SZEWL v Minister for Immigration
[2008] FMCA 1495
•3 November 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZEWL v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1495 |
| MIGRATION – Persecution – review of Refugee Review Tribunal decision – visa – protection visa – refusal – no breach of s.425 shown – no breach of s.424A shown – Tribunal did not mislead the applicant – Tribunal did not rely on assumptions or irrelevant considerations – no breach of s.91R(1) shown – Tribunal did not breach s.424 when seeking information from Department of Foreign Affairs & Trade. |
| Migration Act 1958, ss.91R, 424, 424A, 424B, 425, 441A, 474 |
| Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 SZIAT vMinister forImmigration & Citizenship [2008] FCA 766 SZLWQ v Minister for Immigration & Citizenship [2008] FCA 1406 SZIAR v Minister for Immigration & Citizenship [2008] FMCA 1348 CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 |
| Applicant: | SZEWL |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1479 of 2008 |
| Judgment of: | Cameron FM |
| Hearing date: | 21 October 2008 |
| Date of Last Submission: | 21 October 2008 |
| Delivered at: | Sydney |
| Delivered on: | 3 November 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr R. Nair |
| Counsel for the Respondents: | Mr J. Mitchell |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application be dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1479 of 2008
| SZEWL |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Bangladesh where he claims he was persecuted for political reasons and forced to flee to South Africa. On leaving Bangladesh, he ceased being a practising Muslim. He arrived in Australia on 12 April 1994. The applicant claims that while in Australia he began a de-facto relationship and had a child with a Philippino Catholic woman, who was sent back to the Philippines in 2000. He claims to fear persecution in Bangladesh because of his de-facto relationship, the resulting child and the fact that he has given up Islam and is an apostate.
Since his arrival in Australia, the applicant has lodged two applications for a protection visa. His first such application was made in July 1994 but was withdrawn on 12 January 1996. Following this he applied for several other sorts of visas. The second protection visa application, which is the visa application the subject of these proceedings, was made on 15 September 2000. This application was refused by the Minister’s delegate on 3 November 2000. The applicant then applied to the Refugee Review Tribunal (“Tribunal”) for a review of that departmental decision. The applicant was unsuccessful before the Tribunal and has applied to this Court for judicial review of the Tribunal’s decision.
Procedural history
The Tribunal decision the subject of these proceedings is the fourth such decision relating to the applicant. The procedural history is:
a)the first Tribunal decision was made on 29 November 2002 but was remitted to the Tribunal by an order of the Federal Court on 25 July 2006 (Court Book (“CB”) page 91);
b)the second Tribunal decision was signed on 28 November 2006 and was quashed by an order of this Court on 30 March 2007 (CB 150); and
c)the third Tribunal decision was signed on 31 July 2007 and was quashed by an order of this Court on 14 December 2007 (CB 241).
In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.
For the reasons which follow, the application will be dismissed.
Background facts
The facts alleged in support of the applicant’s claim for a protection visa are set out on pages 4 – 17 of the Tribunal’s decision (CB 312 – 325). Relevantly, they are in summary:
Primary application
In his application for a protection visa the applicant claimed he is of Bengali ethnicity and a Muslim. He stated he was a Jatiya Party youth leader in Bangladesh and he was persecuted by the BNP and eventually forced to leave his country. He resided in South Africa between February 1992 and April 1994 and holds a South African passport which was obtained illegally.
Evidence before the previously-constituted Tribunals
The applicant did not provide any additional written claims, or attend the hearing on 29 November 2002 before the Tribunal as first constituted.
In his evidence before the Tribunal as secondly constituted in 2006, the applicant made the following claims:
a)he grew up in a strict religious Muslim family and completed twelve years of religious education;
b)in August 1999 after his arrival in Australia, he was introduced to a Roman Catholic woman (“Ms L”) through a friend and they began a relationship. She moved in with him in October 1999 and they established a de-facto relationship;
c)Ms L was an unlawful non-citizen in Australia who was located in January 2000 and detained at Villawood Immigration Detention Centre. The applicant paid a bond for her release and sent her home on 27 January 2000, claiming he hoped he could bring her back “after the grant of his skilled visa application”;
d)he continued to contact and financially support Ms L and in March 2000, she informed him that she was pregnant with his child. Their daughter was born in October 2000;
e)he informed his mother about his relationship. She forbade him from returning to Bangladesh with Ms L. Knowledge of his de-facto relationship with a Christian woman and of the child of the union is now “hot gossip” in the applicant’s local area;
f)in 2002 he claimed his mother was served a fatwa notice by the local mosque to disown him as he was declared to have betrayed Islam. His whole family was ostracised from society until his mother agreed to disown him;
g)he learnt through letters and phone calls from friends and family that a verdict was declared that he would be seriously punished if he brought his daughter and de-facto wife to Bangladesh. He also claimed that the Muslim fanatics would treat him worse than anyone else;
h)he no longer wished to pursue his claims relating to his political activities in Bangladesh; and
i)he had had no contact with his family since about 2003.
At the hearing on 7 June 2007 before the Tribunal as thirdly constituted, the applicant made the following additional claims:
a)he would not be accepted by society because Bangladesh is a Muslim country and there is no place for a de-facto relationship; and
b)he belonged to a particular social group and would face persecution due to his religion.
The Tribunal questioned the applicant at that hearing about his failure in the protection visa application to mention his claims relating to the de-facto relationship and the birth of his child. It discussed country information relating to mixed marriages in Bangladesh and invited him to provide further information. On 2 July 2007 the applicant provided a further submission to the Tribunal, claiming that:
a)in his application in September 2000, he was ill-advised by his former migration agent, who told him his new claim would not be considered by the Department and it would be wise for him to pursue his initial claim and not to raise new issues. Therefore he did not advert to his de-facto relationship and child;
b)he did not realise the consequences of the child’s birth and the inter-religious relationship until he confessed to his mother in 2000;
c)the country information referred to by the Tribunal was not relevant because he does not believe in marriage and the child was born from an unmarried relationship and is regarded as an illicit child in Bangladesh; and
d)he does not have faith in Islam, nor any intention of asking his de-facto partner and child to convert to Islam. They want to maintain the relationship permanently and do not believe in marriage.
Evidence before the current Tribunal
Section 424A letter
On 23 January 2008, the Tribunal wrote to the applicant pursuant to s.424A of the Act inviting his comments on information which the Tribunal considered might have been the reason or part of the reason for affirming the decision under review. It noted his immigration history, independent country information and the fact that the applicant did not refer to his relationship or his child in the primary application. The applicant responded on 15 February 2008, noting that:
a)he withdrew his application for a protection visa based on advice from his former agent, confident that he could remain in Australia on the basis of his skills;
b)although everything he had previously claimed about his political involvement in Bangladesh and the consequences of this involvement was true, he did not wish to pursue these claims because:
i)it was by then over 16 years since he fled Bangladesh;
ii)there have been many changes in government;
iii)he is no longer involved in Bangladeshi politics; and
iv)he no longer fears persecution for his political past;
c)
people in his area are aware of his relationship and his child born out of wedlock and he will be seriously harmed and his family face persecution if he were to return to his home. Further, due to their appearance it would be obvious everywhere they go that
Ms L and his child were racially different. Muslims in Bangladesh are generally extremely hostile to people who have rejected them and will see them as insulting Islam. Moreover, he cannot expect effective protection from the police or authorities; and
d)he failed to refer to his partner or child in his first visa application due to advice from his former migration agent who did not consider them relevant. Ms L had left Australia, they were not married, she was not an Australian resident or citizen and at the time his fear centred on political persecution.
The applicant included with his response a declaration from Mr and
Ms T outlining the nature of the relationship between him and Ms L, enclosing photographs and evidence of communication and a declaration from his former migration agent confirming that although the applicant had advised him of the relationship with Ms L and the birth of their child he, the agent, did not include these details in the protection visa application. The applicant also enclosed a letter purporting to be from the Imam of the Sefton Mosque, stating that:
a)Bangladeshis are very strict in their religion and a person who changes or does not follow religion cannot live in society in Bangladesh;
b)there is no proper system in Bangladesh to give a person effective protection; and
c)a person with an illegitimate child will always be harmed by people and there will be no choice except suicide.
On 15 February 2008 the Tribunal gave the applicant a further letter inviting his comments on independent country information the Tribunal considered relevant to his application. His response on 18 February 2008 reiterated his previous claims.
Tribunal hearing
On 20 February 2008 the applicant appeared before the Tribunal as fourthly constituted to present arguments and evidence. He made the following additional claims:
a)since January 2000 he has spoken to Ms L on the phone three to four times a week and he sends her about $350 to $400 every two months;
b)he had not considered living in the Philippines as he has been in Australia for many years and asked “what would he do there”. They are not married, he did not know if he could obtain a visa or stay there and he claimed he would have to return to Bangladesh;
c)when the Tribunal noted its concern that he had been in a relationship for close to ten years but had not made any effort to see his partner or child, the applicant gave various responses, including that:
i)he wanted to go to the Philippines but if he left Australia he could not return;
ii)he cannot live in the Philippines and he does not know if he would be allowed to stay there;
iii)he spoke to his partner about this, but had not contacted the Philippines embassy;
iv)he did not know if Ms L had made enquiries about coming to Australia, but that she could not apply for five years due to her detention while previously in Australia;
v)he had not made any enquiries about her coming here and he did not ask her to try to come to Australia; and
vi)they love each other and want to be together, but he cannot take them to Bangladesh;
d)if he does not get the protection visa he does not know what will happen, but if he does get it he will sponsor them;
e)he re-established contact with his mother at the end of 2007 and speaks to her as she is old;
f)he does not believe in marriage as there is no point because he is already in a relationship, has a child and wants more children and does not need to marry to do this. He claimed that if Ms L came to Australia they would think about getting married;
g)neither he nor Ms L have had any other relationship since she left Australia in 2000;
h)if he were to return to Bangladesh, people will recognise that he is not a practising Muslim because he will not go and pray;
i)his representative submitted further country information about the situation in Bangladesh and noted that inter-religious legislation provides that marriages are only possible if one of the parties declares they are not religious. If the applicant has to declare he is not a Muslim, he would be in a lot of trouble;
j)the applicant gave various responses as to when he became a non-practising Muslim, including that:
i)he stopped believing in Islam when he was in the madrasa studying the Koran. During his studies although he did not want to stay his family forced him;
ii)after he left the madrasa in 1989 he did not go to the mosque or continue his religious education;
iii)between 1989 and 1992 until he left for South Africa he said he went to the mosque on Fridays because of his religious family;
iv)after 1989 he attended the mosque three times a day every day because the Muslims were calling each other to prayer; and
v)he stopped completely in 1994;
vi)he did not practise after he went to South Africa in 1992; and
k)it took him more than three years to leave Bangladesh because he did not have the financial support and he left for South Africa because of the pressure from his parents and political pressure.
Witness evidence
The Tribunal took evidence from Ms L who claimed that:
a)their relationship started about nine years ago and they are in constant communication. The applicant provides her with money for her daughter’s schooling;
b)about two years ago she had made inquiries about coming to Australia through the points system but was told her points were not enough. She had not told the applicant about this because she did not think it necessary and he might become disappointed;
c)she had thought about coming to Australia but it is hard to get a tourist visa; and
d)if the applicant had to return to Bangladesh, the relationship will continue and she intends to go with him.
Response to issues of concern to the Tribunal
The Tribunal outlined its concerns to the applicant and invited his comments, noting that:
a)he and Ms L have been apart for eight years and appear to have made minimal, if any, attempts to be together. Further, they appear not to have made any inquiries as to the applicant travelling to the Philippines, Ms L coming to Australia or their travel to Bangladesh;
b)he gave confused evidence about the date he ceased to be a practising Muslim, including how often he went to the mosque before he left Bangladesh; and
c)it might be reasonable for the applicant to relocate within Bangladesh referring to country information provided by him.
In response, the applicant said that he does not want to take his family to Bangladesh because they will be harmed and he had been waiting for Ms L for nine years so they could have a better life. In response to internal relocation he said that no matter where he goes in Bangladesh, people will notice that his partner and child look different and if he does not attend a mosque and they will find out. Further, his representative noted that the applicant may not have understood the Tribunal’s question “when did you become a non-practising Muslim” and, he may have responded with respect to his family’s expectations and how when they perceived him to be a non-practising Muslim.
Further submissions and country information
On 25 February 2008 the Tribunal received a further submission from the applicant’s representative who submitted that:
a)the applicant’s partner and child are likely to be seriously harmed or killed if they live in Bangladesh with the applicant and, if they cannot live in Bangladesh, permanent separation of the family will be imposed; and
b)there is a real chance that the applicant’s transgressions, individually or cumulatively against Islam will result in persecution if he is forced to return to Bangladesh, even if his spouse and child to do not join him, notwithstanding internal relocation. The representative referred to country information about murders of and violence to people believed by militant Islamic organisations to be un-Islamic.
After receiving advice from the Department of Foreign Affairs and Trade (“DFAT”), which, in turn, referred to a United States State Department Report on Bangladesh, the Tribunal again wrote to the applicant on 9 April 2008, inviting his comments on information contained in that DFAT report. The applicant’s representative replied on 10 April 2008 noting that:
a)DFAT would not have found any documentation about violence in Bangladesh against atheists given the extreme rarity of atheists;
b)the US State Department confirms that the applicant, Ms L and their child face a level of persecution beyond social alienation;
c)the applicant cannot be characterised merely as a non-believer living in a de-facto relationship. He is an apostate, he has a mixed de-facto relationship with a Chinese-Filipino woman who is a Catholic and he is the father of an illegitimate child. These should be considered cumulatively in assessing the chance that they will be persecuted;
d)any non-adherence to the societal norms for Muslims will identify the applicant, Ms L and his child as not being proper Muslims; and
e)the DFAT and US State Department reports that there is some degree of acceptance of liberal norms by some sections of the population does not eliminate the real chance of persecution faced by the applicant and his family.
The Tribunal’s decision and reasons
After discussing the claims made by the applicant and the evidence before it, the Tribunal found that it was not satisfied that the applicant is a person to whom Australia has protection obligations under the United Nations Convention relating to the Status of Refugees 1951, amended by the Protocol relating to the Status of Refugees 1967 (“Convention”). The Tribunal’s decision was based on the following findings and reasons:
a)although it accepted that the applicant maintained, and continues to maintain, a relationship with Ms L, the Tribunal did not accept that the relationship is a spousal or de-facto relationship or a committed familial relationship of the nature claimed by the applicant, noting that:
i)his unfamiliarity with the steps undertaken by Ms L to seek residence in Australia led it to question the level of communication between the two;
ii)the evidence that he would not travel to the Philippines as he would be unable to return to Australia suggested to the Tribunal that his desire to remain in Australia is stronger than his desire to live with Ms L and her child;
iii)the applicant had not made inquiries about the requirements for Ms L and her child to obtain residence in Bangladesh as he claimed they would be harmed there. He later stated that Ms L did not want to live in Bangladesh and this evidence and the parties’ past conduct in being separated for significant periods of time suggested to the Tribunal that they do not have a strong commitment to live together and that their separation since 2000 was not caused solely by immigration or visa limitations; and
iv)the Tribunal considered that the applicant could have reasonably taken more steps to be reunited with Ms L and her child if they were committed to living together as a family, either by travelling to or making enquiries about travelling to the Philippines, or taking steps for Ms L and the child to travel to Australia. The Tribunal noted that the applicant appeared not to have undertaken any of these steps;
b)the Tribunal noted the applicant’s past conduct and found that Ms L and her child would not travel to Bangladesh because of the nature of their relationship with the applicant and not because of their claimed fear of persecution. It found that if the applicant were to return to Bangladesh, Ms L and the child would not accompany him and, at best, the parties might continue the present arrangement whereby the applicant provides financial support to them and they communicate;
c)in light of this, while the Tribunal accepted that harm to the family might constitute serious harm to the applicant, it rejected the claim that he, Ms L and the child would suffer harm in Bangladesh because it rejected the claim that they would be residing in Bangladesh;
d)the Tribunal did not accept that, if the applicant were to return to Bangladesh alone, separation from Ms L and her child would amount to persecution of the applicant as his circumstances would not be substantially different from the present or those obtaining since 2000 when he and Ms L became separated. Further, the Tribunal found that the applicant’s failure to take any active steps to reunite with Ms L indicates that his desire to be with Ms L and the child does not appear to override his preference to remain in Australia. The Tribunal concluded that any future separation in these circumstances would not constitute serious harm;
e)the Tribunal found that if the applicant were to return to Bangladesh, it would be reasonable for him to relocate, noting that:
i)he has had limited contact with his friends and family in Bangladesh for a lengthy period of time since about 2000 or 2003 and therefore his de-facto relationship and his child from that relationship would not be widely known; at most it would only be known in his local area;
ii)any harm he fears from such knowledge would be localised and the Tribunal found it could be avoided if he were to live away from his local area;
iii)he has demonstrated his ability to live independently and establish himself in Australia and in South Africa prior to that; and
iv)country information suggests that there are no impediments to relocation in Bangladesh;
f)the Tribunal considered that country information indicated that in cities such as Dhaka more liberal norms apply and while the applicant may face ostracism as a result of his relationship with Ms L, there is no suggestion of more serious harm. It did not consider ostracism to constitute “serious harm” for the purposes of s.91R(1)(b) and, in light of this, it found there is no real chance that the applicant will be persecuted because of his de-facto relationship with Ms L or from having a child from such a relationship; and
g)although the applicant gave confused oral evidence about his involvement with Islam regarding which the Tribunal had some concern, it acknowledged that on the evidence he may be perceived as having moved away from the strict doctrines of Islam to be a non-practising Muslim, an atheist or an apostate and as having foregone the cultural norms of his country. It also considered that religion is important in Bangladeshi society and that some country information suggests the applicant may encounter hostility or harassment as a non-practising Muslim or from being perceived as one. Notwithstanding this, the Tribunal considered country information provided by the applicant as well as other independent country information and made observations including that:
i)the Home Office Border and Immigration Agency on Bangladesh report of 31 August 2007 confirms that the Constitution of Bangladesh provides for the right to profess, practise or propagate one’s chosen religion, that the government supports freedom of religion and that the generally amicable relationships among religious groups in society contributed to religious freedom;
ii)information provided in the DFAT report states that although the applicant may face cultural alienation, there was no evidence of threats against those who no longer practise their religion. The Tribunal rejected the applicant’s argument that this absence of evidence was due to the scarcity of atheists in Bangladesh;
iii)in its view, cultural alienation does not constitute “serious harm” for the purposes of s.91R(1)(b); and
iv)the DFAT report suggests and the Tribunal accepted that liberal norms and values tend to be accepted by the younger generation, especially in Dhaka or other major cities.
In light of the entirety of the country information before it and the applicant’s submissions on the issue, the Tribunal found that there is no real chance the applicant will be persecuted because of his religious or cultural conduct if he were to move away from his local area and relocate to a larger city.
Proceedings in this Court
The grounds of the amended application filed at the hearing by leave were pleaded as follows:
(1)The Tribunal made a jurisdictional error in taking into account the applicant’s failure to abandon his claim for protection.
(2)The Tribunal denied the applicant natural justice and procedural fairness in that the applicant was not given a proper opportunity to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(3)The Tribunal denied the applicant natural justice and procedural fairness pursuant to section 424A of the Migration Act 1958.
(4)The Tribunal denied the applicant natural justice and procedural fairness in that the Tribunal misled the applicant.
(5)The Tribunal relied on assumptions without evidence and irrelevant considerations and ignored relevant considerations and relevant evidence.
(6)The Tribunal ignored relevant evidence that the applicant and his spouse and child had a very close loving relationship and intended to live together as soon as they were able to.
(7)The Tribunal misconstrued and misapplied the law with regard to persecution (s.91R of the Migration Act).
(8) The Tribunal ignored relevant evidence that the applicant would be persecuted for becoming a non-practising Muslim and an apostate.
The Tribunal erred by taking into account the applicant’s failure to abandon his claim for protection
The applicant relevantly particularised this allegation as follows:
…
(iv)The Minister lacks jurisdiction to use the satisfaction of one criterion to ground the non-satisfaction of another criterion. The Tribunal cannot use the satisfaction of one criterion (that the applicant is in Australia) to ground non-satisfaction with another criterion (that the applicant have a well-founded fear of persecution).
(v)The Tribunal cannot (as in effect it did) require that the applicant abandon his refugee claim for his failure to leave Australia and go to the Philippines not to be used adversely against him.
As to the particulars quoted above, it can be said that the Tribunal did not use the applicant’s presence in Australia in any part of its reasoning when it concluded that it was not satisfied that the applicant had a well-founded fear of persecution for a Convention reason. As the summary of the Tribunal’s conclusion set out above discloses, the Tribunal relevantly found that:
a)were the applicant to travel to Bangladesh and remain separated from Ms L and their child, his continued separation from them would not amount to persecution because his circumstances would not be substantially different to his current circumstances or his circumstances since 2000 when he and Ms L became separated;
b)were the applicant to return to Bangladesh it would be reasonable for him to relocate from his home locality to a major city such as Dhaka; and
c)in any event, ostracism, which the applicant might face in Bangladesh as a result of his relationship with Ms L and cultural alienation which he might endure as a result of his loss of faith, did not constitute “serious harm” for the purposes of s.91R(1)(b) of the Act.
Although the Tribunal did note the applicant’s disinclination to travel to the Philippines to be reunited with Ms L and to meet his child for the first time, that was not a matter relevant to the applicant’s own alleged fear of persecution upon a return to Bangladesh. More generally, the applicant’s presence in Australia was irrelevant to the factual conclusions reached by the Tribunal upon which it based its conclusion that it was not satisfied that the applicant had a well-founded fear of persecution in Bangladesh for a Convention reason.
The applicant has endeavoured to conflate two distinct issues; the first being his fears for himself if he were to return to Bangladesh and the second being his claimed desire to be reunited with his alleged family and what might be the result of that were they to be in Bangladesh together. Although the applicant has sought to develop his arguments by focusing on the family unification issue as being the defining one for his application for a protection visa, in reality it is a distraction from the real issue of his own return to Bangladesh and whether he has a well founded fear of persecution were he to return.
That being so, there was no error in the Tribunal noticing that his disinclination to take practical steps to join his claimed family cast doubt on his alleged wish to be with them because the reunification issue was not a matter of central importance to the real claim which related to him alone.
For these reasons, the first ground pleaded in the amended application is not made out.
The applicant was not given a proper opportunity to give evidence and present arguments (breach of s.425 of the Act)
The applicant particularised this ground as follows:
(i)The applicant’s lack of “familiarity with the steps taken by Ms. [L] (his de facto spouse) to seek residence in Australia”.
(ii) That the applicant’s “desire to remain in Australia was stronger than his desire to live with Ms. [L] and her child”.
Although the particulars characterise the two matters set out in his particulars as determinative issues, as conceded by the applicant’s counsel during submissions, the real issue in respect of which the Tribunal had an obligation under s.425 of the Act to invite the applicant to give evidence and make submissions, was the genuineness of his familial relationship with Ms L and their child.
A review of the transcript of the hearing before the Tribunal discloses that the nature of the relationship was a matter of considerable concern to the Tribunal member who asked a number of questions about it, clearly with the intention of testing its genuineness as a familial relationship. As the following exchange at the Tribunal hearing demonstrates, the issue was squarely put to the applicant who clearly understood it:
[TRIBUNAL]: You see what my concern is. You haven’t seen her for nine, eight years. Yet she makes no inquiries about coming here, you make no inquiries about going there. It seems to me that you don’t really have the intention of living together, given that you have been living apart for eight years, even though you talk to each other and send photographs to each other and you support her financially. But how can I be satisfied given that that if you do have to return to Bangladesh that she will come with you?
[APPLICANT]: No, we love each other. We are still waiting more than nine years to be together good family, live together good life, still waiting.
[TRIBUNAL]: But you haven’t taken any steps whatsoever to actually be together in the past eight years. Did you want to say anything about that. (transcript, p.13)
In a similar vein, at pp.36-37 of the transcript, the Tribunal member said:
[TRIBUNAL]: Well, it seems to me that being apart from a child for almost eight years and you haven’t made any inquiries about going to the Philippines, she – you think she hasn’t made any inquiries about coming to Australia, although she appears to have done that. You haven’t made any inquiries about them going to Bangladesh. I don’t know if you have to return to Bangladesh if they will be coming with you, given your past relationship and what you have done about being together in the future.
As to the specific matters raised by the particulars, the applicant’s knowledge of the steps taken by Ms L to seek residence in Australia were the subject of specific questions which appear at p.12 of the Tribunal transcript. His answers were later contradicted by Ms L’s oral evidence. The applicant says that the Tribunal should have alerted him to the potential significance of his ignorance of the inquiries which Ms L said she had made concerning coming to Australia. However, it was not the fact of his ignorance of those steps which was an issue determinative of his application. To the extent it was material at all to the Tribunal’s primary concern regarding the applicant’s alleged personal fear of persecution, the relevant issue was the genuineness of his relationship with Ms L not his knowledge of her migration inquiries. Consequently, the Tribunal had no obligation under s.425 to give the applicant any advice in relation to this aspect of the evidence.
The same considerations apply in relation to the second matter particularised. In that connection the following passage from pp.10-11 of the transcript demonstrates that the issue was raised with the applicant:
[TRIBUNAL]: You see what my problem is. You have been in the relationship for almost 10 years.
[APPLICANT]: Nine years.
[TRIBUNAL]: Nine years. Yet you have not seen your partner or child – you have not seen your child at all and you have not seen you partner for more than seven years.
[APPLICANT]: Yes.
[TRIBUNAL]: It seems to me that you haven’t made much effort to be with them when you had the opportunity and that is something that concerns me.
[APPLICANT]: Yes but I want to got there but if I am go there, to the Philippines, I cannot come back here to Australia.
[TRIBUNAL]: But why not live in the Philippines with your partner and your child?
[APPLICANT]: I don’t want to live in Philippine.
Further, the transcript also discloses that at the conclusion of the hearing the applicant was asked whether there was anything else which he wished to say about any of the matters the Tribunal member had raised with him and matters which had not been raised. He said that he had nothing further to add and his adviser, who was present at the Tribunal hearing, although he raised other matters, did not seek to canvass the issues particularised by the applicant in this ground of the amended application.
For these reasons, I do not conclude that the Tribunal breached s.425 of the Act.
The Tribunal breached s.424A of the Act
This allegation is particularised as follows:
(i)The applicant’s spouse gave the Tribunal evidence that she had taken, unsuccessfully, steps to seek residence in Australia. She told the Tribunal that she had not told the applicant about these steps and explained why she had not told him.
(ii)This was information that was, at least, part of the reason for affirming the decision under review.
(iii)The Tribunal did not exercise its discretion under section 424AA.
(iv)The Tribunal did not act in accordance with section 424A.
As submitted by the Minister, the information conveyed by Ms L at the hearing was not part of the reason for decision, in the sense understood by s.424A, because that information did not undermine the applicant’s claim to be a refugee: SZBYR v Minister for Immigration & Citizenship (2007) 81 ALJR 1190 at 1195-1196 [17]. Moreover, this evidence was called at the request of the applicant and thus is taken to have been given by him for the purposes of his application for review. As a result, it falls within the exception found in s.424A(3)(b) which means that it does not have to be notified to the applicant pursuant to s.424A(1): SZIAT v Minister for Immigration & Citizenship [2008] FCA 766 at [39].
For these reasons, the third ground pleaded in the amended application is not made out.
The Tribunal misled the applicant
The fourth ground alleged in the amended application is particularised as follows:
The Tribunal misled the applicant into believing that the Tribunal accepted that “the applicant and Ms. [L] are in a spousal relationship or de facto relationship or that they are in a familial relationship of a kind in which the parties are committed to living together as a family” when in fact – as stated in its Findings and Reasons – it did not accept this.
Because the Tribunal misled the applicant about its acceptance of the genuineness of the de facto relationship, the applicant was deprived of the opportunity to answer, by further evidence and argument:-
(i)adverse information in regard to the applicant not travelling to the Philippines or his spouse and daughter not coming to Australia.
(ii)adverse inferences in regard to travel by the applicant’s spouse and child to Bangladesh and to correct the relevant misunderstandings
Although the Tribunal indicated to the applicant at its hearing that it accepted that he sent Ms L money and had communications with her, as already noted, the transcript of the Tribunal hearing can leave one in no doubt that the genuineness of the relationship was questioned by the Tribunal. The applicant has not pointed to any passage in the transcript from which could reasonably be inferred that the Tribunal was stating or implying that it accepted that the applicant and Ms L were in a spousal or de-facto relationship or were committed to living together as a family other than the following passage at pp.41-42 of the transcript at the very end of the hearing:
[TRIBUNAL]: I have his declaration and I do accept that there is communication with your partner. I do accept that you sent her money. I accept all that. As I said, that is probably the reason I don’t need to speak to him. I accept whatever is in the declaration. My concern really is what will happen in the future in terms of your relationship other than what has happened in terms of your contact with her. So I accept that. I will probably accept his evidence, so I don’t think I need to speak to him.
In the statutory declaration of the witness, Mr T, that witness stated:
I know [applicant] and [Ms L] very well. I know [applicant] loves [Ms L] and is fully committed to a life together with her and their daughter. [Ms L] loves [applicant] and wants to join him as soon as she is able. Jasmine [the daughter] calls [applicant] “Papa”.
Significantly, the passage from the Tribunal transcript quoted above at [42] occurs after the applicant declined the Tribunal’s invitation to say anything more about the matters which had been raised by the Tribunal. At all times prior to the Tribunal inviting the applicant to say anything additional which he might want to say, it can have left him in no doubt that it needed to obtain adequate answers and needed to be satisfied of the genuineness of the relationship between the applicant and Ms L.
In his particulars of this allegation the applicant says that the fact that he was misled deprived him of the opportunity to provide additional information to the Tribunal. This assertion cannot be accepted. The applicant was put on notice that the genuineness of this family claim was in issue and yet he declined an express invitation to provide such additional information very shortly before the Tribunal made the comment quoted above at [42]. In these circumstances, I do not accept that the applicant was misled as he claims or that the fourth ground pleaded in the amended application demonstrates jurisdictional error on the part of the Tribunal.
The Tribunal relied on assumptions and irrelevant considerations and failed to take into account relevant considerations and evidence
The fifth allegation made in the amended application was particularised as follows:
(i)The Tribunal said that it was “of the view that if the applicant was in a committed relationship with Ms. [L], whether it be a de facto relationship or any other form of familial or de facto relationship, that he could have reasonably taken more steps to be reunited with Ms. [L] and her child, either by travelling to the Philippines, or at least making inquiries about travelling to the Philippines or taking steps for Ms. [L] and the child to travel to Australia” (emphasis added).
(ii)The Tribunal said that the applicant and his partner’s “past conduct in being separated for a significant period of time and making little, if any, effort to be reunited suggests to the Tribunal that the parties do not have a strong commitment to live together”.
(iii)In coming to these conclusions the Tribunal relied on assumptions for which there was no evidence and on irrelevant considerations, and ignoring relevant considerations and relevant evidence.
The applicant submits that the Tribunal assumed that it was reasonable for the applicant to travel to the Philippines or to make inquiries about travelling there when by doing so he would be abandoning his claim for protection in Australia with no guarantee that he would be able to stay in the Philippines. He further submitted that the Tribunal assumed that Ms L and their daughter could travel to Australia. However, these submissions exaggerate the force and effect of evidence which was before the Tribunal. It is clear that the Tribunal concluded that neither the applicant nor Ms L made any substantial inquiries, let alone significant efforts, to be reunited, even if only on a temporary basis.
Far from being based on an assumption, the Tribunal’s conclusion was based on the evidence which was before it. Its characterisation of the evidence given by the applicant and Ms L was one which was open to it and thus does not disclose error.
The Tribunal ignored relevant evidence
The sixth allegation pleaded in the amended application is particularised as follows:
(i)The applicant’s spouse, their child and third parties provided evidence that the applicant and his spouse were in a very close marital relationship and that the couple intended to live together with their daughter as a family.
(ii)These third parties also provided evidence of why their evidence should be accepted.
(iii)The Tribunal did not challenge this evidence in any way. The Tribunal did not provide any reasons why it did not accept this evidence.
(iv)It is open to the Court to find that the Tribunal, in reality, ignored the evidence.
This ground is no more than a challenge to the conclusions the Tribunal drew from the evidence before it and to its findings of fact. Such matters are solely within the province of the Tribunal and cannot be reviewed by this Court. The role of the Court is to declare and enforce the law which governs the Tribunal’s operations. The Tribunal’s function is, operating within the law, to determine the facts of the matter. If, operating within the law, the Tribunal arrives at an incorrect finding of fact, that is not a matter reviewable by the Court.
Additionally, the Tribunal is not obliged to have rebutting evidence or to make out a negative case against an applicant before it decides to affirm the delegate’s decision. Its task is to determine, on the evidence and arguments before it whether it is satisfied that an applicant meets the criteria for the grant of a protection visa: s.65 of the Act. The fact that the Tribunal may not have referred to particular aspects of the evidence when expressing its findings and conclusions does not indicate that the evidence in question was not considered or was ignored. Indeed, the Tribunal’s summary of the evidence which was before it demonstrates that it had turned its mind to that evidence. The Tribunal’s reasons merely demonstrate that the evidence the applicant refers to was not relied upon by the Tribunal when making findings on material questions of fact.
Consequently, the sixth ground pleaded in the amended application does not disclose jurisdictional error on the part of the Tribunal.
The Tribunal erred in its application of s.91R(1) of the Act
The seventh ground pleaded in the amended application was particularised as follows:
(i)The Tribunal stated that the Tribunal does “not accept that, in the applicant’s circumstances, separation from Ms. [L] and her child will amount to persecution. This is because if the applicant were to return to Bangladesh without them his circumstances would not be substantially different to his present circumstances or his circumstances since 2000 when he and Ms [L] became separated”.
(ii)Temporary separation with prospects of being legally able to be reunited in Australia with his spouse and child is substantially different to the situation where the applicant is forced to return to Bangladesh when his spouse and child cannot safely join him, in effect, resulting in a permanent separation.
In his submissions, the applicant said that he could not be expected to tolerate permanent separation from his spouse and child.
The first matter to note in relation to this ground is that pp.2-3 of the Tribunal’s decision record (CB 310-311) demonstrates that the Tribunal did understand the terms and substance of s.91R(1) of the Act. Further, on a factual level, the Tribunal’s conclusion concerning the nature of the relationship of the applicant and Ms L provided adequate foundation for its conclusion that a continued separation if the applicant were to return to Bangladesh would, in substance, be no different to the situation in which he currently tolerates from his residence in Australia. As the Tribunal said:
… the nature of the relationship between the applicant and Ms [L] is such that they do not have a strong commitment to live together. The Tribunal is of the view that any future separation does not, in the applicant’s circumstances, constitute serious harm. (CB 332)
Consequently, this ground does not disclose error on the Tribunal’s part.
The Tribunal ignored evidence that the applicant would be persecuted for being a non-practising Muslim and an apostate
The eighth ground pleaded in the amended application was particularised as follows:
(i)The applicant’s claim was based on him have changed his religious views, from having ceased being a practising Muslim and becoming an apostate and being perceived as such.
(ii)The Tribunal acknowledged that the applicant “may be perceived to be a non-practising Muslim, an atheist or an apostate. The applicant may also be perceived as having forgone the cultural norms of his country”.
(iii)The US State Department’s International Religious Freedom Report – a Report that the Tribunal’s own country information, the DFAT Report, clearly adopted – compels the view that people like the applicant who may be perceived as a non-practising Muslim, an atheist or an apostate face a real chance of persecution.
(iv)The Tribunal found that there is no real chance that atheists or non-believers will be persecuted.
(v)It is open to the Court to find that the Tribunal did not truly or properly consider the DFAT Report or all the other relevant evidence.
Again, this ground is a challenge to the Tribunal’s conclusions and findings of fact. As already noted, the Tribunal did set out in its decision record the evidence which was before it, including the claims made by the applicant concerning the treatment he would be likely to receive were he to return to Bangladesh and the treatment he fears he would receive based on his loss of faith. In particular, the challenge to the Tribunal’s consideration of the DFAT report cannot be accepted. It is to be noted that the Tribunal quoted the DFAT report at p.22 of its decision (CB 330) and went on, in the section of its decision record entitled “Findings and Reasons”, to discuss that report. The fact that the Tribunal did not draw from that report the conclusion, which the applicant submits was the correct conclusion does not support a finding of jurisdictional error. The Tribunal’s conclusions and findings of fact based, in part, on that report were solely a matter for it and cannot be reviewed by the Court in these proceedings.
Compliance with s.424
At the conclusion of his submissions, counsel for the Minster drew attention to the fact that the DFAT report had been generated at the request of the Tribunal. A copy of that request was annexed to the affidavit of Katherine Hooper affirmed 14 October 2008 which was read without objection. Very fairly, counsel for the Minister drew the Court’s attention to the possibility that the Tribunal’s request may have contravened the requirements of s.424 of the Act which provides:
424 Tribunal may seek additional information
(1) In conducting the review, the Tribunal may get any information that it considers relevant. However, if the Tribunal gets such information, the Tribunal must have regard to that information in making the decision on the review.
(2) Without limiting subsection (1), the Tribunal may invite a person to give additional information.
(3) The invitation must be given to the person:
(a) except where paragraph (b) applies—by one of the methods specified in section 441A; or
(b) if the person is in immigration detention—by a method prescribed for the purposes of giving documents to such a person.
Concerns about a potential breach of s.424 cannot be considered without also considering ss.424B and 441A, which are quoted below.
The following important facts emerge or can be deduced from a consideration of the email from the Tribunal to DFAT and DFAT’s response:
a)it was the Tribunal which made contact with DFAT by an email dated 4 March 2008. DFAT had not previously made contact with the Tribunal in connection with the applicant’s review;
b)it can be accepted that the email to DFAT was sent to an email address which the Tribunal had noted in its records at some earlier time;
c)DFAT replied in writing (CB 300) but it is unclear how that communication was sent to the Tribunal. All that is known is that it was received on 8 April 2008 (CB 301). It can be assumed that the DFAT reply was sent under cover of an email to the Tribunal officer who made the original request on 4 March 2008;
d)the Tribunal’s request did not specify in so many words the way in which DFAT was to respond to its query although it can also be accepted that a written report would be the norm in such circumstances; and
e)the Tribunal’s request included the further request that a response be received by 21 March 2008.
The information provided by DFAT was relied upon by the Tribunal in arriving at its conclusion.
Section 424B relevantly provides:
424B Requirements for written invitation etc.
(1) If a person is:
(a) invited under section 424 to give additional information; or
(b) invited under section 424A to comment on or respond to information;
the invitation is to specify the way in which the additional information, or the comments or the response, may be given, being the way the Tribunal considers is appropriate in the circumstances.
(2) If the invitation is to give additional information, or comments or a response, otherwise than at an interview, the information, or the comments or the response, are to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period. …
Although the Tribunal’s email did not specifically request a report in writing I conclude, given the nature of governmental communications and the fact that a written report was actually provided, that a request for a report in writing was implied by the Tribunal in its email and was so understood by DFAT. It should also be noted that a response time was identified in the Tribunal’s request. For these reasons, I conclude that no breach of s.424B is disclosed.
As Buchanan J held in SZLWQ v Minister for Immigration & Citizenship [2008] FCA 1406:
Section 424B(1) directs the RRT to specify the way in which the additional information is to be given. Clearly it was not to be at an interview. Equally clearly, Mr Kalin understood that he was being invited to respond in kind, by facsimile. The course of dealings between him and the senior researcher since the first enquiry by facsimile on 12 April 2002 had established that as their mutual, and agreed, method of communication. In my view the nomination of a facsimile number as a facility for the response was also a sufficient specification of a method of response. Accordingly, there was no breach of s.424B(1). (at [51])
As to s.424(3), that subsection requires that any request for information such as that made by the Tribunal of DFAT be made by one of the methods set out in s.441A which relevantly provides:
441A Methods by which Tribunal gives documents to a person other than the Secretary
(1) For the purposes of provisions of this Part or the regulations that:
(a)require or permit the Tribunal to give a document to a person (the recipient); and
(b) state that the Tribunal must do so by one of the methods specified in this section; the methods are as follows.
…
(5) Another method consists of a member, the Registrar or an officer of the Tribunal, transmitting the document by:
(a) fax; or
(b) e-mail; or
(c) other electronic means;
to the last fax number, e-mail address or other electronic address, as the case may be, provided to the Tribunal by the recipient in connection with the review.
It can be assumed, at least at the outset of the communications between the Tribunal and DFAT, that DFAT had not provided an email address to the Tribunal in connection with the review. I considered a similar situation in SZIAR v Minister for Immigration & Citizenship [2008] FMCA 1348 and adopt and repeat here the relevant reasoning from that judgment:
In circumstances where the intended recipient of the Tribunal’s request for information has never “in connection with the review” given it his or her contact details, the strict wording of s.441A(5) would appear to preclude the effectiveness of any written inquiry prior to the recipient confirming his or her address. However, a construction of the subsection requiring the Tribunal to first seek from its third party correspondent an address to which correspondence might be sent, in circumstances where it already has this information, appears impractical and improbable. One only has to consider the Tribunal’s regular requests for information from the Department of Foreign Affairs and Trade to recognise this.
It is apparent that s.441A was not drafted with such a circumstance in mind and appears to be concerned with applicants or their representatives rather than with third parties who are strangers to the review. The purpose of the section can be understood to seek, amongst other things, to ensure that communications reach their intended recipients or are at least taken to have done so. As far as applicants are concerned this is a matter of crucial significance. However, this is hardly so for third parties who are the mere recipients of requests for information. A precise and literal application of ss.424(3)(a) and 441A produces a result which is both improbable and inconvenient to the extent that s.441A requires the Tribunal’s initial correspondence to the third party to be sent to an address which that third party has provided in connection with the review but which, in reality, would not have been so provided at that stage. Such a situation indicates that, rather than preferring the literal meaning of s.441A, to the extent that it requires initial correspondence to a third party to be sent to an address which that party has not yet identified in connection with the review, a meaning which is reasonably open and more clearly conforms to the legislative intent should be preferred: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. (at [36]-[37])
It can be accepted that the Tribunal wrote to DFAT at an address which was already known to it and it can be inferred that DFAT replied to the Tribunal address appearing in its original requesting email. In my view, the initiating communication from the Tribunal should be taken to have satisfied the requirements of s.441A(5) in a purposive sense and DFAT’s subsequent communication to have met the subsection’s terms strictly. I therefore conclude that the Tribunal’s communications with DFAT met the requirements of s.441A and thus the requirements of s.424(3).
Consequently, I find that no breach of ss.424, 424B or 441A have been disclosed.
Conclusion
Jurisdictional error on the part of the Tribunal has not been demonstrated.
Consequently, the application will be dismissed.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Cameron FM
Associate:
Date: 3 November 2008
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