FEDERAL COURT OF AUSTRALIA

QAAT of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 1659

MIGRATION – protection visa – absence of appearance at hearing ‑ Tribunal made credibility findings

Judiciary Act 1903 (Cth), s 39B

Migration Act 1958 (Cth), s 475A

SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162 applied

Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 cited

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 cited

NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 cited

M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 cited

Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 cited

Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 cited

QAAT OF 2003; QAAU OF 2003 and QAAV OF 2003 v MINISTER FOR IMMIGRATION AND MULTICULTURAL AND INDIGENOUS AFFAIRS and REFUGEE REVIEW TRIBUNAL

Q 161 OF 2003

SIOPIS J

18 NOVEMBER 2005

PERTH

THE COURT ORDERS THAT:

1        The Refugee Review Tribunal is added as the second respondent.

2        The application is dismissed.

3        The applicants are to pay the first respondent’s costs.

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

REASONS FOR JUDGMENT

Introduction

1                     This is an application for judicial review of the decision of the Refugee Review Tribunal (‘the Tribunal’) made on 8 September 2003.  The Tribunal affirmed the decision of the delegate of the first respondent refusing the first applicant a protection visa.

2                     The application was heard by the late Justice Cooper on 15 October 2004.  After the untimely death of Justice Cooper, the parties to this application agreed that the application should be determined by another Judge of this Court on the basis of an examination of the papers filed in the Court, the submissions of the parties and the transcript of the proceedings.

3                     In accordance with the decision of SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162, I order that the Tribunal be joined as the second respondent.

4                     For the reasons which follow, the application for judicial review should be dismissed.

Background

5                     The applicants are a family of husband and wife and their son.  They are nationals of Bangladesh.  The husband and wife were married in Bangladesh in 1995.  The husband arrived in Australia on 23 March 1999 on a visitor’s visa.  Thereafter, he was employed as a chef in a restaurant business owned by his brother, who was already resident in Australia.  He obtained a temporary visa.  The wife arrived on 11 May 2002.  Their son was born in Australia on 14 February 2003.  The first applicant is the wife.  On 24 March 2003, some ten months after her arrival in Australia, the first applicant lodged an application for a protection visa.  The second and third applicants are the husband and son respectively, and they were included in the first applicant’s application as family members.  The claim for refugee status was based on the first applicant’s claim that she had a well founded fear of persecution if she was to return to Bangladesh.

The delegate’s decision

6                     In the application before the delegate, the case made by the first applicant was that she feared that if she went back to Bangladesh her parents‑in‑law (who the first applicant referred to as her ‘in‑laws’) and her husband’s brothers and their friends would harm or mistreat her.  The first applicant said that her husband came from a wealthy and educated family whereas she comes from a lower middle class family.  They married at her sister’s place without the full knowledge of both families.  When her husband told his family about the marriage she was not accepted but later on after her father died, her husband and his brothers struck a deal and she was allowed to stay in her in‑laws’ house.  When her husband came to Australia in 1999 she remained living with her in‑laws and found that she was treated like a servant in the house.  In August 2001 she met a lady who was the founder of an English school and women’s association.  The lady helped her get a job at the school.  When the in‑laws found out they came and picked her up and told her not to get involved with anything like that or she would be punished.

7                     The delegate rejected the first applicant’s application for a protection visa on the basis that he found that the first applicant did not have a real chance of persecution for a Convention reason if returned to Bangladesh and that her fear of persecution on return was consequently not well founded.

8                     The delegate had doubts as to the veracity of the first applicant’s claim.  One factor that weighed with the delegate was that the first applicant only made her claim for refugee status ten months after her initial arrival in Australia, after the first applicant and her husband had exhausted all other avenues to stay in Australia.  The delegate said that based on information before him the first applicant’s husband arrived in Australia on 23 March 1999.  The husband was granted a Temporary Residency Visa with a ‘8503 No Further Stay’ condition on 4 April 2002.  This Visa was to cease on 31 December 2002.  The first applicant arrived in Australia on 11 May 2002 and joined her husband.  The first applicant and her husband were granted a bridging visa on 6 January 2003 to enable them to stay until 28 February 2003 as the first applicant was 36 weeks pregnant.  On 11 March 2003 a further bridging visa for departure arrangements was granted until 25 March 2003.  However, on 24 March 2003, the first applicant lodged this application for a protection visa claiming fear of harm and mistreatment by her husband’s family if she was to return to Bangladesh.  The delegate said her behaviour was not consistent with that of a person with a genuine fear of persecution.  The delegate also relied on the observations of Heerey J in Selvadurai v Minister for Immigration and Ethnic Affairs (1994) 34 ALD 347 (‘Selvadurai’) (which are referred to below) to the effect that delay in applying for a protection visa is a legitimate factor that can be taken into account in assessing the genuineness of the application.

9                     The delegate also doubted that the first applicant had suffered harm at the hands of her husband’s family.  The delegate said that the first applicant had not sought assistance or protection from the relevant authorities in her home country, Bangladesh.  The fact that the first applicant had not sought protection from the Bangladeshi authorities caused him to doubt the veracity of the first applicant’s claims and her credibility, as one would have expected her to approach the appropriate authorities in her home country for assistance.

10                  The delegate also said that the claimed mistreatment is from private persons.  The delegate referred to the following observations of McHugh J in the case of Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225 at 258:

‘…  Persecution by private individuals or groups does not by itself fall within the definition of refugee unless the State either encourages or is or appears to be powerless to prevent that private persecution.  …’

11                  The delegate said he was unable to accept the first applicant’s claim that she would not be protected by the Bangladeshi authorities.  The delegate again referred to the fact that the first applicant had not sought protection from the Bangladeshi authorities in relation to the alleged misstatement by the in‑laws.  He went on to say that the Country Information showed that the current Prime Minister is a woman and there have been previous Prime Ministers who were women.  The delegate also noted that the Bangladesh government, the media and women’s rights organisations had fostered a growing awareness of the problems of violence against women and were addressing it.  The delegate referred to several statues that had been passed in Bangladesh prohibiting certain forms of discrimination against women.

12                  The delegate also noted that it was not necessary for the first applicant to live with her in‑laws.  The delegate said that the first and second applicants have been able to work and support themselves in Australia and there is no reason why they cannot do the same in their home country.  He said that the Country Information states that ‘citizens are generally free to move within the country’.

13                  The delegate found that the first applicant did not have a well founded fear of persecution for a Convention reason if she returned to Bangladesh.

Application to the Tribunal

14                  On 18 June 2003, the applicants lodged an application for review of the delegate’s decision.  On 8 August 2003, the Tribunal wrote to the first applicant and invited her to attend at a hearing.  The letter stated:

‘The Tribunal has considered the material before it in relation to your application but is unable to make a decision in your favour on this information alone.

Hearing of the Tribunal

We now invite you and any persons listed above to come to a hearing of the Tribunal to give oral evidence and present arguments in support of your claims.  You can also ask the Tribunal to obtain oral evidence from another person or persons.

…’

15                  The first applicant did not accept the Tribunal’s invitation to attend the hearing.  However, the first applicant provided the Tribunal with a supplementary statement dated 23 August 2003; and an extract from Time magazine about members of the Taliban and al‑Qaeda entering Bangladesh, and a news report about violence against women in Bangladesh.

16                  In the supplementary statement the first applicant stated that she was a vocal supporter of a famous feminist writer and pioneer of the Freedom Movement of Bangladesh Women, Dr Taslima Nasrin.  She also said that the Islamic groups are against the women’s movement and are sometimes responsible for hiring ‘killer groups’ to kill or rape women who defy the fatwa.  She stated further that the Bangladeshi authorities knowingly tolerated discriminatory and other offensive acts committed by local groups especially by the Islamic fundamentalist groups.  This, she said, was because the current regime relied upon the support of these groups to secure power.  The first applicant said that the persecution that she suffered was from her in‑laws when she protested against their discriminatory attitudes and brutality towards her.  She said that she later fled from the in‑laws to shelter under the leadership of a woman who is a pioneer of a women’s movement and the founder of an English school.  The first applicant said that this woman offered her a job at the school.  However, she said that when her in‑laws found that she was involved with a women’s association they came to pick her up and threatened that if she continued her job at the school and her involvement with the women’s association, they would punish her and ‘not hesitate to banish [her] from the world’.  She said that if she went back to Bangladesh she feared that her in‑laws would force her husband to divorce her and, if that was not possible, the in‑laws would kill either her husband or herself.  She said that she was scared that if she went back to Bangladesh the same fate would befall her as befell a famous ‘pop singer’ Mss Tinni.  Mss Tinni’s in‑laws had forced her husband to divorce her and she was kidnapped, raped and brutally killed by a hit man at the instance of her in‑laws.  Three days later her body was found hanging from a bridge in Dhaka.  The in‑laws had escaped prosecution by bribing the police and convincing them that she was killed by a boyfriend.  The first applicant said that she was afraid that if she challenged her husband’s family they would hire a hit man to ‘banish [her] existence from the world’.  She also said that the delegate did not take into account that the government would not enforce the laws for the protection of women because of the desire to appease the fundamentalist groups upon whom it depended for support.

17                  On 8 September 2003 the Tribunal affirmed the decision of the delegate not to grant the protection visa.

The decision of the Tribunal

18                  In its reasons for decision, the Tribunal noted that the applicants had not made themselves available to give oral evidence at a hearing.  The Tribunal was not satisfied as to the truthfulness of the claims asserted by the applicants.

19                  The Tribunal said in the opening part of its reasons:

‘The applicants have not availed themselves of the opportunity of a hearing.  In the absence of oral evidence from them that could be tested at a hearing the Tribunal is not satisfied as to the veracity of the particular claims before it.’

20                  The Tribunal did not accept that the first applicant was forced to live with her in‑laws under sufferance.  The fact that she could leave the country was at odds with the claim that she was forced to live with her in‑laws and was not able to live elsewhere in Bangladesh.  The Tribunal did not accept that the first applicant ran away from the in‑laws’ home, was threatened with punishment if she did so again, or that she and other family members were seriously mistreated due to her alleged escape.

21                  The Tribunal also found that the first applicant’s claim that she feared that if she was to return to Bangladesh, her in‑laws might arrange for her to be kidnapped and raped was entirely far fetched.  The Tribunal said that the claim was at odds with their past behaviour, the first applicant’s actual experiences and capacity to join her husband in Australia.  The Tribunal found the claim ‘fanciful’ and rejected it.

22                  The Tribunal also said that:

‘Even if the Tribunal were to accept, however, that violent crime against women is rife in Bangladesh; that women are generally downtrodden; that the applicant wife was a strong supporter of a famous feminist writer; and that she was for a while ostracised by her in‑laws and later made to fulfil a servile role while residing with some of them, there is no basis for a conclusion that she faced consequences amounting to persecution for a Convention reason or that she herself faces a real chance of such consequences in the foreseeable future.  Whether her ostracism and perceived servility arose due to class or gender, the consequences to her fall well short of persecution.’

23                  Further, the Tribunal also said:

‘The claim of the applicant wife that women in Bangladesh are altogether repressed is at odds with the recent elections of female prime ministers and with material in the United States of America Department of State Country Reports on Human Rights Practises, 2001, indicating the enactment of laws that are designed to prevent discrimination against women, use of dowries, and cruel or repressive behaviour against women.  While accepting that women are generally subordinate and that the enactment of some aforementioned laws is inadequate, especially in rural areas, the Tribunal is unable to conclude that the applicant wife in this case faces a real chance of persecution by reason of being a Bangladeshi woman, or however else such particular social group might be constructed, or for any other Convention reason.’

24                  The Tribunal said that in assessing all the evidence it found that the applicants do not face a real chance of persecution in Bangladesh for any Convention reason.  It said further:

‘…  Even if the applicant wife were to encounter serious harm from her family or others there is no basis for a conclusion in the circumstances of this case that she would be unable to call upon the protection of the State.’

25                  The Tribunal found that the applicants’ significant delay in applying for the protection visa of more than ten months after their arrival in Australia indicated that the applicants did not have a strong fear for their personal safely or wellbeing.  In forming this conclusion, the Tribunal referred to the comments of Heerey J in Selvadurai, where his Honour stated:

‘The applicant complained of the Tribunal’s taking into account the fact that the applicant did not lodge his application for refugee status until some 20 months after he had arrived in Australia and just prior to the expiration of his visa.  In my opinion, this was a legitimate factual argument and an obvious one to take into account in assessing the genuineness, or at least the depth, of the applicant’s alleged fear of persecution.’

Application for judicial review

26                  The applicants filed an application on 20 October 2003.  The application was made pursuant to s 39B of the Judiciary Act 1903 (Cth) and s 475A of the Migration Act 1958 (Cth).  The application was subsequently amended by an amended application filed on 9 August 2004.

27                  The grounds in the amended application are as follows:

‘The decision involved the making of a jurisdictional error.

Particulars

(a)     There was a breach of the rules of natural justice in that the Tribunal rejected the veracity of the claims made by the applicants in the absence of oral evidence from them that could be tested at a hearing.

(b)     The Tribunal made an error of law in finding that even if it were to accept that:

(i)      violent crime against women is rife in Bangladesh;

(ii)          women are generally downtrodden;

(iii)        the first applicant was a strong supporter of a famous feminist writer;

(iv)        she was ostracized by her in‑laws and later made to fulfil a servile role whilst residing [sic] some of them;

there is no basis for a conclusion that she faced consequences amounting to persecution for a Convention reason or that she herself faces a real chance of such consequences in the foreseeable future.

(c)      The Tribunal made an error of law in finding that whether the first applicant’s ostracism and perceived servility arose due to class or gender, the consequences to her fall well short of persecution.

(d)     The Tribunal took into account irrelevant considerations in finding that the claim by the first applicant that women are altogether repressed is at odds with the recent elections of female Prime Ministers and with material in the United States of America Department of State Report on Human Rights Practices, 2001, indicating the enactment of laws that are designed to prevent discrimination against women, use of dowries and cruel or repressive behaviour against women.

(e)      The Tribunal took into account irrelevant considerations in relying on the United States of America Reports on Human Rights Practices, 2001.

(f)       The Tribunal failed to take into account relevant considerations including:

(i)      written statement submitted by the Asian Legal Resource Centre to the Commission on Human Rights Fifty-Eighth Session on 15 January 2002;

(ii)          Country Report on Human Rights Practices 2001 – Bangladesh published by the United States of America Department of State in March 2002;

(iii)        Amnesty International Report 2002 – Bangladesh published by Amnesty International in May 2002;

(iv)        Country Report on Human Rights Practices 2002 – Bangladesh published by the United Stated of America Department of State in March 2003;

(v)          Amnesty International Report 2003 – Bangladesh published by Amnesty International in May 2003.

(g)     The Tribunal made an error of law in finding that while accepting that women are generally subservient and the enactment of some of the laws mentioned is inadequate, especially in rural areas, it is unable to conclude thatthe first applicant faces a real chance of persecution by reason of being a Bangladeshi women [sic], or however else such a particular social group might be construed, or for any other Convention reason.

(h)     The Tribunal made an error of law in finding that even if the first applicant were to encounter serious harm from her family or others there is no basis for a conclusion in the circumstances of the case that she would be unable to call upon the protection of the State.’

Affidavits

28                  At the hearing before Cooper J, counsel for the applicants sought leave of the Court to rely upon an affidavit dated 13 October 2004 sworn by each of the first and second applicants and an affidavit of Ms Nitra Kidson of 13 October 2004.

29                  The affidavit of the second applicant deposed to the circumstances of how he came to marry the first applicant, his relationship with his parents and the first applicant’s relationship with his brothers whilst she lived in Bangladesh and before she joined him in Australia and how the first applicant came to apply for a protection visa.  The first applicant’s affidavit deals with the time she spent living with her husband’s family in Bangladesh and also addresses the first applicant’s fears in relation to returning to Bangladesh.  In her affidavit, the first applicant also gives an explanation for not attending the hearing before the Tribunal and not applying for a protection visa at an earlier time.  The affidavit of Ms Kidson deposed that by the date the Tribunal published its reasons, the Country Information Report on Human Rights Practices 2001 – Bangladesh published by the United States of America Department of State in March 2002 was out of date and had been superseded by the Country Information Report on Human Rights Practices 2002 – Bangladesh published by the United States of America Department of State in March 2003.  Ms Kidson also referred to the availability of other sources of Country Information on Bangladesh (which are set out in particular (f) of the amended application) on 8 September 2003, the date on which the Tribunal made its decision.

30                  Counsel for the first respondent did not object in any material respect to the affidavit of Ms Kidson.  However, counsel for the first respondent did object to the entirety of the affidavits of the first and second applicants on the basis of relevance.  Justice Cooper did not rule on the objections, saying that he would rule on the admissibility of the affidavits in his reasons.  In my view, the affidavits of the first and second applicants should not be received into evidence.  The affidavits depose to facts and matters going to the merits of the applicants’ case and are not of relevance to this Court in conducting an application for judicial review (NASB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 24 and M211 of 2003 v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 660 where Crennan J considered the authorities).

The applicants’ submissions

31                  Counsel for the applicants relied upon four main arguments in support of the grounds of review.  I note that there was quite some divergence between the substance of the arguments advanced and the particulars of jurisdictional error set out in the amended application.  However, I will deal with the merits of the arguments as they were advanced.

32                  The first argument is that the Tribunal erred in making credibility findings against the first applicant, based on her non attendance at the hearing.  It was submitted that the Tribunal found that the first applicant was dishonest and untruthful, and that this finding was not based on evidence before it, but was based on the fact that the first applicant did not give oral testimony.  It was submitted that an applicant has the right to choose not to appear before the Tribunal.  It was further submitted that the fact that an applicant does not appear before the Tribunal does not mean that she or he is a dishonest person.  The Tribunal was not entitled to make a finding that an applicant is untruthful based on the non appearance of that applicant at a hearing, and it could not reject evidence merely because an applicant has not given oral testimony.  The applicants further submitted that the consequence of the finding of untruthfulness based on the first applicant’s non appearance, is that the Tribunal did not act judicially in respect of the evidence.  It was said that the adverse finding based on the first applicant’s non appearance was made early in the Tribunal’s decision, and that finding ‘infected’ the remainder of the decision.

33                  The applicants’ second argument was that the Tribunal had not adopted the proper approach in determining whether the first applicant had a well founded fear of persecution if she was to return to Bangladesh.  It was submitted that because the applicants alleged that the first applicant had been the victim of serious domestic violence for a long period of time, because of a socially inferior person marrying for love, the Tribunal had to give consideration to whether it was satisfied that the first applicant had a well founded fear of persecution by reason of her membership of a particular social group within the meaning of the Convention.  There were several social groups to which the first applicant could have belonged and, so it was submitted, the Tribunal should have identified which if any of those groups constituted ‘a particular social group’ for the purposes of the Convention.  It was submitted that the first applicant could be found to have belonged to any of the following groups:

‘”women in Bangladesh”; or “Married women in Bangladesh”; or “Married women in Bangladesh separated from their husbands, who are without the protection of male relatives”; or “women who have transgressed the mores of Bangladesh society”’.

34                  If one of the groups fell within the meaning of ‘a particular social group’ under the Convention, the Tribunal should next have asked whether the first applicant was a member of such group.  Then, if satisfied that the first applicant was a member of the group, the Tribunal should have considered whether it was satisfied that she had a well founded fear of persecution by reason of her membership of that group.  The applicants relied upon the case of Minister for Immigration and Multicultural Affairs v Khawar (2002) 210 CLR 1 (‘Khawar’).  The Tribunal had not adopted that approach and thereby committed jurisdictional error.

35                  The applicants’ third broad argument is that the Tribunal had misconstrued or misstated the first applicant’s case in three respects.  Firstly, the applicants submitted that the first applicant had not said that the women in Bangladesh are ‘altogether repressed’.  Approaching her case at that level of generality was to misunderstand her case.  Counsel for the applicants submitted that the first applicant’s case was specifically that she had been the victim of serious domestic violence at the hands of her husband’s family over a long period of time arising from the hostility felt towards her because of their son marrying a ‘socially inferior person’ in a love marriage, as opposed to an arranged marriage.  She feared that if she was to return to Bangladesh she would be subjected to serious violence from or at the instance of her husband’s family and that the authorities would not enforce the laws against such violence or offer protection.  Failure of authorities to enforce the laws is part of the widespread systematic discrimination against women tolerated by the Bangladeshi authorities.

36                  Secondly, the applicants submitted that the Tribunal did not take into account information supportive of the first applicant’s case in relation to the plight of women in Bangladesh and the failure of the authorities to enforce the laws against violence which was in the Country Information Report referred to by the Tribunal.  Further, it was submitted that the 2001 Country Information Report from the US State Department referred to by the Tribunal was out of date; and also there was other independent Country Information available to the Tribunal at the time of the Tribunal’s decision which contained information supportive to the first applicant’s case on the inadequacy of the enforcement of the laws protecting women in Bangladesh, which the Tribunal did not consider.

37                  Thirdly, the applicants submitted that the fact that the Tribunal misunderstood the first applicant’s case is also evident from the fact that the Tribunal appeared to ask itself the question as to whether being a member of ‘a particular social group’, was a ‘Convention reason’.  This alleged defect in the Tribunal’s understanding of the first applicant’s case arose, so it was submitted, because the Tribunal did not follow the process referred to in the Khawar case.  In his oral argument counsel for the applicants described this argument as an extension of the argument addressed in his second argument.

38                  The applicants’ fourth broad argument was that the Tribunal’s conclusion that there was no real chance of persecution for any Convention reason and the Tribunal’s finding that, even if the first applicant were to face serious harm from the family, there was no basis to conclude that she could not get protection from the State, was in error.  It was submitted that the Tribunal’s finding was infected by the finding of untruthfulness based on the first applicant’s non attendance at the hearing.  It was also submitted that the finding is not supported by reason and has no better foundation than an arbitrary selection of a result.

The first respondent’s submissions

39                  As to the applicants’ first argument, counsel for the first respondent submitted that the rejection of the claims made by the applicants on the grounds of lack of veracity was not based solely on the fact that the applicants had elected not to appear at the Tribunal.  Counsel for the first respondent submitted that the Tribunal also pointed to the fact that the first applicant was able to depart to Australia in an open manner as being inconsistent with her version that she was being detained against her will by her in‑laws.  Further, counsel submitted that the Tribunal had relied upon the fact that the first applicant had waited for ten months before making an application for a protection visa, and that this was inconsistent with a person who feared persecution on return to Bangladesh.  Counsel also said that the Tribunal had rejected the first applicant’s claim that she feared that if she returned to Bangladesh she would be killed at the instance of her husband’s family, as being far fetched and exaggerated.

40                  As to the applicants’ second argument, counsel for the first respondent submitted that the argument was misconceived because of the factual finding made by the Tribunal.  Counsel for the first respondent submitted that it was not necessary for the Tribunal to go through an exercise in identifying a particular social group by which to assess the question of whether there was a real chance of persecution for a Convention reason.  This was because the Tribunal as a matter of fact rejected the first applicant’s claims that she was subjected to serious mistreatment by her in‑laws and that there was a real chance that she would suffer serious mistreatment.  In particular, the Tribunal rejected her claim that her in‑laws might arrange for her to be killed if she was to return to Bangladesh.  Accordingly, once the Tribunal had reached those findings on the facts, it was not necessary for the Tribunal to identify specifically whether the first applicant was a member of a broad social group or narrow social group.

41                  As to the applicants’ third broad argument, counsel for the first respondent said that the Tribunal did not mistake or misunderstand the case of the first applicant.  The Tribunal understood that the first applicant’s claim was that she feared persecution in the form of serious domestic violence at the hands of her husband’s family.  However, counsel says that the Tribunal addressed the case made by the first applicant on those grounds but rejected it on the facts.

42                  As to the argument that the 2001 US State Department Country Information Report was out of date, counsel for the first respondent submitted that there was no material difference between the matters which were reported in the latest 2002 US State Department Country Information Report and the 2001 US State Department Country Information Report referred to by the Tribunal.  Counsel for the first respondent recognised that the Country Information cites instances of serious harm to women in Bangladesh such as rape, trafficking and prostitution.  However, so the first respondent submitted, the circumstances of harm, referred to in the Country Information, were not relevant to the circumstances of the first applicant in this case.  In this case the first applicant made claims in relation to the past conduct of her in‑laws and the fear of future harm at the hands of her husband’s family.  The first respondent submitted that, once the Tribunal rejected as a matter of fact the claims of past harm and the fears of future harm, the extent to which it explored by way of Country Information the general circumstances which prevailed in relation to women in Bangladesh was irrelevant.

43                  As to the fourth argument, counsel for the first respondent said that the argument amounted to an attack on the factual findings made by the Tribunal.  It was submitted that the impugned findings were open to the Tribunal and were not irrational.  Counsel also submitted that, in any event, the findings in relation to the question of whether the first applicant would be able to call on the protection of the authorities in respect of any threatened violence were not necessary for the Tribunal’s decision.

Reasoning

44                  I deal with each of the four arguments raised by the applicants in their submissions.

45                  The issue raised in the first argument is whether the Tribunal adopted an erroneous approach by rejecting the claims of the first applicant because it was not satisfied about the veracity of those claims.  The applicants say that the vice in the Tribunal’s approach is that its doubts as to the veracity of the first applicant’s claim were based on the failure of the applicants to attend a hearing and give oral evidence.  In my view, an examination of the Tribunal’s reasons shows that the rejection of the applicants’ case on certain key factual matters, was not founded only on the fact that the applicants did not attend the hearing and give oral evidence.  One fact which the Tribunal took into account in rejecting the first applicant’s claim was that the first applicant had not claimed refugee status until ten months after having arrived in Australia and the application was only made at the last minute.  The Tribunal placed weight on this fact.  This it was entitled to do.  Further, the Tribunal rejected the first applicant’s claim that she feared being killed at the instance of her husband’s family as implausible and inconsistent with the past conduct of the in‑laws and the fact that she was able to leave Bangladesh to join her husband without any hindrance.  This also was a view which was open to the Tribunal.  Further, the Tribunal also rejected the first applicant’s claim that that she was forced to live with her in‑laws under sufferance on the grounds that this was inconsistent with her being able to depart Bangladesh to live in Australia with her husband without any apparent hindrance from the in‑laws.

46                  Further, in this case the delegate had rejected the first applicant’s claims substantially on the grounds that he doubted the veracity of the claims.  Among the factors referred to by the delegate in his reasons for rejecting the genuineness of the first applicant’s claims were that the protection visa had only been applied for at the very last moment before the expiry of the second bridging visa; and that the first applicant had never complained to the authorities in Bangladesh about the alleged mistreatment by the in‑laws.  In its letter of 8 August 2003 to the applicants, the Tribunal had stated that on the material before it, it was unable to make a decision in the applicants’ favour.  Notwithstanding those circumstances the applicants elected not to attend the hearing.  In my view, in the circumstances of this case, it was open to the Tribunal to take into account as part of its rationale for not being satisfied of the veracity of the claims, the fact that the first applicant had not attended the hearing and, that therefore, there had not been an opportunity to test the first applicant’s claims.  Fact finding is the province of the Tribunal.  It was open to the Tribunal to make the findings it did.  The findings were not perverse (Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611).  It follows that that I do not accept the applicants’ first argument.

47                  The issue raised in the second argument is whether the Tribunal engaged in the proper process to assess the first applicant’s claim.  It was submitted that the Tribunal, did not embark on the proper process to characterise the particular social group to which the first applicant belonged for the purposes of determining whether she had a well founded fear of persecution by reason of being a member of that particular social group in the Convention sense.  The applicants’ argument is that the process which is referred to in the Khawar case was not undertaken by the Tribunal.  This submission proceeds on the assumption that the Tribunal had accepted as a matter of fact that the first applicant had been the victim of ‘serious domestic violence’ at the hands of her husband’s family and that she had a well founded fear that she would be subjected to ‘serious domestic violence’ at the hands of her husband’s family and their friends if she was to return to Bangladesh.  However, the Tribunal rejected the first applicant’s claim that she had been the victim of ‘serious domestic violence’.  It rejected the claim that the first applicant had been forced to live with her in‑laws under sufferance.  It specifically rejected the proposition that she had fled the in‑laws’ house and was threatened with punishment if she did so again and that she or other family members were seriously mistreated due to her alleged escape from her in‑laws.  Further, the Tribunal also rejected as ‘far fetched’ her expressed fear that if she was to return to Bangladesh her husband’s family would arrange for her to be killed and she would suffer a similar fate to that suffered by the pop star, Mss Tinni.  Accordingly, as the Tribunal found that the first applicant did not have a justified fear of serious domestic violence at the hands of her husband’s family, the occasion to embark upon a process of determining whether the fear of persecution was founded on a Convention reason did not arise.  It follows, therefore, that I do not accept that the Tribunal fell into jurisdictional error because it did not embark upon the process of inquiry advocated by the applicants.

48                  The third argument advanced by the applicants is that the Tribunal misunderstood or misconceived the first applicant’s claim.  In my view the Tribunal properly understood the first applicant’s claim.  The Tribunal addressed specifically the first applicant’s claims in relation to mistreatment whilst the first applicant was living with her in‑laws in Bangladesh and did not accept that the first applicant had been subjected to serious harm by her husband’s family.  It also specially addressed the first applicant’s perceived fear that she may be killed at the instance of her husband’s family if she was to return to Bangladesh and that she would not be able to obtain protection from the Bangladeshi authorities.  The Tribunal found that her perceived fear of serious violence at the instance of her husband’s family was ‘far fetched’.  The reality was that the Tribunal understood the first applicant’s claim but rejected it on the basis that it lacked credibility.

49                  I accept the argument of the first respondent that once the Tribunal made the factual findings rejecting the claim of the first applicant, the contents of the Country Information was not a material consideration for the Tribunal.  Whether Country Information supported the applicants’ case that the Bangladeshi authorities would not enforce laws protecting women like the first applicant from the violence which the first applicant described would only be relevant if the Tribunal had accepted the first applicant’s claim that she had a well founded fear that she would be subjected to the violence she described.  The Tribunal, however, rejected the first applicant’s claims on the facts.

50                  As to the third limb of the applicants’ third argument, I do not read the reasons of the Tribunal in the manner contended for by the applicants, but in any event, counsel for the applicants characterised the argument as an extension of the second argument.  It would follow, therefore, that the rejection of the second argument results in the rejection of this argument also.  Accordingly, I find that the Tribunal did not fall into jurisdictional error by reason of having misstated or misunderstood the claims made by the applicants.

51                  As to the applicants’ fourth argument, I accept the first respondent’s submissions that this argument amounts in effect to an attack on the fact finding of the Tribunal.  As I have said, it was in my view open to the Tribunal to have made the factual findings that it made.  As to the finding, that even if the first applicant was to encounter serious harm, there is no basis for any conclusion that she would not be able to call on the protection of the State, I accept the submission of the first respondent that this was a finding which was unnecessary to the Tribunal’s findings.  However, in any event, it was open to the Tribunal to make that finding because the delegate found on the evidence before him that the first applicant had not complained about the in‑laws’ alleged mistreatment to the authorities, and the first applicant did not contest this factual finding before the Tribunal.  It follows that I find that the Tribunal did not fall into jurisdictional error by reason of having made the factual findings that it made.

52                  It follows that the application must be dismissed with costs.

Associate: 

Dated:              18 November 2005