FEDERAL COURT OF AUSTRALIA

NAGR of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 853

NAGR OF 2002 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS

N339 of 2002

MADGWICK J

26 JUNE 2002

SYDNEY

THE COURT ORDERS THAT:

1.         The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

(revised from transcript)

HIS HONOUR:

1                     The applicant, in her application for judicial review of an adverse decision of the Refugee Review Tribunal (“the Tribunal”) appears in person.  Her English is very limited and her facility in comprehending curial processes also appears to be somewhat limited.  She has been assisted in presenting her case not only by an interpreter but by her alleged brother-in-law, who is fluent in English and understands the legal system about as well as most laymen not involved in the system would understand it.  I have no reason at all to doubt that he is not the applicant’s brother-in-law and I say that, having read with care the Tribunal Member’s decision. 

2                     Her case to the Tribunal was that her husband had been received as a refugee from Bangladesh by Australia because of his persecution as a Hindu.  He was issued with a protection visa in 1994.  Unfortunately, in 1996 he was killed in a motor vehicle accident in Sydney. 

3                     The applicant came to Australia on 8 April 2001 with her young daughter, to pursue a claim for compensation arising from her husband’s death.  Persons claiming with her were her mother-in-law and brother-in-law, who is here today.  Those three adults and the applicant’s daughter travelled to Australia on visas issued to enable them to give evidence in person to the Compensation Court of NSW.  There had previously been made a compensation order vesting the amount of compensation solely in a woman who had been the deceased’s de facto wife in Australia and her child, who was the deceased’s de facto stepchild.

4                     On 30 April 2001 the Compensation Court of NSW revoked that previous order and awarded the applicant and her daughter and the deceased’s mother in total about a third of the available funds. 

5                     About a fortnight later the applicant and her daughter applied for protection visas, as did her mother-in-law and brother-in-law.  The Tribunal Member said:

“Like [her husband], [the applicant] has two planks of claims, one political, one religious. 

The political claims are that she had faced extreme danger in Bangladesh because of [her husband’s] link to the Awami League [as is well known the major political party in opposition to the presently ruling [Bangladesh Nationalist Party (‘the BNP’)]. She and [her husband] had had to go into hiding for periods while they had been together in Bangladesh, and after his departure for Australia in 1990 she had had to go on hiding from time to time.

[The applicant’s] religious claims (like [her husband’s] claims) are that as a Hindu she faces harm and has experienced harm from Muslims in Bangladesh.  She claims that as a Hindu woman she has been continually threatened with harassment, attack and rape by Muslim men, that she had been raped by a gang of Muslims upon reaching puberty; that in 1992 when there was communal rioting in Bangladesh in the wake of the anti-Muslim Babri Mosque incident in India, she had been raped again by Muslims, and that when [her husband’s] dead body had been sent to Bangladesh for burial in 1996 she had been raped again.”

6                     To my mind, with great respect, the Tribunal Member’s conclusion that the applicant was not the lawful wife or at least the commonly accepted de facto wife of the late Nermal Chandra Roy, whom I intend to refer to as her husband, appears sufficiently insupportable that I am prepared to assume that ultimately it could be found to be legally erroneous, if only as a failure bona fide and rationally to inquire into the matter as the Migration Act 1958 (Cth) (“the Act”) requires, on any view of the privative clause. 

7                     The applicant’s grounds of review might be said to be about par for the course for an unrepresented applicant in this Court.  That is, it is necessary to approach them in the spirit of trying to understand what they mean and what possible matters of legal significance they might raise. 

8                     As counsel for the respondent put it, they appear to be that the Tribunal:

(a)        failed to “internalise” the circumstantial grounds of the applicant’s application for refugee status for herself and her daughter in weighing the subjective and objective features of the claims, having regard to documents provided which in her view, clearly established that she was a genuine refugee on account of her religion as a Hindu in Bangladesh, which country of course is predominantly Islamic;

(b)        did not give her an opportunity to present oral evidence from one of her witnesses;  and

(c)        made a decision that was not supported by the independent sources of facts here.

9                     A further claim was orally made before me that she was not allowed to:

·                    put in some documents

·                    call witnesses

·                    say everything that she wished to say.

After a degree of debate and inquiry, persisted in by myself and reluctantly, though honourably, aided by counsel for the respondent, some of these matters may be put aside.  First, in relation to the claim that she was not allowed to say everything that she wished, the applicant agreed that everything that she wanted to say was in fact in her written submission, which the Tribunal had. 

10                  Second, in relation to the claim that she was not allowed to call witnesses, in the end this boiled down to a failure to be allowed to call one witness.  However, a professionally prepared affidavit dealing with the relevant matters, which had been prepared for use in workers’ compensation proceedings, was in fact before the Tribunal Member so that the substance of that evidence was before that Member.  A failure to hear from the witness in person can hardly rationally be said to have influenced the Tribunal Member.  In any case, that witness’s evidence went to the fact of the applicant’s de facto marriage to her late husband, and I have already indicated that I am prepared to assume an error of law in the way that matter was approached.

11                  Third, it was said that she was unable to put in some documents that she wanted to put in for the Tribunal’s consideration.  Counsel for the Minister carefully dissected an inch high bundle of papers that was presented as the documents which were sought to be presented.  Once more copies of some of the documents were set aside, it appeared that some of the documents were in fact before the Tribunal.  This was ultimately agreed to by or on behalf of the applicant.  It was also agreed that some of the documents did not come into existence until after the Tribunal Member had given his decision. 

12                  There was, however, a third category of documents that came into existence after the oral hearing before the Tribunal Member on 20 November 2001 and before his decision on 5 March 2002.  It was said, from the Bar Table, that the circumstances in which the Tribunal refused to receive these documents were that, on one of the two occasions that the applicant and her brother-in-law went to the Tribunal’s offices after the oral hearing, they had presented the papers to a receptionist who had taken them away.  The receptionist came back, saying that he or she had spoken to the Tribunal Member, but that the Member had said in effect that he would not receive them.  The receptionist was away for about five to seven minutes.

13                  The Tribunal’s file refers to matters having occurred differently.  On the first occasion after the hearing that the applicant presented herself at the counter, she sought an extension of the time in which she might produce certain further documents relating to the workers’ compensation proceedings, to which I have already referred.  This was permitted.  The applicant ultimately agreed with that version of events.  On the second occasion, a written submission and a good many documents, some of them dealing with conditions in Bangladesh for Hindus were received by the Tribunal.  That seems to be consistent with the material in the Court Book, prepared by the respondent’s solicitors, which seems to show that the applicant did present such material at some point after the oral hearing as well as presenting a written submission after the oral hearing.

14                  I have considered whether I should adjourn the proceedings to enable the applicant time to file affidavits dealing with the circumstances upon which she and her brother-in-law could be cross-examined but I have decided against it.  First, the prospect that they would persuade me, when advertently or inadvertently exaggerated claims of inability to present other material had been made, was not high. 

15                  Secondly, none of it would matter unless the Tribunal Member was in breach of his duty.  Let it be assumed, as I proposed (in dissent) in relation to the Act as it earlier stood, that a Tribunal Member has a positive duty as part of the review process at least to consider seriously whether or not to receive late material:  Semunigus v Minister for Immigration & Multicultural Affairs (2000) 96 FCR 533 at [548-9].

16                  It nevertheless seems to me that, having viewed the material myself (MFI “A”), the Tribunal Member, being familiar with the applicant’s case, could reasonably have decided in five to seven minutes whether the nature of the material was such that it would be likely to add materially to his knowledge of the relevant facts.  Nothing in the material seemed to me to be so decisive of the existence of new facts that a legal error must be inferred.  Hence, it ultimately would not matter whether the applicant’s account of efforts to put material in was correct or not. 

17                  Returning to the matters set out in the application to the Court to which I have referred at [8] above, the first and third of these go simply to the facts and do not assist the applicant.  The second is not an operative error for the reasons I have given, if it were otherwise an error.  It was not, however, in any case an error.  There is no obligation on the Tribunal to hear from anybody other than an applicant:  see s 425.  The Tribunal Member was not required to do more than to have regard to the applicant’s wishes:  s 426(3).  The question of hearing from the witness in question was expressly referred to by the Tribunal Member and the substance of the evidence was addressed and rejected by the Tribunal Member.

18                  I return to the very odd conclusion that the applicant was not legally married or the de facto wife of her late husband.  The rejection of the applicant’s claim to have been married to her husband could have gone only to the “political” claim.  There were other reasons, which appear legally unexceptionable, relied on by the Tribunal Member for rejecting her claims that any great harm had in fact befallen her as a Hindu woman.  In any case, as to both the political claims and the religious claims, the Tribunal Member, had available to him material subsequent to the oral hearing in November 2001, both from the applicant and from his own sources.  The Tribunal’s finding was that effective protection was available to the applicant and her daughter in Bangladesh.  The BNP were elected to power in October 2001 and the Tribunal Member was satisfied that the new BNP-led government had:

“...shown itself to be determined to prevent religious and other violence and to protect people [including Hindus] from harm.  In these circumstances, I am not satisfied that Hindus in Bangladesh face a real chance of persecution, and I am satisfied that they can avail themselves of the protection of the authorities in their own country.”

19                  In relation to the “political” claims, it seems that the rejection of the applicant as a witness of truth depended in part upon some very strange aspects of her story which enabled the Tribunal Member, it seems to me with respect quite unjustifiably, to question the finding that she was not married to her husband, so that the Tribunal Member said:

“I find that she is not a witness of truth and am not satisfied that any of her claims are credible.  That is, I am not satisfied that she faced persecution for political reasons linked to [her husband] or that she had suffered harm by Muslim gangs” (emphasis added)

20                  But it is not a case where those aspects of the story concerning the marriage and the subsequent de facto relationship that she had in Bangladesh, allegedly countenanced by the deceased’s family, should be seen as the only reason for rejecting her credit. For example, the Tribunal Member said:

“The applicant’s account of an alleged 1996 abduction and rape is so fantastical that I am not satisfied that it occurred.  She could not properly explain why such an event could have taken place, and how it could have happened in a public place while she was surrounded by 10 - 15 family members.  I consider that the applicant invented this claim also to boost her application for a protection visa.”

The Tribunal Member followed that with the next observation:

“In the light of all of the above, I am not satisfied that the applicant experienced harm in Bangladesh in terms of rape and political violence.  Given this, I am not satisfied that she faces a real chance of such harm in the future.” (emphasis added)

21                  I understand the Tribunal Member, for a variety of reasons, to have rejected her as a witness of truth.  It is one thing to say that the finding that she was not married to her late husband might be legally objectionable; it is another to say that it was sufficiently central to the rejection of her story that the result might have been different had the Tribunal Member not approached the matter in that way.  It seems to me that the rejection of the accounts of the violence allegedly suffered by the applicant amounted to, as it were, free-standing and very powerful rejections of her credibility.  There is no serious prospect that the result might have been different had the Tribunal Member not approached the question of the marriage in the way that he did. 

22                  For these reasons, it seems to me that the application should be dismissed with costs.

Associate:

Dated:              4 July 2002