Multicultural &
Indigenous Affairs [2005] FCA 1389

MIGRATION – protection visa – appeal from Federal Magistrates Court of Australia which dismissed appellant’s application for review of decision of Refugee Review Tribunal – whether Tribunal failed to have regard to a relevant consideration – Tribunal had invited appellant to comment on certain matters pursuant to s 424A of Migration Act 1958 (Cth) – letter conveyed member’s concern as to whether the appellant, a Bangladeshi Muslim, had married a Hindu woman as he claimed, and whether mixed marriages in Bangladesh led to persecution as he claimed – appellant responded by supplying, relevantly, five letters, three from university academics, one from general secretary of a Bangladeshi association in Australia, and one from the editor of a Bengali newspaper in Australia – whether Tribunal had failed to have regard to the letters – failure to mention them or their contents specifically.

PRACTICE AND PROCEDURE – appeal from Federal Magistrates Court of Australia which dismissed appellant’s application for review of decision of Refugee Review Tribunal – application for leave to raise new ground of appeal not reflected in grounds on which application had been made to Federal Magistrates Court for review of Tribunal decision – principles governing application for leave to raise new ground of appeal, where no associated application for leave to lead further evidence on the appeal.




Migration Act 1958 (Cth), s 424A






H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43 cited
VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 cited
Gomez v Minister for Immigration & Multicultural Affairs (2002) 190 ALR 543 cited
Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 cited
Iyer v Minister for Immigration & Multicultural Affairs (2001) 192 ALR 71 cited
VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158 cited
Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 cited
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 applied
Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 followed
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 followed

Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 followed
Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 followed
NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 followed
Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 cited
Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 cited
Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 cited
MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 cited
Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 cited




























SZEHN v MINISTER FOR IMMIGRATION & MULTICULTURAL
& INDIGENOUS AFFAIRS & ANOR

NSD 557 OF 2005

LINDGREN J
28 SEPTEMBER 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 557 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEHN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT
JUDGE:	LINDGREN J
DATE OF ORDER:	28 SEPTEMBER 2005
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The appellant have leave to file amended notice of appeal.

2. The appeal be dismissed

3. The appellant pay the respondent’s costs.









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	NSD 557 OF 2005

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA

BETWEEN:	SZEHN APPELLANT
AND:	MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS FIRST RESPONDENT REFUGEE REVIEW TRIBUNAL SECOND RESPONDENT

JUDGE:	LINDGREN J
DATE:	28 SEPTEMBER 2005
PLACE:	SYDNEY

REASONS FOR JUDGMENT

INTRODUCTION

1 The appellant appeals from a judgment of the Federal Magistrates Court of Australia (‘FMCA’) given on 22 March 2005. The FMCA dismissed an application for review of a decision of the Refugee Review Tribunal (‘the Tribunal’) made on 14 July 2004 and handed down on 4 August 2004, by which the Tribunal affirmed a decision of a delegate of the respondent Minister (respectively, ‘the Delegate’ and ‘the Minister’) not to grant a protection visa to the appellant.

BACKGROUND FACTS

2 The appellant is a citizen of Bangladesh. He arrived in Australia on 9 March 1996. On 1 April 1996 he applied for a Protection Visa (866). On 13 May 1997 a delegate of the Minister refused to grant him the visa.

3 The appellant applied for relief by way of constitutional writs to the High Court of Australia, and on 3 May 2001, that Court made orders remitting the matter to the Delegate for a decision to be made in accordance with law.

4 On 1 October 2002 the Delegate refused to grant the visa to the appellant, and on 14 October 2002 the appellant lodged an application for review of the Delegate’s decision by the Tribunal.

5 The Tribunal conducted a hearing on 28 January 2004. On 18 March 2004, the Tribunal wrote to the appellant inviting him to comment on certain matters.

6 On 16 June 2004, the appellant, through his immigration consultants, replied at length and forwarded with his reply certain documents.

7 The Tribunal’s letter and the appellant’s reply have assumed importance in the present appeal. The appellant complains that the Tribunal failed to have regard to five ‘references’ which were enclosed with his reply.

LEAVE TO FILE AMENDED NOTICE OF APPEAL

8 The appellant filed his notice of appeal on 11 April 2005 setting out four grounds of appeal. The hearing of the appeal was fixed for Friday 8 July 2005. The appellant did not comply with a direction to file and serve written submissions five days prior to that date. The Minister filed and served written submissions on 6 July 2005. In the absence of written submissions from the appellant, the Minister’s submissions could address only the grounds stated in the notice of appeal. However, the appellant came to be represented on the hearing before me by counsel who prepared an amended notice of appeal and submissions in support. I wish to express my appreciation of Ms Avenell’s assistance to the Court in both her written and oral submissions.

9 Counsel for the Minister opposed the filing of the amended notice of appeal. Against the possibility that leave to file it should be granted, counsel for the Minister prepared supplementary written submissions in support of a refusal of leave to file the amended notice of appeal and addressing the grounds of appeal advanced in it.

10 Those proposed grounds were as follows:

‘Ground 1: The Refugee Review Tribunal ("RRT") failed to have regard to relevant material, being references supporting the appellant’s claim to have married a Hindu woman and as to the consequences of such a marriage in Bangladesh ("the references").
Ground 2: The Tribunal denied the appellant procedural fairness in relation to the references.
Ground 3: The Tribunal failed to exercise jurisdiction in making its decision on the appellant’s claims.’

Ground 2 was not pressed. Ground 3 depends on Ground 1. Accordingly, in substance Ground 1 is the only ground of appeal. Ground 1 is narrower than the grounds which had been set out in the original notice of appeal. Counsel for the appellant did not make any submissions in support of those grounds.

11 The proposed ground of appeal was not raised as a ground of review in the FMCA. The appellant was not represented before the FMCA. The proposed ground of appeal turns on the Tribunal’s alleged failure to take into account a relevant consideration, namely, the content of the ‘references supporting the appellant’s claim to have married a Hindu woman and as to the consequences of such a marriage in Bangladesh’. There is no application to adduce further evidence on the appeal in support of this ground, and there is no suggestion of prejudice to the Minister in her having to deal with it. On the other hand, the Minister points out that there is no explanation of why the appellant was not legally represented before the FMCA, but was represented before this Court only some 31/2 months later. The Minister also refers to the fact that the appellant has been in Australia for more than nine years (I do not see the relevance of this fact to the question whether leave should be granted). The appellant refers to the facts that he has no right of appeal beyond the present appeal, and that the decision of the FMCA, if erroneous, has serious consequences for him.

12 In H v Minister for Immigration & Multicultural Affairs (2000) 63 ALD 43 (‘H v MIMA’) the Full Court said (at [6]), in an appeal from a decision of a judge of the Court, that where it is not sought to lead evidence on the appeal, the question is whether it is ‘expedient in the interests of justice’ to allow the additional ground to be raised. This test was applied by another Full Court in VAAC v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 74; (2003) 129 FCR 168 (‘VAAC’) at [21]–[38]. In VAAC, the Full Court said that the interests of justice required the Court to consider:

•	the prospects of success of the new argument;
•	any explanation for failure to raise the new ground below;
•	any prejudice to the respondent if the appellant is allowed to raise the new ground;
•	seriousness of the consequences to the appellant if leave to raise the new ground is refused; and
•	the integrity of the appellate process.

13 In Gomez v Minister for Immigration & Multicultural Affairs (2002) 190 ALR 543, the Full Court referred to considerations of the present question in H v MIMA, Iyer v Minister for Immigration & Multicultural Affairs [2000] FCA 1788 (FC) at [22]–[24] and Iyer v Minister for Immigration & Multicultural Affairs (2001) 192 ALR 71 at [61]–[62] per Gyles J, and pointed out that cases in which the discretion has been exercised in a certain way should not be treated as laying down an inflexible rule. In the most recent Full Court consideration of the present issue, VUAX v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 158, the Court, in a brief passage, referred to the considerations of explanation for the failure to raise the ground below and the merit of the proposed ground.

14 It seems that in all the cases, at least some consideration has been given to the merits of the proposed new ground of appeal. The parties were in agreement that I should proceed to hear argument on that ground, reserving the question of whether to grant leave. I did so, and soon became persuaded that the new ground was arguable. Generally speaking, it is desirable that the decision whether to grant leave be made without full argument as on the appeal itself taking place. In the present case, however, the full argument as on the appeal in fact proceeded to conclusion, without any announcement by me that I was persuaded to grant leave.

15 As appears below, the ground of appeal is not without merit. It was not advanced in the FMCA because the appellant was not legally represented there. There is no prejudice to the Minister in the appellant’s being granted leave to rely on the ground. There would be serious consequences for the appellant if leave were refused in circumstances in which the ground would have succeeded. While the integrity of the appellate process is important, at least the appeal can be heard on the same occasion as the application for leave.

16 The appellant should have leave to file the amended notice of appeal.

THE APPELLANT’S CLAIMS BEFORE THE TRIBUNAL

17 The Tribunal accepted that the appellant is a national of Bangladesh. He claimed to be a Bengali Muslim and to have married a Hindu woman. He claimed to have suffered persecution by Muslim fundamentalists in Bangladesh both on account of that marriage, and prior to it because of liberal views which he had expressed. Since the amended notice of appeal concerns only the claimed marriage, I will not outline the other claims made. I note, however, that the appellant claimed to be following in the footsteps of his father who was a progressive, unorthodox and ‘cultural-minded’ person, headmaster of the local school, supervisor of cultural and theatrical activities, and a person who was opposed to traditional religious rules and regulations, and inequality and injustice practised in the name of Islam. The appellant’s father was murdered because of his unorthodox beliefs. The appellant himself claimed to have 14 years of education and to have been assistant director of a film making business.

18 The appellant’s claims in relation to the marriage proceeded along the following lines. The wedding took place in the wife’s family home in Rajbar, Bangladesh, without any mullah or Hindu priest. His relatives performed an Islamic ceremony and the wife’s relatives performed a Hindu marriage ceremony. Neither family had any objection to the marriage. The Tribunal member asked the appellant how he and his wife went about registering their marriage, and he said that they married each other and did not worry about religion. The member asked the appellant if he ‘planned to marry in a civil marriage’, and he replied that ‘the local authorities would not have accepted this’. The member put to the appellant that Bangladeshi law provides for civil marriage and that people can go to court to have a civil marriage performed. The appellant replied that ‘he had had problems with the fundamentalists by then’ and that ‘the court would not have registered the marriage’.

19 The appellant claimed that he and his wife had been lashed. The member asked when and where this occurred. The appellant said that the marriage took place on 26 March 1996 and that he was threatened and beaten on 28 March 1996 (two days later). He said that mullahs came and told them that they had to come to the front of the mosque ‘to be told the decision in relation to what would happen to them’. The appellant said that when they went to the mosque, the Imam told them that they were to be lashed. Asked when the lashing took place, the appellant said that it would have been on 31 December 1995. When the member pointed out the appellant had previously said that the marriage took place on 26 March 1996, the appellant’s response was that that date was wrong and that the correct date of the marriage was 16 December 1995. The appellant said that ‘they pointed gun at him and beat them upon 31 December’, and that ‘1 January [1996] was the day they were lashed’ (16 days after the marriage, not two as he had previously stated). The appellant said that after the marriage he and his wife remained in his wife’s village for one night, then went to different places and stayed with different people in same district because they were threatened in his wife’s village. (At this point the suggestion seems to be that he and his wife came from different locations to the mosque, after which the lashing occurred.)

20 The member asked the appellant how he knew that they had to appear at the mosque, and he said that ‘they’ had told him that he must appear at the midday prayers ‘the following day’ at the mosque in Ghudhibari. Asked why he and his wife went to the mosque, he said that they did so because they had been threatened with a gun. (The suggestion seems to be that the threat was made to them together.) Asked why he and his wife did not leave the area and go to Dhaka, for example, he said that they did not do so because ‘the organisation’ exists ‘all over’ and because people were watching him, and because transport was not good.

21 He said that at the mosque, he was given 101 lashes, and that, before the lashing finished, people started punching and kicking him and he passed out. Asked what part of his body was affected by the lashing, he said that he was lashed everywhere on his body. Asked if the lashing had broken the skin, he said that he was wearing a cardigan at the time.

22 The appellant said that he and his wife were treated in hospital where they remained for three or four days, but not more than a week. Asked if he had scarring, the appellant said that he had scars from other attacks but not from the lashing.

23 After being released from hospital, the appellant and his wife went to his wife’s village where they stayed for two or three days. The appellant said that he received a letter warning him to leave the country, after which he went to Dhaka while his wife remained at her father’s place. The appellant said that he stayed with a cousin at the university in Dhaka for five or six days, then came to Australia.

24 The member put to the appellant the sequence of the events of which he had testified, namely, that he was lashed within a few days of being married (the appellant’s second version was that he was lashed 16 days after being married), that he received the letter shortly thereafter, went to Dhaka within a few days of receiving the letter, and left for Australia within a few days after that. However, the appellant then changed his evidence, saying that he was in Dhaka for about five or six weeks.

25 Asked by the member how long it was after he came out of hospital that he received the letter, the appellant said that it was a matter of a few days. The member then asked the appellant why, in that case, the letter was dated ‘4 and 6 February 1996’, when on the appellant’s evidence he would have received it in [early] January 1996. (The letter, which was in evidence, bore two signatures, one over the date 4 February 1996 and the other over the date 6 February 1996.) The appellant said that he could not remember, and claimed that if he was telling lies he would have learned everything by heart.

26 The appellant said that his wife had been living in India since 2001, and that she went there to live because of the lack of security and religious persecution in Bangladesh.

27 The appellant said that he and his wife have not been in touch with each other for a year and he did not know if their marriage had broken down.

THE TRIBUNAL’S FINDINGS AND REASONING

28 After two prefatory paragraphs, the Tribunal member stated that ‘significant aspects of [the appellant’s] evidence concerning his activities in Bangladesh were internally inconsistent, inconsistent with the independent evidence, implausible and confused’.

29 The member said that she had a number of problems with the appellant’s claim that he was persecuted by reason of his marriage to a Hindu woman, and listed six matters of implausibility. The first related to the appellant’s evidence at the hearing that the marriage was not registered because local authorities and the Court would not have accepted it. The member noted that independent evidence showed that a marriage registrar or a magistrate in Bangladesh would not hesitate to administer a marriage between a Muslim and a Hindu woman, provided they were of legal age to marry, and that there would have been no legal impediment to his marriage to a Hindu woman being registered, if the appellant had wished to have it registered. The member said:

‘I do not find credible the applicant’s assertion that he did not believe the local authorities and the court would accept the marriage.’

30 Secondly, the member did not accept the claim of lashing or flogging because of the marriage to a Hindu woman, on the basis that there was no independent evidence suggesting that parties to a mixed religious marriage in Bangladesh were liable to suffer that punishment, and the evidence was that if the two families accept the marriage, the community will also. Accordingly, the member found it implausible that the appellant would have had such problems in the village that he and his wife would have been flogged and expelled.

31 Thirdly, the member thought it implausible that if the appellant had anticipated problems, he would have chosen to marry in a village area, rather than in a city.

32 Fourthly, the member thought it implausible that the appellant and his wife, if they had been threatened with a gun, would not have taken steps to remove themselves from danger.

33 Fifthly, there was the ‘confused’ evidence of the appellant as to when he received the letter warning him to leave the country.

34 Sixthly, there was inconsistent evidence of the appellant, as to how long he stayed in Dhaka before leaving for Australia – a few days or five or six weeks.

35 The member then concluded:

‘Overall, on the basis of the photographs submitted by the applicant, I am prepared to accept that the applicant was engaged to a Hindu woman. However, I do not accept that they were married. In my view, if they had married, they would have registered their marriage, as provided for under Bangladeshi law. Furthermore, I reject the applicant’s claim that he was beaten, threatened, lashed, or expelled from his village. I also reject the claim made in the applicant’s August 2003 declaration that fundamentalists came to his house, threatened him at gunpoint and tried to stab him and his wife. I am of the view that the letter provided by the applicant to support his claim that he was expelled from his village was contrived. I am of the view that the applicant fabricated his claim that he was persecuted because of his marriage in order to enhance his claims to refugee status.

The applicant’s evidence suggested that the relationship with the woman I accept was his fiancée has broken down. His evidence indicated that the woman knows how to contact him but has not done so for some time. I accept that the applicant’s fiancée is now in India with her family. There is insufficient evidence before me for me to make a finding that she went to India because she was being harassed for reasons of her religion. However, as I have concluded that her relationship with the applicant has broken down, it follows that the chance that the applicant would marry her if he returned to Bangladesh is remote. That said, even if the application did marry her, given that both families accept the marriage and given the independent evidence suggesting that parties to a mixed marriage are not persecuted in Bangladesh, I am not satisfied that this would give rise to persecution for a Convention reason.’ (my emphasis)

THE TRIBUNAL’S LETTER AND THE APPELLANT’S RESPONSE

36 In order to understand the grounds raised in the amended notice of appeal, one must refer to the Tribunal’s letter to the appellant and his reply, referred to earlier.

37 The Tribunal wrote to the appellant on 18 March 2004. A copy was sent to his firm of ‘professional immigration consultants’, the principal of which was a ‘solicitor and barrister’.

38 The letter stated that the Tribunal had information which would, subject to any comments the appellant might make, be the reason or part of the reason for deciding that the appellant was not entitled to a protection visa: cf s 424A of the Migration Act 1958 (Cth) (‘the Act’).

39 The letter stated that the Tribunal member had difficulty accepting that the appellant did marry a Hindu woman as he claimed.

40 The letter then stated that ‘in addition’, the Department of Foreign Affairs and Trade (‘DFAT’) had commented on the subject of mixed marriages in Bangladesh. The letter quoted at length advice provided in a report in 1999 by DFAT and, also in 1999, by a senior lecturer in law at Macquarie University. The general effect of the advice was that in Bangladesh, marriages are registered locally, not centrally; that marriages between people from different religions are ‘specifically recognised’ in Bangladeshi law under the Special Marriage Act No 3 of 1872 [sic] and are readily accepted in Bangladesh; that unless the non-Muslim converts to Islam, the marriage will not be recognised under Shariah Law; that mixed marriages are not very common, being more common in the cities than in the countryside; that parties to mixed marriages sometimes encounter non-violent harassment from their families and peers, more commonly from uneducated and illiterate people; that the Government has no policy of involving itself in, or condoning, such harassment; that mixed marriages are legal and the Government has no official position on them and does not seek to discourage or prevent them; that a marriage celebrant authorised by law or by the State to celebrate marriage may celebrate civil marriages; that a marriage celebrant may be a Government official; and that the marriage registrar or magistrate would not hesitate to perform a marriage between a Muslim man and a Hindu woman.

41 The Tribunal’s letter informed the appellant that the information set out in it affected the credibility of his claim that he had been persecuted and would be persecuted for having married a Hindu women.

42 On 5 April, 12 May and 13 May 2004, the appellant’s professional immigration consultants wrote to the Tribunal and obtained an extension of time in which to respond. On 16 June 2004 they forwarded their client’s submission which was quite lengthy.

43 Annexure 2 to the appellant’s submission contained, relevantly, five letters: three from university academics in Australia, one from the general secretary of a Bangladeshi association in Australia, and one from the editor of a Bengali newspaper published in Australia. It is these ‘references’ to which the proposed new ground of appeal refers.

44 The effect of the parts of the five letters relating to mixed marriages in Bangladesh in general, or to the question of the appellant’s claimed marriage in particular, may be summarised as follows:

Letter 1: Dr Abdur Rzazzaque, a Lecturer in Law at the University of Western Sydney

45 Dr Rzazzaque states that he is writing the letter ‘in support of’ the appellant. As well as outlining the recent political situation in Bangladesh, Dr Rzazzaque deals with the issue of the appellant’s alleged marriage to a Hindu woman as follows:

‘He [the appellant] also committed the cardinal sin of getting married to a Hindu young woman without requiring her to be converted into Islam. Such marriages are not recognised in Islam. This fact alone is sufficient for [the appellant] to attract a fatwa from the fundamentalists to be killed.

Given the facts that [the appellant] is a son of a freedom fighter, an exponent of progressive ideas through his journalistic writings, a cultural activist portraying injustices done in the name of religion, and a rebel who demonstrated the audacity to marry a Hindu woman without converting her to Islam – it is almost certain that he will be subjected to persecution of the worst type if he was required to go back to Bangladesh. It may amount to give him a death sentence.’ (my emphasis)

Letter 2: Dr AKM Masudul Haque, a Lecturer in Law at the University of Western Sydney

46 Dr Haque begins his letter by saying, ‘My opinion is sought as a former practising lawyer in Bangladesh and a former President of the Bangladesh Association of NSW Inc, regarding the marriage of a Muslim with a Hindu woman and possible legal and social implications’. Dr Haque then goes on to say:

‘According to "Shariah" (Muslim Law) a marriage between a Muslim and a Hindu is void and the children born out of such union are considered to be illegitimate. Such marriage is not only void, but is considered to be a grave sin, punishable by death. Though the state does not implement such a strict punishment, none the less the orthodox priests can do so without being prosecuted by the state. The persons are socially ostracized and friends and relatives of the concerned couple are also punished by the local priest for keeping contact with the couple. ... His situation is also of grave concern because of his marriage with a Hindu woman which by itself is sufficient to face persecution in Bangladesh.’ (my emphasis)

Letter 3: Dr Tushar Kanti Das, Lecturer in Law (Temporary), at the University of Western Sydney

47 Dr Das begins his letter by explaining the context in which he writes it:

‘I am giving this legal opinion based on my experiences as an Advocate in the High Court Division of the Supreme Court of Bangladesh and also as a Lecturer in law in the University of Dhaka and in the University of Chittagong, Bangladesh. My comments about the social stand about [sic – social standing of] a marriage between a Muslim and a Hindu are based on my empirical observation of the society as well as on my works with human rights NGOs.’

Dr Das then goes on to state:

‘The legal status of a marriage between a Muslim and a Hindu is void under the Muslim law currently in operation in Bangladesh and the children out of such a void marriage are also illegitimate.’ (my emphasis)

After comments about the recent political situation in Bangladesh, Dr Das then states:

‘In this background of the society, in case of a marriage between a Muslim and a Hindu in Bangladesh, it has become an unavoidable option for the Hindu to convert into Islam, not only to validate the marriage thereby but also to avoid heinous attack by the Islamic fundamentalists in the society. If the spouse of a Muslim is not converted to Islam, that is, they observe their respective religion, the couple is not only ostracized but has to live under constant threat on their lives and property by the Muslim fundamentalists around the society.’

At the foot of his letter, Dr Das includes the following disclaimer:

‘Disclaimer: The letter only clarifies the legal status of a marriage between a Muslim and a Hindu in Bangladesh and how the society generally reacts to such a marriage. This letter does not vindicate of corroborate any particular individual’s claim or allegation regarding his/her marriage. Further, this opinion is not given in my official capacity as an associate lecturer in the University of Western Sydney.’ (my emphasis)

Letter 4: Mr Pranesh Das, General Secretary of the Bangladesh Puja Association Australia Inc

48 Mr Das gives an account of the recent history of Bangladesh, and in relation to the appellant’s alleged marriage states:

‘Quite naturally, [the appellant] was targeted by those evil forces as he holds progressive views, and to make it worse, had married a Hindu woman. According to the fundamentalists, he had committed one of the executable sins. Like hundreds of thousands of other Bangladeshis, he and his wife had no other option but to flee from Bangladesh merely to save their lives.’

Later in the letter, Mr Das states:

‘Due to his marriage with a Hindu woman and his liberal and progressive views, I have no doubt, [the appellant] will be inevitably risking his life if he goes back to Bangladesh.’

Letter 5: Mr P S Chunnu, Editor, The Sonar Bangla

49 Mr Chunnu states:

‘I know [the appellant] son of [name omitted] an assassinated freedom fighter and renowned activist of his locality, since 1990. I know that [the appellant] involved with progressive journalism and cultural activities for a considerable period of time. [The appellant] is a citizen of Bangladesh and force to leave his country to save his life.

I also know that [the appellant] being a Muslim married to a Hindu girl, who didn’t converted herself to Muslim religion. Marrying a non Muslim is not unusual in Bangladesh but failing to convert the respective spouse to Muslim religion attracts huge criticism and personal risk from various social groups some of them are extremely fanatic and hostile to progressive journalist and cultural activist like [the appellant].’ (my emphasis)

CONSIDERATION

50 As noted earlier, the proposed ground of appeal was not raised before the learned Federal Magistrate.

51 Section 474 of the Act does not prevent judicial review of the Tribunal’s decisions where there is jurisdictional error: Plaintiff S157 of 2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 (‘Plaintiff S157’).

52 The ‘failure to take into account a relevant consideration’ ground of judicial review was explained in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, in particular, at 39-46 by Mason J. His Honour made clear (at 39-41) that:

‘(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision ...
(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion ...
(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law. A factor might be so insignificant that the failure to take it into account could not have materially affected the decision ...
(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and a decision made within those boundaries cannot be impugned.’ (emphasis in original)

53 Part 7 (ss 410–473) of the Act provides for the review of protection visa decisions. Section 414 requires the Tribunal to ‘review’ ‘RRT-reviewable decisions’, which are defined in s 411 to include decisions to refuse to grant a protection visa, where, as here, there was a valid application for review of such a decision. Subsection 415(1) empowers the Tribunal to exercise all the powers and discretions that were conferred on the original decision-maker. Subsection 415(2) authorises the Tribunal to affirm the decision, vary it, remit it for reconsideration, or set it aside and substitute a new decision. If the Tribunal were to affirm the decision without ‘reviewing’ it, the decision to affirm it would be vitiated by jurisdictional error. Section 36, read with s 415(1), provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Tribunal is satisfied Australia has protection obligations under the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as ‘amended’ by the Protocol relating to the Status of Refugees done at New York on 31 January 1967 (‘the Convention’).

54 Section 36 invokes the definition of ‘refugee’ in article 1A of the Convention: as any person who,

‘owing to a well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion, is outside the country of his nationality or of habitual residence, if stateless and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country.’

55 The Tribunal was bound to review the appellant’s claim that he married a Hindu woman who did not convert to Islam, and, on that account, had a well-founded fear of persecution if he were to return to Bangladesh.

56 The Tribunal did have regard to that claim.

57 Counsel for the Minister points out that the Tribunal referred to its letter of 18 March 2004 and the appellant’s reply on 16 June 2004. In relation to the latter, the Tribunal recorded in its reasons that it had ‘received a package of materials from the [appellant’s adviser]’ which ‘included various documents concerning the political and social situation in Bangladesh’. The Minister emphasises that the member then said: ‘I have considered the material provided by the applicant and other material from a range of sources’. The member did not otherwise refer specifically to any of the five letters mentioned. She did, however, set out the passages from the 1999 DFAT report and from the advice provided in 1999 by the lecturer-in-law at Macquarie University, both of which had been conveyed to the appellant in the Tribunal’s letter of 18 March 2004.

58 It is well established that the Tribunal is not obliged to refer in its reasons to every item of evidence that was before it: Muralidharan v Minister for Immigration and Ethnic Affairs (1996) 62 FCR 402 at 414; Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 at 593; Paul v Minister for Immigration & Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]; Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 75 ALD 630 (‘Applicant WAEE’) at [46]; NAHI v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 10 at [14]. It follows that the omission to refer to a piece of evidence does not necessarily require a conclusion that it has been overlooked: Steed v Minister for Immigration and Ethnic Affairs (1981) 37 ALR 620 at 621 per Fox J; Karras v Minister for Immigration & Multicultural Affairs (1998) 56 ALD 167 at 173.

59 The member’s statement that she had ‘considered the material provided by the applicant and other material from a range of sources’ is not conclusive on the question whether she had regard to the five ‘references’, but it is not to be ignored either. Was the member required in all the circumstances to say more in relation to those documents?

60 The difficulty which I have with the proposed ground of appeal is that the Tribunal member, for reasons which she gave, did not accept the appellant’s testimony that the marriage had occurred at all (or, in view of the apparent breakdown in the relationship, was likely to occur in the future). It is clear that the member’s characterisation of the appellant as not a ‘credible or reliable’ witness, applied to his testimony about his alleged marriage.

61 The Tribunal said that if the appellant and the Hindu woman had married, ‘they would have registered their marriage as provided for under Bangladeshi law’. The five references supplied to the Tribunal by the appellant are not to the effect that the marriage would not have been registrable under Bangladeshi law, but are to the effect that the marriage would not have been recognised in Shariah law. The references may therefore be thought to suggest a reason why a Muslim man might choose not to register his marriage to a non-Muslim woman who does not convert. This, however, was not the reason given by the appellant, who said specifically that he had not registered his marriage because the local authorities and the court would not have accepted it.

62 In its letter to the appellant dated 18 March 2004, the Tribunal had referred, not only to recognition of mixed marriages in Bangladeshi civil law, but also to non-recognition of them under Shariah law unless the non-Muslim converts to Islam.

63 In sum, while the references provided evidence that mixed marriages, where the non-Muslim does not convert, are not recognised ‘in Islam’, are void under Muslim or Shariah law, and are likely to result in persecution of the Muslim party by Islamic fundamentalists, not one of them challenges the registrability of such a marriage under Bangladeshi civil law by the relevant officials of the State. Once the Tribunal found:

•	that, if there had been a marriage (as distinct from an engagement) as alleged, the appellant would have registered it;
•	that there would have been no impediment to registration of it;
•	that the only reason the appellant gave for not having registered it was that the local authorities and the court would not have accepted it;
•	that the appellant was not to be believed when he said he did not believe that the local authorities and the court would accept his marriage; and
•	that the relationship between the appellant and the Hindu woman had apparently broken down so that a marriage was now unlikely to occur in the future,

the descriptions of the general position in Bangladesh touching mixed marriages was rendered irrelevant. In those circumstances, it was, in my opinion, a sufficient acknowledgment of having taken into account the five ‘references’ for the Tribunal member simply to say that she had considered the material provided to it by the appellant: see Applicant WAEE at [47].

64 The question whether the Tribunal was required to go further than it did, must be assessed in the light of the purpose of the Tribunal’s letter to the appellant dated 18 March 2004.

65 Consistently with s 424A of the Act, that letter invited him to comment on the ‘information’ set out in the letter. The ‘information’ was independent country information relating to two subjects pertinent to the appellant’s claims: the increase in the activities of Islamic fundamentalist groups in Bangladesh, and mixed marriages in Bangladesh. The letter prefaced the setting out of the independent country information of the first class with a statement that the member had difficulty with the credibility of significant aspects of the appellant’s evidence. The letter then prefaced the setting out of the independent country information relating to mixed marriages with the statement that the member had difficulty accepting that the appellant had married the Hindu woman.

66 After the information of both kinds had been set out, the letter stated:

‘This information is relevant because it effects [sic] the credibility of your claims that you are at risk of persecution by Islamic fundamentalists, as well as the credibility of your claim that you married a Hindu woman, that you were persecuted in the past and for this reason and that you will be persecuted for this reason if you return to Bangladesh.

You are invited to comment on this information.’

The Tribunal was inviting the appellant to comment on the independent country information.

67 The appellant’s submissions in reply stated:

‘Part C: Evidence based on references from reputed Bangladeshi born academics, lawyers, journalists who are aware about Islamic fundamentalism, problems of mixed marriage in Bangladesh and who are also very much aware about my possible persecution in Bangladesh. (Annexure 2)’

This heading was followed by quoted passages from letters in Annexure 2, which included the five ‘references’. After the last quoted passage, the appellant stated in his submission:

‘The above mentioned references made by different personalities who represent Bangladesh clearly demonstrate the activities of Islamic fundamentalists groups and legal complexity and social discrimination arising through mixed marriage in Bangladesh. These references also demonstrate my personal claims for refugee status. I strongly believe that these references will help to overcome the difficulty with the credibility of significant aspects of my evidence in relation to my claim raised by the honourable tribunal member.’

68 The Tribunal had invited the appellant, not to provide further evidence that the marriage had in fact occurred, but to comment on the ‘information’ set out in the letter.

69 The Tribunal correctly described the five letters as documents concerning the ‘political and social situation in Bangladesh’. The member probably put to one side, as she was entitled to do, the hearsay statements in them about the appellant’s marriage simply as something uninvited and to be ignored. Clearly, if there was to be further evidence touching the fact of the marriage, the member would have wished to question the witness as she had done the appellant himself. Whatever the position may be in relation to the presentation of other uninvited material to the Tribunal, I do not think that Tribunal was obliged to reconvene for the purpose of exploring with the letter writers the significance and basis of their references to the appellant’s marriage, particularly in view of her conclusion that the appellant himself was not credible or reliable on that matter.

70 I accept the Minister’s submission that on a fair reading of them, none of the references provide direct evidence that a marriage ceremony occurred. The appellant’s claim was that apparently only the members of the two families were present at the ceremony, that they performed the ceremony in the Hindu woman’s family’s home in her village; and that the appellant and his wife spent one night in his wife’s village, spent a further two or three days in her village after the lashing, and subsequently went their separate ways. According to the appellant, then, there was virtually no time in which he and his wife lived publicly as a married couple. Inevitably, when the referees referred to the appellant’s having married a Hindu woman, they were referring to what they had been told, either:

• by the appellant in association with his request for their ‘references’, or
• earlier by him or by someone else.

I include the fifth referee, Mr Chunnu, who said he had known the appellant since 1990, and said ‘I also know that [the appellant] being a Muslim married to a Hindu girl who didn’t converted [sic] herself to Muslim religion’. After making that statement, Mr Chunnu then proceeded to describe the general position regarding mixed marriages in Bangladesh. In all the circumstances, Mr Chunnu’s evidence could not be reasonably understood as testimony that he was present at the wedding or observed the appellant and the Hindu woman living as husband and wife. His reference was therefore not of such a kind as called for a consideration by the member different from that given by her to the other four references.

71 The Tribunal was not required to address the possibility that the five letters might have provided indirect evidence of the marriage, of the second kind mentioned above, bearing in mind that the evidence had not been invited and that the appellant’s own testimony relating to his alleged marriage had been found implausible.

72 If the references were overlooked, jurisdictional error would not be established. The distinction has been recognised between overlooking evidence which, if accepted, might have led the Tribunal to make a different finding of fact, and overlooking evidence which, if accepted, might have led it to find a well-founded fear of persecution established: cf Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [87]–[89], Applicant WAEE (at [46]), MZWBW v Minister for Immigration & Multicultural & Indigenous Affairs [2005] FCAFC 94 at [25]–[28], and Thirukkumar v Minister for Immigration and Multicultural Affairs [2002] FCAFC 268 at [29] per Cooper and Finkelstein JJ. The principle underlying the distinction is that the Act does not prohibit the making of wrong findings of fact; it requires a review with a view to the Tribunal’s deciding if it is satisfied that the applicant has a well-founded fear of persecution for a Convention reason. Only an overlooking of evidence which might have persuaded the Tribunal to be so satisfied, would amount to jurisdictional error, and it is only for jurisdictional error that the Tribunal’s decision can be set aside notwithstanding the privative clause in s 474 of the Act; Plaintiff S157.

73 The substantive claim of a fear of persecution because of a mixed marriage was of course addressed by the Tribunal. Acceptance of the references at face value might have led the Tribunal to find that if the appellant had married the Hindu woman, he would have had a well-founded fear of persecution if he were to return to Bangladesh. This would have been a different finding of fact from that which the Tribunal made, but would not have shown jurisdictional error, because, again, of the Tribunal’s conclusion that the marriage did not occur.

74 One further matter should be mentioned. The third letter, that of Dr Das, states: ‘The legal status of a marriage between a Muslim and a Hindu is void under the Muslim law currently in operation in Bangladesh ...’. Notwithstanding the words, ‘currently in operation in Bangladesh’, this statement appears to refer to religious, not secular law, and to say no more than DFAT had said: ‘... unless the non-Muslim converts to Islam, the marriage will not be recognised under Shariah law’. The Tribunal’s letter of 18 March 2004 was inviting comments on, relevantly, the proposition that marriages between people from different religions are specifically recognised under the Special Marriage Act, are celebrated by a marriage registrar or a magistrate without hesitation, and are registered locally. Dr Das’s letter did not address these matters.

CONCLUSION

75 For the above reasons, the appeal should be dismissed with costs.

I certify that the preceding seventy-five (75) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren.

Associate:

Dated: 27 September 2005

Counsel for the Appellant:	Ms M Avenell
Solicitor for the Appellant:	W R Ghioni
Counsel for the Respondent:	Mr T Reilly
Solicitor for the Respondent:	Phillips Fox
Date of Hearing:	8 July 2005
Date Last Submission Received:	10 August 2005
Date of Judgment:	28 September 2005