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MIGRATION - Application for review of a decision of the Refugee Review Tribunal - parties to a mixed marriage in India - allegation of lack of bona fides on the part of the Tribunal - use of 10 year old country information - selective use of country information - no finding of lack of bona fides.

NALE v Minister for Immigration [2002] FMCA 170 (15 August 2002)

NALE v Minister for Immigration [2002] FMCA 170 (15 August 2002)
Last Updated: 20 August 2002

FEDERAL MAGISTRATES COURT OF AUSTRALIA

NALE v MINISTER FOR IMMIGRATION
[2002] FMCA 170



MIGRATION - Application for review of a decision of the Refugee Review Tribunal - parties to a mixed marriage in India - allegation of lack of bona fides on the part of the Tribunal - use of 10 year old country information - selective use of country information - no finding of lack of bona fides.



Migration Act 1958 (Cth) s.474

R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598

SAAG v MIMIA [2002] FCA 547

SCAA v MIMIA [2002] FCA 668

NABB of 2002 v MIMIA [2002] FCAFC 225

Applicant:
NALE



Respondent:


MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS



File No:


SZ 515 of 2002



Delivered on:


15 August 2002



Delivered at:


Sydney



Hearing Date:


12 August 2002



Judgment of:


Raphael FM



REPRESENTATION

Solicitor for the Applicant:


Mr T Silva



Counsel for the Respondent:


Mr J D Smith



Solicitors for the Respondent:


Blake Dawson Waldron


ORDERS

(1) Application dismissed.

(2) Applicant pay the respondent's costs in the sum of $3,750.00

FEDERAL MAGISTRATES

COURT OF AUSTRALIA AT

SYDNEY


SZ 515 of 2001

NALE


Applicant

And

MINISTER FOR IMMIGRATION & MULTICULTURAL

& INDIGENOUS AFFAIRS




Respondent


REASONS FOR JUDGMENT

1. The applicant and his wife are citizens of India who arrived in Australia as visitors in March 2000 and applied for protection (class XA) visas on 3 April 2000. Their application was refused by a delegate of the Minister on 22 June 2000 and they sought review of that decision by the Refugee Review Tribunal on 14 July 2000. The Tribunal's decision was handed down on 9 March 2002. The Tribunal affirmed the decision of the Minister's delegate.

2. The applicant is a Hindu whose family live in the state of Kerala. The applicant has lived in Kerala but also in Bombay and in Poona. His wife is a Muslim from Bombay. They were secretly married in 1996.

"He said that his wife's parents have threatened her and that his own parents would not agree to the marriage. He said that even though Kerala was more tolerant on religious issues, marriage between a Brahmin and a Muslim was unthinkable. The applicant said that some people had walked into his home in Bombay claiming to be members of the Hindu fundamentalist party, the Shiv Sena. He said that they had slapped him in the face and had threatened that if he ever married his future wife they would never be allowed to live peacefully in India." [CB 69]

3. After leaving his wife at her parent's home in Bombay he returned to Kerala for approximately three years:

"The applicant said that he had been threatened by religious fundamentalists in Kerala and his wife had been visited by Shiv Sena members in Bombay asking her to get rid of him. He said that he and his wife had realised that they could not live peacefully in India. He said that if they were to return to India they would be discriminated against by reason of their religion and would face a life-threatening situation." [CB 69]

4. The Tribunal came to the conclusion, based upon the country information which was contained in the Court Book, that it was reasonable to expect the applicant and his wife to relocate to Kerala if they considered it would not be possible for them to live safely in Bombay. The Tribunal also came to the conclusion that the applicant would be accorded the same protection as any other citizen in respect of any persecution that he may fear from the Shiv Sena sufficient to remove a real chance of his being persecuted by reason of his involvement with the Youth Congress or the Congress Party. The Tribunal did not accept that there was a real chance that the applicant or his wife would be persecuted in the context of the periodic outbreaks of communal violence which have occurred in the past, and which the Tribunal accepted would occur in the future, in India.

5. The applicant's challenge to the Tribunal's findings was based upon the submission that there was no bona fide exercise of the power by the Tribunal. The applicant alleged that the Tribunal was biased, prejudiced, had a closed mind and was not open to persuasion. These are grounds for challenging the decision of a Tribunal that the High Court in Hickman (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598) explained would not be protected by a privative clause similar to the one found at s.474 of the Migration Act 1958 (Cth). The application before me was therefore competent.

6. The first submission made by the applicant was that the Tribunal used certain expert opinion wrongly and deliberately in a way to discredit the applicant. The opinion in question is found at [CB 85] and consists of a short passage of information on intermarriage from the Immigration and Refugee Board Documentation Centre in Ottawa dated 18 December 1991. Because the information is referred to consistently by the applicant it is best to reproduce it:

"According to Professor Narenda Wagle, Director of the Centre for Asian Studies at the University of Toronto, most Muslim-Hindu marriages encounter strong societal pressures. Whether Hindus are Jaina or not does not make a difference (Wagle 18 Dec. 1991). A Research Professor in Sociology who spent many years in India corroborated this information (17 Dec. 1991). Professor Janet Rubinoff, anthropologist and Research coordinator at the Joint Centre for Asia-Pacific Studies, University of Toronto, indicated that the strength and kind of pressure is rather determined by the area the couple live in (urban or rural), their socio-economic background, the religious and caste customs, and the degree of westernization of their families. For example, a Hindu-Muslim couple which lives in the city and has enough money to afford living separately from the husband's family will find it easier to deal with family pressure (Rubinoff 17 Dec. 1991). This information was corroborated by Professor Wagle (Wagle 18 Dec. 1991). Professor Wagle also indicated, as an example of religious pressure on Hindu-Muslim marriages, that, according to the Shariat, a Muslim woman who marries a Hindu man will be deprived of her privileges as a Muslim, unless the husband converts (Ibid.)"

7. This passage is referred to in the Tribunal's decision in the first main paragraph on [CB 76]. The applicant's complaint is that the passage does not make it clear that it is referring to marriages where no conversion takes place. It may well be referring to marriages in which conversion takes place and therefore the conclusions that are reached in the extract cannot refer to the applicant. The applicant states that the Tribunal did this deliberately and by misusing the paragraph and then making a finding of credibility about the applicant it was acting with a lack of bona fides.

8. I do not accept the applicant's reading of the passage. The document can be read as referring to mixed marriages where there has not been a conversion. The respondent submitted that there is an inference that if there is a converted marriage the pressure against the parties will not exist, therefore the report, which refers to pressures upon parties to a marriage, cannot possibly relate to converted marriages. In those circumstances there was no deliberate misuse of the document. I think this is the correct reading of the Canadian document. I do not believe that the conclusions reached on this subject by the Tribunal and found in the second paragraph of [CB 76] are unreasonable or show any indication of bias, prejudice, a closed mind or a mind not open to persuasion.

9. The second submission made by the applicant is that the Canadian extract is obsolete. It was dated 18 December 1991 which was in the year before the notorious attack on the Babri Mosque which, the applicant argues, started serious inter communal stress that has ever since plagued India. The applicant says that in his appearance at the Tribunal he informed the Tribunal that the situation was not as had been portrayed in the 1991 Canadian extract but was far more serious in the manner described by him and reported in the Tribunal's decision. He argues that with a knowledge of events subsequent to that extract the Tribunal showed a lack of bona fides in not accepting his evidence and in making a finding that he lacked credibility in relation thereto.

10. It is of concern that the Tribunal should be using material which was ten years old at the time the decision was made. The concern is exacerbated by the knowledge that the communal situation in India has changed for the worse. But the Canadian document was a document relating to a very particular aspect of community relations in India, namely intermarriage between Hindus and Muslims. No other evidence on that subject was produced by the Tribunal or by the applicant. This is not a case where a Tribunal has deliberately ignored information provided that would rebut the information upon which it relied. Such further information as was available to the Tribunal was most certainly considered even though it was information of a general nature. This information is discussed between [CB 73] and [CB 75]. I am of the opinion that it was open to the Tribunal to come to the conclusions which it did on the applicant's "well founded fear of persecution arising out of his mixed marriage" and in preferring the evidence of the Country Reports to that of the applicant did it not evidence prejudice, bias or lack of bona fides.

11. The final submission made by the applicant was that the Tribunal in coming to its conclusions about the applicant used its information selectively and used only information which was unfavourable to the applicant and ignored favourable material. The applicant points to extracts from the US Department of State 2001 Country Report on Human Rights Practices which appears at [CB 162]. This report is referred to by the Tribunal in the second paragraph at [CB 74]. The applicant points out that the more negative aspects of the extract at [CB 162] are not included at [CB 74]. For example, within the paragraph at [CB 162] there are two sentences commencing with the word "however" which qualify the otherwise supportive information. Those two qualifying sentences are not found at [CB 74]. In the second paragraph at [CB 162] there are further criticisms of India's policy of religious freedom which have not found their way into the extract at [CB 74]. This, the applicant alleges, indicates bias on the part of the Tribunal or at the very least a lack of bona fides. The applicant argues that the Tribunal by looking for information which it can use against the applicant rather than having an open mind and considering all information before coming to a conclusion.

12. It is not surprising that the introduction into the Migration Act of s.474 has resulted in a rash of applications to this court and to the Federal Court making allegations of a lack of bona fides on the part of the Tribunal. The matter has been considered by a number of single Judges of the Federal Court and their views have not always been consistent. The case that would give the most assistance to the applicant here is that of SAAG v MIMIA [2002] FCA 547. In this case Mansfield J found that findings which the Tribunal had made about the credibility of the applicant, usually containing descriptions of his evidence as "inherently unconvincing", constituted:

"An uncompromising approach to its assessment of the reliability of the applicant's claims." [29]

13. His Honour said at [36]:

"I am mindful that a finding that a decision of the Tribunal was not made in good faith would be exceptional. However, in this matter I have concluded that the Tribunal's decision was not made in good faith. I have reached that conclusion by inference of my consideration of the Tribunal's reasons as a whole, and not by taking any particularly part of its reasons in isolation. I will not repeat the analysis of the Tribunal's reasons discussed above. In my judgment, it reasons go beyond the Tribunal making findings of fact or making observations which involve it in making errors of fact or law, or simply reaching views which lack logic or which are wrong. The firm persuasion which I hold is that the Tribunal approached its review of the applicant's claims on the basis that it should look for reasons why it could reject those claims. In other words, in my judgment, its reasons overall show that it did not address the applicant's claims by asking whether he has a well founded of persecution for a convention reason, but in substance asking whether there was evidence which would enable it to reject the applicant's claims."

14. The view expressed by Mansfield J that a finding that a decision of the Tribunal was not made in good faith would be exceptional was echoed by von Doussa J in SCAA v MIMIA [2002] FCA 668 when he said at [38]:

"In my opinion it will be a rare and exceptional case where actual bias can be demonstrated solely from the published reasons for decision. Reasons for decision reflect conclusions reached at the end of the decision making process, and if the decision is against the party complaining, the expression of adverse findings on credit and fact are an inevitable part of the expression of the reasons. The mere fact of adverse findings at the end of the matter give rise to no inference as to the state of mind of the decision maker before and whilst the matter was under consideration, nor of pre-judgment of the issues that fell for a decision. Even where it is possible to show that the adverse findings or some of them are contrary to the evidence or unreasonable, or that the reasoning process is hopelessly flawed, that without more is unlikely to demonstrate that the decision maker had embarked on the case with a closed mind, not open to persuasion."

15. I have considered all of the allegations made by the applicant. I have read the Country Information contained in the Court Book. It seems to me that the situation here is similar to that found in NABB of 2002 v MIMIA [2002] FCAFC 225 where the Full Bench at [25] said:

"The appellant's contentions are, in essence, an invitation to the Court to read the Tribunal's reasons "with an eye keenly attuned to error" (see Minister v Wu Shan Liang (1996) 185 CLR 259 at 271-2)."

16. The Tribunal's decision does not to my mind indicate bias or prejudgment or a mind closed to the possibility of change. The case is not one which would be included within Mansfield J's definition of exceptional and certainly not one which would fall within the dicta quoted above from Von Doussa J.

17. I dismiss the application. I order that the applicant pay the respondent's costs which I assess in the sum of $3,750.00 pursuant to Part 21, rule 21.02(2) of the Federal Magistrates Court Rules.


I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of Raphael FM

Associate:

Date:
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