FEDERAL COURT OF AUSTRALIA

NADN of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 572

NADN OF 2002 v MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS

N 1168 OF 2002

ALLSOP J

10 JUNE 2003

SYDNEY

THE COURT ORDERS THAT:

1. The application be dismissed.
2. The applicant pay the respondent’s costs

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

REASONS FOR JUDGMENT

1                     The applicant seeks judicial review of a decision of the Refugee Review Tribunal (the “Tribunal”) made on 6 September 2002, affirming the decision of a delegate of the respondent not to grant a protection visa to the applicant.

2                     The applicant named on the application was one of the applicants before the Tribunal.  The other applicant before the Tribunal was her husband.  He is not named as an applicant in these proceedings; though some of the submissions on behalf of the applicant refer to “and others” and speak in the plural.  I will deal with the matter as if both wife and husband were applicants (referring to them as the female applicant and male applicant only because of the strictures of s 91X of the Migration Act 1958 (Cth) (the Act), the constitutional validity of which I assume in the absence of argument).

3                     I should say by way of introduction that though the applicants lacked legal representation in Court, the documents filed by them (generally ascribed to the female applicant) reflected the participation of some person or persons with legal knowledge or training.  Plainly from what they said in Court the applicants had no grasp of the legal issues.  Some of the submissions made, especially those concerning Muin v Refugee Review Tribunal (2002) 76 ALJR 966, lacked an appropriate evidentiary foundation.

4                     Though, in my view, the applicants have not demonstrated any ground of review, it is necessary to examine the matter in some detail for this conclusion to be explained.

The Claims of the Applicants

5                     The applicants claimed to be stateless Biharis from Bangladesh.  They arrived in Australia on 18 September 2000.  On 16 October 2000 they lodged an application for protection visas (Class XA) under the Act.  On 2 November 2000 a delegate of the Minister refused to grant protection visas to the applicants.  On 1 December 2000 the applicants applied for review of that decision. 

6                     On 5 September 2002 there was a hearing before the Tribunal member.  Both the female applicant and the male applicant gave evidence before the Tribunal.

7                     The primary claim for protection was made by the female applicant.  The female applicant is in her mid-twenties.  She stated to the Tribunal that she spoke, read and wrote Bengali and Urdu.  She said that she married the male applicant on 19 May 2000.  The applicants travelled to Australia using passports issued in Dhaka, Bangladesh on 29 August 2000.  The applicants claimed that an agent helped them get the passports. 

8                     The female applicant claimed that she had lived in the Geneva refugee camp in Dhaka from birth until her departure from Bangladesh, that she had been educated in a camp school and that she had never been employed.

9                     The Independent Country information before the Tribunal indicated that “Bihari” was a term given to a group of non-Bengali residents and citizens of the former East Pakistan most of whom originated from the North Indian State of Bihar.

10                  The applicant wife’s claims were summarised by the Tribunal at p 5 of its reasons as follows:

·           While living in Geneva camp she was assaulted and intimidated:  She reported assaults to the police, but they were reluctant to follow up;

·           She and her husband were continuously harassed and intimidated with threats of abduction and rape. They were constantly in fear of their lives;

·           During a shopping trip in her locality she was set upon in a public street, taken to an unknown location, brutally assaulted and raped by several locals and left unconscious in the street.  Members of her community found her and took her to hospital;

·           She reported the incident to the police but they were reluctant to press charges against locals;

·           Camp authorities were not in a position to protect her;

·           After she was assaulted the applicant husband was assaulted and severely attacked in the street;

·           They were able to escape from Bangladesh with the help of an agent who arranged their passports and helped them to leave Bangladesh safely;

·           Their lives will be in danger if they return to Bangladesh.

11                  The Tribunal then listed a number of documents which the applicants had provided in support of their claims. 

12                  The applicants at this time had a migration adviser who provided written submissions concerning the facts of the case and the law to be applied.

13                  Both the female applicant and the male applicant gave evidence before the Tribunal.  The reasons of the Tribunal set out the pertinent parts of their evidence from pp 6 to 10 of the Tribunal’s decision.

14                  In its findings and reasons, the Tribunal noted that the male applicant only filled out part D of the Protection Visa Application Form, being the part of the form relevant for a member of a family unit who does not have claims of his or her own.  However, the Tribunal noted that the male applicant also claimed that he would be persecuted if he returned to Bangladesh.

15                  The failure of the applicants’ claims rested fundamentally on the fact that the Tribunal disbelieved both of them.  It is necessary to understand why this was so in order to evaluate their claims for review.

16                  The first matter raised by the Tribunal was the fact that both had Bangladeshi passports which were taken to be genuine.  In these circumstances, as Biharis, it was found that they were likely to be Bangladeshi citizens, as opposed to non-citizen Biharis who, as a group, are generally unable to obtain passports.

17                  The Tribunal indicated that it had considerable difficulty accepting the applicants’ claims that they had lived in a refugee camp all of their lives.  The first reason for this difficulty was the independent evidence before the Tribunal that Biharis were Urdu speakers.  The female applicant had said that she spoke and understood Urdu; however, she was unable to communicate in Urdu with the Tribunal through the interpreter speaking Urdu.  The male applicant did not claim to speak Urdu.  This led the Tribunal to reject the male applicant’s contention that he was a Bihari at all. 

18                  The Tribunal did not accept that the applicants lived in a refugee camp prior to coming to Australia.  The first factor leading to this conclusion was that the independent evidence before the Tribunal indicated that the Biharis living in refugee camps in Bangladesh are those who are still seeking repatriation to Pakistan.  The Tribunal concluded that the applicants had Bangladeshi nationality and so concluded that the applicants did not fall within this category and that there was no reason for them to live in the refugee camp.

19                  Further, the Tribunal rejected many of the documents produced by the applicants in support of their claim.  It noted the high frequency of document fraud from Bangladesh and in addition perceived particular difficulty with the documents in question.  For instance, one document supposedly issued in 1992 showed the applicants as married to each other when in fact they did not marry until 2000.  That document was found to be fraudulent.  Further, the female applicant did not recognise a document which the male applicant stated was a ration card which he had used.  The Tribunal concluded that, given the independent evidence as to the prevalence of document fraud in Bangladesh, it would place no weight on these documents as evidence in support of the male applicant’s claims to have lived in a refugee camp.  In the light of the conclusions about these documents, the Tribunal rejected a request for more time to obtain more documents from Bangladesh.

20                  Plainly important, however, to the reasoning of the Tribunal was an inconsistency in the evidence of the female applicant and the male applicant.  The female applicant claimed that she had been abducted and assaulted in Bangladesh in July 2000.  The Tribunal did not accept this claim.  However, the Tribunal noted that the female applicant claimed that after this incident occurred she was hospitalised for 2 days and was then taken home by her husband and her parents.  However, the male applicant gave evidence that his wife was released from hospital on the same evening that she was admitted and that he, his father and his brother took her home.  The Tribunal said about this conflict of evidence:

…In my view, if this incident had occurred, it would have been a significant event in the applicants’ lives.  I am of the view that if the incident had occurred, the applicants would have given substantially consistent evidence about such matters as how long the applicant wife was in hospital for after the incident, even taking into account the lapse of time since the alleged incident occurred.  I consider that the inconsistency between the applicants’ evidence is significant.  In the circumstances, I am unable to be satisfied that the applicant wife was abducted and assaulted in the circumstances she has claimed, or at all.  As I do not accept that the applicant wife was assaulted, I do not accept that the applicant husband was assaulted by the same people who assaulted his wife.  I am of the view that the applicants fabricated these claims in an attempt to enhance their claims to refugee status.

21                  The Tribunal then referred to independent evidence concerning Biharis, even those who lived in refugee camps where conditions were poor, and concluded from that independent evidence that as a general matter the Biharis did not face persecution in Bangladesh.

22                  Thus, the conclusion reached by the Tribunal that it was not satisfied that either applicant had a well-founded fear of persecution for a convention reason was based on a disbelief of all relevant evidence given by each applicant and generally based on country information.

The Application for Review

23                  The grounds in the application were six-fold as follows:

i)                    The tribunal erred in law amounting to jurisdictional error in finding that the Applicant does not have any profile that place her on her return back to the country of habitual residence and does not meet the criterion set out in s.36(2) of Act for a protection visa;

ii)                  Exceeded its jurisdiction in making its decision to affirm the First Respondent’s decision’

iii)                Constructively failed to exercise its jurisdiction in arriving its decision;

iv)                The applicant (me) entitled for a protection visa, Which she has applied.

v)                  The Applicant have a well founded fear of persecution in the country of her habitual residence i.e. Bangladesh.

vi)                The Tribunal has acknowledged that the applicant (me) is of Bihari background but failed to amount of persecution the application (me) will be facing on my return to Bangladesh.

24                  These grounds plainly reflected some legal assistance; nevertheless, they failed to descend into any particularity whatsoever beyond assertion of ultimate facts.

25                  The first submissions filed on behalf of the applicants were in two parts.  One was entitled simply “submissions” and it attached what was described as “written argument” which in turn attached an extract from the decisions in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2 in the High Court and SGDB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 74 in the Federal Court as well as annexing photocopies of ss 422B and s 424A.  The first matter argued in these submissions was that there was actual bias demonstrated by the Tribunal.  This was said to be a ground of review under par 476(1)(f).  This provision was, of course, repealed in 2001.  However, if there were actual bias on the part of the Tribunal, there was no issue that that would amount to jurisdictional error for the purposes of s 39B of the Judiciary Act 1903 (Cth).

26                  It is unnecessary to deal in detail with these submissions on actual bias.  It is sufficient to say that there is no basis for the foundation in the submissions.  The submissions in effect amount to a strong complaint about the fact finding and nothing more.

27                  The next basis for complaint was an assertion that Muin provided a basis for setting aside the decision.  This was put forward as a legal proposition upon which successful review could be based.  No evidence was put forward on behalf of the applicants to ground a submission that they would have done something or failed to do something had they known that some document or documents was or were before the Tribunal or not before the Tribunal.  The balance of the submissions were directed to substantiating a position in relation to privative clause decisions in accordance with what the High Court said in S157. 

28                  In the attached written argument, the applicants made assertions of the genuineness of their claims in terms which do not assist in understanding any particular ground of review under s 39B of the Judiciary Act.

29                  At the hearing on 8 April 2003, the male applicant raised a complaint about the conduct of the Tribunal in refusing to make its own enquiry in Bangladesh if it was not satisfied by the documents put forward by the applicants.  No such obligation rested on the Tribunal, especially in circumstances where it had perceived fraud in the production of the documents that it had been shown.

30                  Paragraph 2(b) of the applicants’ submissions (under the actual bias heading) stated the following:

The Tribunal does not accept that any minor misunderstandings or mistranslation, for example once the interpreter interpretation that was of sufficient magnitude as to prevent the Applicant giving evidence or understanding what was said to her or in making herself understood.

31                  Upon reading this, I was not clear what this was directed to.  It was clear at the hearing of the matter that there was no complaint about any deficiency in the interpreting at the Tribunal hearing.

32                  The submissions of the applicants also raised, somewhat obliquely, s 424A of the Act.  Mr Smith, most fairly, dealt with the issue, drawing out a possible argument unarticulated by the applicants.  I asked Mr Smith to file and serve further submissions on this issue.  The issue arose because of the way in which the Tribunal had dealt with the perceived conflict of evidence between the female applicant and the male applicant concerning the former’s hospitalisation:  see [20] above.

33                  Section 424A is in the following terms:

(1)   Subject to subsection (3), the Tribunal must:

(a)     give to the applicant, in the way that the Tribunal considers appropriate in the circumstances, particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and

(b)     ensure, as far as is reasonably practicable, that the applicant understands why it is relevant to the review; and

(c)      invite the applicant to comment on it.

(2)   The information and invitation must be given to the applicant:

(a)     except where paragraph (b) applies—by one of the methods specified in section 441A; or

(b)     if the applicant is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.

(3)   This section does not apply to information:

(a)     that is not specifically about the applicant or another person and is just about a class of persons of which the applicant or other person is a member; or

(b)     that the applicant gave for the purpose of the application; or

(c)      that is non-disclosable information.

34                  Section 424A can be seen as a surrogate for natural justice.  Indeed, a Full Court in WAAJ v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCAFC 409 concluded (at [36]) that s 424A must be treated as an exhaustive statement of the Tribunal’s obligation to bring information to the attention of a visa applicant, “overriding any wider common law obligation”.  This case was decided after (and taking into account) the High Court decision in Re Minister for Immigration and Multicultural Affairs; ex parte Miah [2001] HCA 238; 179 ALR 238.  Miah was distinguished on the basis that s 424A was not in the Act at the time of the Tribunal decision in question:  see WAAJ at [36].  This is true, but as French J pointed out in WAID v Minister for Immigration and Multicultural Affairs [2003] FCA 220 at [55], s 57 of the Act which was in force was relevantly indistinguishable from s 424A.

35                  Mr Smith submitted that I need not decide whether this part of WAAJ bound me as part of its ratio.  He submitted that on any view both “common law” natural justice and the substantive demands of s 424A(1) had been satisfied.  Mr Smith at first put this submission on the basis that there was no evidence to the contrary of this proposition.  I indicated to him that if this were to be how he wanted to leave the matter I would want to listen to the tape of the hearing.  Mr Smith indicated that the respondent had no objection to this.  The applicants agreed to this course.  I marked the tape cassettes Exhibits R1 and R2.   I listened to the relevant part of the tape recording in which the Tribunal put the applicants on notice that this discrepancy between the evidence of the female applicant and male applicant was a matter of importance. 

36                  Having listened to the tape I conclude that the matter was raised squarely with the applicants.  The matters to which subs 424A(1) directs itself were attended to by the Tribunal.  The Tribunal afforded fairness to the applicants in the way it dealt with the issue.  However, the strictures of subs 424A(2) were not complied with.  For the reasons expressed by the Full Court in NAHV of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 102 this procedural omission is not fatal and does not found a ground of review.

37                  After Mr Smith filed the supplementary submissions and after the further hearing of the matter on 29 April 2003, the applicants filed further submissions about the matter.  These further submissions appeared to deal with the matter afresh.  Their preparation appeared to have been assisted by someone with legal knowledge or legal training.  Once again, the issue of Muin was taken up.  The submissions stated that the “applicant further believed” various matters including the letter provided by the Tribunal to the applicants was misleading because the Tribunal had not read the Part B documents thoroughly upon which the original decision maker had relied.  The submissions proceed to explain what the “applicant” believed about the lack of procedural fairness.  There was no evidence to support any of these submissions.  There was no evidence (or even submission) to indicate what, if any, difference would have been made to either or both applicants had they known of some fact.  The submission attempts to develop general propositions from Muin applicable to the applicants’ position here.  As I have said earlier, there was no evidence from either applicant that he or she would have done something or not have done something had he or she known of some fact related to the transmission or non-transmission of the Departmental file to the Tribunal.

38                  I do not know whether these further submissions were provided to the Minister.  I am of the view that they do not advance the matter any further.  However, I will, for completeness, make a copy available to the Minister’s representative after judgment has been handed down.

39                  For the above reasons I am unable to ascertain any ground of review which would lead me to conclude that the Tribunal had committed any error.

Associate:

Dated:              10 June 2003