'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.
I certify that the preceding fifty‑two (52) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.