SZLSM & Anor v Minister for Immigration & Anor
[2008] FMCA 1172
•25 August 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZLSM & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2008] FMCA 1172 |
| MIGRATION – Review of Refugee Review Tribunal decision – whether applicants’ father was applicants’ representative at the Tribunal hearing – whether applicant’s father ceased being the applicants’ representative and became a witness when giving evidence – applicants’ father represented applicants as their common law guardian – applicants’ father’s evidence was the evidence of the applicants’ themselves – evidence fell within exception in s.424A(3)(b) – no failure to comply with s.424A – no failure to comply with s.424AA – Tribunal dealt with all of applicants’ claims – no jurisdictional error – application dismissed. |
| Migration Act 1958 (Cth), ss.424A, 427, 425, 424AA, 91S, 91R, 426, 280 Migration Amendment (Review Provisions) Act 2007 (Cth) |
| SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009 Re Woolley and Anor; Ex parte Applicants M276/2003(by their next friend GS) (2004) 225 CLR 1 SZIHI v Minister for Immigration and Citizenship [2007] FMCA 1332 SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036 SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384 SZMCD v Minister for Immigration & Anor [2008] FMCA 1039 NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) ALR 112 |
| Applicants: | SZLSM & SZLSN |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 3739 of 2007 |
| Judgment of: | Nicholls FM |
| Hearing date: | 5 June 2008 |
| Date of Last Submission: | 19 June 2008 |
| Delivered at: | Sydney |
| Delivered on: | 25 August 2008 |
REPRESENTATION
| Appearing for the Applicants: | Mr R C Turner |
| Solicitors for the Applicants: | Turner Coulson Immigration Lawyers |
| Appearing for the Respondents: | Mr R Baird |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The application made on 5 December 2007, and amended on 5 June 2008, is dismissed.
The applicants’ litigation guardian pay the first respondent’s costs set in the amount of $6,500.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 3739 of 2007
| SZLSM |
First Applicant
| SZLSN |
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
This is an application made under the Migration Act 1958 (Cth) (“the Act”) on 5 December 2007, and amended on 5 June 2008, which seeks review of the decision of the Refugee Review Tribunal (“the Tribunal”) signed on 31 October 2007, and handed down on 20 November 2007, which affirmed the decision of a delegate of the first respondent to refuse protection visas to the applicants.
Background
The first respondent has put a bundle of relevant documents before the Court (the Court Book – “CB”) from which the following background may be discerned.
The applicants are two young children who were born in Australia on 20 March 1999 and 8 May 2005 respectively (the children are brother and sister) (see CB 7) (“the first named” and “the second named” applicant before the Court). The applicants’ parents are both Bangladeshi nationals who arrived in Australia in February 1992. Both have unsuccessfully applied for protection visas in the past. While the applicants were born in Australia, given the provisions of the Australian Citizenship Act 2007 (Cth) they are not Australian citizens and appear, in any event, to be recognized as Bangladeshi nationals by the Bangladeshi authorities. (They have been included in their mother’s Bangladeshi passport – see CB 21, CB 35, CB 49 and CB 51, CB 208.3).
On 4 June 2007 an application was made for protection visas (see CB 1 to CB 120, containing the application form with (annexures), which was completed with the names and details of the two applicants). (The applicants were represented by a migration agent (see CB 1 and CB 16)). At relevant parts of this form the signature required of the applicants is clearly the signature of the applicants’ father: “For [the name of the applicants’ father]” (see CB 17, CB 31, and CB 45).
Also enclosed with the application was a document headed: “Statement by Applicant” (CB 52 to CB 53). It commences with: “I [the names of the applicants]”, and in the signature block just above their names appears: “FOR [the applicants’ father’s name]”. A statutory declaration made by the applicants’ father is also attached (CB 54 to CB 56).
The applicants also provided various documents, being international reports about Bangladesh.
In all, their claims for protection, as set out in the application and supporting documentation, were that their father, who arrived in Australia in 1992, was a political activist in Bangladesh, and that they feared harm if they were to be sent to Bangladesh, because of their father’s involvement in politics. Further, that given the: “law and order situation” in Bangladesh, the relevant authorities would be unable to provide “security”. Even further, the application claimed that the applicants could not speak, read or write Bengali, and that they were members of a “minority group”.
The application was refused on 14 August 2007 (see CB 123 to CB 132).
The Application for review
The application for review was lodged with the Tribunal on 5 September 2007 (CB 133 to CB 136). In that application, the applicants are noted as the first and second named applicants before the Court now. In the respective parts of the form that require the signature to the relevant applicant’s declaration appears, again, the following: “FOR [the applicants’ father’s name]” (CB 136).
Relevantly, in answer to the question: (“SECTION C”) “Do you have an adviser you authorise to act for you in relation to this application?”, the answer indicated is: “Yes”. The “Name of adviser” is stated as the applicants’ father’s name. In answer to the question: “Is your adviser … a registered migration agent … your spouse, child, parent, brother, sister … other”, the response was: “I am his Father”. This part of the application form was also signed by the applicants’ father.
The applicants were invited to appear at a hearing before the Tribunal (see CB 154 for the letter of invitation). The letter was dated 21 September 2007 and addressed, and sent, to the father as the authorised recipient for correspondence. By letter dated the same day, and sent again to the authorised recipient, the Tribunal wrote to the applicants inviting comment on information which it said that it considered, would be the reason, or part of the reason, for affirming the decision under review, subject to any comments that the applicants might make (CB 156 to CB 157).
A response was received by the Tribunal on 16 October 2007 (CB 159 to CB 160). The letter begins with:
“I am the recipient of this letter where I have requested to provide additional information
My father states …”
At the signature block, again, appears: “FOR [the applicants’ father’s name]”. The applicants also provided further country information to the Tribunal (see CB 161 to CB 166). The hearing was rescheduled (at the request of the applicants) (CB 167) and, ultimately, a “Response to Hearing Invitation” form was completed and returned to the Tribunal on 22 October 2007 (CB 169).
Relevantly, the form contains the name of the first named applicant (no mention is made of the second named applicant). Again, in the signature block, appears: “[The applicants’ father’s name]”.
The form indicates that the answer in relation to question “2a” (“If your application includes other family members does any family member want a separate hearing?”), is: “No”. In relation to question “2c” (“Do you want the Tribunal to take oral evidence from any witnesses?”) the answer is “No”. In response to question “2d” (“Do you want to bring someone else with you to the hearing?”), the answer is “Yes”. The names of the applicants’ parents are provided.
The Tribunal
The Tribunal’s decision record contains an account of what occurred at the hearing on 30 October 2007 (CB 199.3 to CB 206.6). In relation to how it treated the applicants’ father, I note the following (at CB 199.3):
“The Tribunal received oral evidence from the applicants’ father, [the name of the applicants’ father] who confirmed that he was giving evidence on behalf of the applicants. Their mother stated that she did not wish to give evidence to the Tribunal.”
Further (at CB 199.4):
“[The applicants’ father] confirmed that he was giving evidence on behalf of his children. He confirmed that his migration agent had completed the forms and the statements on his instructions and that he had read the material and was familiar with it.”
The applicants’ father is then reported to have given evidence as to why his children would face persecution if they were to go to Bangladesh (see subsequently CB 199.6 and following). I should just note that the Tribunal’s account of what occurred, in this regard (and, indeed, in regard to its account of the hearing in its entirety), is unchallenged by any evidence to the contrary brought by the applicants to this Court.
The Tribunal understood the claims advanced on behalf of the applicants to be that they would suffer persecution if they were to go to Bangladesh because they were the members of their father’s family, and that they would therefore be imputed with his political opinion, and, further, that they would suffer persecution due to their inability to settle in Bangladesh.
Relevantly the Tribunal’s analysis and reasoning contains the following (CB 208.5):
“The Tribunal notes that the father of the applicants has given evidence on behalf of the applicants and that he is appointed as the representative of the applicants. In these circumstances the Tribunal considers the oral evidence of the applicants’ father to be the evidence given by the applicants, for the purpose of Division 4 of Part 7 of the Act.”
The Tribunal found the applicants’ father not to be a “credible witness”. It gave reasons for reaching this conclusion (CB 208 to CB 210.3). To the extent, therefore, that the applicants’ claims depended on their father’s situation, and in accordance with s.91S of the Act, the Tribunal did not accept that the applicants had a well-founded fear of being persecuted for a Refugees Convention reason if they were to go to Bangladesh (CB 210.4).
Further, with reference to s.91R of the Act, the Tribunal, while accepting that the applicants were born in Australia, were not familiar with the language and culture of Bangladesh, and while further accepting that they may find it difficult to adapt to living in a new country, did not consider that any such difficulties would amount to “serious harm” within the meaning of s.91R(1).
In all, the Tribunal found that the applicants were not persons to whom Australia owed protection obligations, and therefore affirmed the decision under review.
Before the Court
At the first court date in this matter, I made an order (amongst others) that the applicants’ father be appointed as the applicants’ litigation guardian for the purposes of these proceedings.
At the hearing before the Court the applicants were represented by Mr R Turner, who confirmed that he had received his instructions from the applicants’ father. Mr R Baird appeared for the respondent.
Leave was granted at the hearing for the applicants to file an amended application in Court (no objection was taken, although I note that the issue of costs was alluded to).
The grounds of the amended application are as follows:
“1. The Tribunal failed to carry out its statutory duty
PARTICULARS
a.(i) The Tribunal considered the Applicants’ father to be their ‘representative’.
(ii) As the Applicants’ father was not appointed by them as their representative, he was not able to lawfully represent them before the Tribunal.
b. (i) The Applicants did not request any witnesses to give evidence.
(ii) The Tribunal took evidence from the Applicants’ father which must have been evidence called by the Tribunal.
(iii) It was not information given to the Tribunal by the Applicants. The Tribunal was, therefore, obliged to provide the Applicants with details of this adverse information and give them an opportunity to comment upon it.
2. The Tribunal failed to consider all integers of the Applicants’ claims.
PARTICULARS
(i) A clearly articulated claim of harm feared due to them being children born outside Bangladesh
(ii)The Tribunal failed to consider this element of the Applicants’ claims.”
During the course of submissions Mr Turner appeared to develop an argument that there had been a breach of s.424AA in the making of the Tribunal’s decision. This ground had not been pleaded in the amended application. Ultimately, I granted leave for a further amended application to be made, including a third particular to be added to ground one in the amended application in the following terms:
“c. The Tribunal failed to comply with section 424AA of the Migration Act 1958.
(i) The Tribunal relied upon ‘independent information’ and ‘previous claims.’
(ii) The Tribunal failed to provide adequate particulars of this information and explain why it was relevant and give the applicants an opportunity to comment upon it.”
The applicants’ father’s affidavit made on 28 May 2008 was also read into evidence before the Court. Relevantly, this was in the following terms:
“1. I am the father of the Applicants in these proceedings.
2. On 5 September 2007, I took my children’s Application for Review to the Refugee Review Tribunal to lodge
3. When I presented the form to the Tribunal, I had a conversation with a female person when to the best of my recollection the following conversation took place
She said: ‘Are you the children’s father’
I said: ‘Yes’
She said: ‘You will need to fill out Part C of the Application Form’
and indicated to me where that section was
I said: ‘O. K.’
and filled out the section of the form which she indicated
4. I did not request to be my children’s representative and only followed the instructions I was given by the Tribunal’s staff.
5. I did not hold out that I had any migration knowledge or that I was otherwise qualified to represent the children.”
What was accepted between the parties was, with reference to the application for review and the various parts of that form, that the applicants’ father had completed “Section C” of the form (CB 134) at the request, or direction, of the Tribunal employee, as set out in his affidavit. As to the remainder of the form, the parties agreed that this was not completed by the applicants’ father, but: “was in fact completed by somebody else.” It was conceded by the applicants that the signatures appearing in “Section F” of the form are the signatures written by the applicants’ father.
The Court has before it written submissions from both sides, and further written submissions in relation to the s.424AA issue raised during the course of the hearing.
Following submissions before the Court, I understood the applicants to be making three complaints about the Tribunal decision.
The first appeared to commence as a complaint about what was said to be the Tribunal’s action in appointing the applicants’ father as their representative, but eventually emerged as a complaint pursuant to s.424A of the Act. The second concerned what was said to be a breach of s.424AA. The third is a complaint that the Tribunal failed to consider an element of the applicants’ claims.
Ground One
In relation to ground one, Mr Turner submitted that when the applicants’ father took the application for review form to the Tribunal (on 5 September 2007 – see paragraph [2] of the applicants’ father’s affidavit) “Section C” was blank, and that the tick appearing at “Section D” was not, at that time, inserted on the form. He also submitted (without evidence, but the point was not opposed by the respondent) that “someone else” had completed the form, but that, nonetheless, the signatures appearing at “Section F”, corresponding to “Applicant 1” and “Applicant 2”, were the applicants’ father’s signatures.
When he presented at the Tribunal’s counter the applicants’ father was directed to become the “representative” of the two children. Mr Turner conceded that this alone would not amount to jurisdictional error, but pressed the point that, once having become the representative, there were limitations upon what the father could then do.
The importance of this to the applicants’ case, in Mr Turner’s submission, could be understood, initially, with reference to the: “Response to Hearing Invitation” form (CB 169). The applicants indicated that they did not wish the Tribunal to take oral evidence from any witnesses at the hearing (CB 197). Further, in setting out the applicants’ claims, the Tribunal made a reference to “the applicants’ representative”, and the Tribunal considered the applicants’ father to be their representative. Further, that in its decision record (at CB 199) the Tribunal stated that the applicants appeared before it to give evidence and present arguments and that the applicants’ father: “confirmed that he was giving evidence on behalf of his children.”
Mr Turner’s submission was that at that point the Tribunal correctly understood that the applicants’ father was giving evidence as a witness before it, that is, a witness before the Tribunal that was not called by the applicants. That, notwithstanding that he may have been a representative of the children, he was still, nonetheless, a witness called by the Tribunal.
The submission was that once the applicants’ father started giving evidence to the Tribunal in that capacity, he ceased being a representative of the children and became a witness. In that sense, therefore, the evidence that he gave is caught by s.424A (and also s.424AA – see below) and that, factually, the situation in the current case falls clearly within the situation in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009 (“SAAP”), where a family member of the applicant gave evidence to the Tribunal and the High Court found that the evidence was caught by s.424A(1).
Mr Turner relied on the distinction between being a representative and being a witness, and the inability to be both at once because of s.427(6) of the Act, which is in the following terms:
“(6) A person appearing before the Tribunal to give evidence is not entitled:
(a) to be represented before the Tribunal by any other person; or
(b) to examine or cross‑examine any other person appearing before the Tribunal to give evidence.”
In short, therefore, the complaint pursuant to s.424A is that the evidence given by the applicants’ father was not information given to the Tribunal by the applicants themselves, and that the Tribunal, therefore, was obliged by s.424A(1) to provide the applicants with details of this information, in writing, and to give them an opportunity to comment upon it.
As a preliminary, I should note two matters in relation to these submissions.
First, I do not agree with Mr Turner that the Tribunal’s reference (at CB 197) to “the applicants’ representative” (see at CB 197.8) is a reference to the applicants’ father. This part of the Tribunal’s decision record sits under the heading of: “Primary application for the protection visa”, and sets out the applicants’ claims made in the protection visa application, references to relevant documentation provided by them in connection with that application, and a submission made by their “representative”.
At the time of the making of the protection visa application, the applicants were represented by a registered migration agent and, plainly, the submission to which the Tribunal refers is the submission made by that agent (see CB 1 to CB 6). I do not agree that this was a reference to the applicants’ father as being their representative.
Second, Mr Turner’s submission in relation to section 427(6) is that when the father started giving evidence, he must have stopped being a “representative”, because (at best, as I understood it) if he were to be giving evidence for his children, then he must cease being their representative because a person appearing before the Tribunal to give evidence, that is a witness, cannot be represented.
I do not agree with the understanding, or application, of this section to the facts as put by Mr Turner.
Section 427 is concerned with particular powers of the Tribunal for the purposes of the review. Section 427(6) must be read in context of what precedes it. Section 427(3) is clearly concerned with the Tribunal’s powers to summon a person to appear before it to give evidence. The Tribunal cannot summon a person to give evidence unless the person is in Australia (s.427(4)). Section 427(5) is concerned with the relevant oath, or affirmation to be given to such a person. Section 427(6) provides that a person appearing before the Tribunal to give evidence is not entitled to be represented before the Tribunal by any other person. In context, this is plainly to be read as referring to the person summoned by the Tribunal to give evidence.
The applicants’ argument before the Court is that the father was not called by them to give evidence, but was summoned by the Tribunal for that purpose. The lack of entitlement to representation, in context, clearly refers to such a person giving evidence before the Tribunal. On the current facts, however, this would mean that the applicants’ father was not entitled to be represented before the Tribunal. That this section does not apply to an “applicant”, or their representative, can clearly be seen with the reference at s.427(6) to “a person”. This is to be distinguished from the language used in s.425, which creates the obligation for the Tribunal to “invite the applicant to appear” before it. This is not a “summons” as anticipated by s.427. I do not see that, in the circumstances of this case, s.427(6) can assist in the applicants’ argument in the way as put by Mr Turner, that is, that the applicants’ father was present as a “third party” summoned by the Tribunal.
In any event, the respondent submits in reply that whatever may have been said to have occurred at the time when the applicants’ father presented the review application form at the Tribunal’s offices for the purposes of lodging it with the Tribunal, he signed and lodged the form on behalf of his children in his capacity as their common law guardian.
In this regard, see Re Woolley and Anor; Ex parte Applicants M276/2003(by their next friend GS) (2004) 225 CLR 1 at [103] per McHugh J (“Re Woolley”):
“Parents in their capacityas guardians of an infant child have the power under the common law to make decisions on behalf of the child, provided that the child does not have the competence to make the decision. Thus, where a child lacks capacity, the ordinary rules of the common law authorise the parent or guardian of the child to act on the child’s behalf. Parental authority diminishes as the child’s legal competence emerges. The parent's authority is at an end when the child has sufficient intellectual and emotional maturity to make an informed choice.”
[Footnotes omitted]
Also in Re Woolley at [153] per Gummow J:
“These submissions involve a gloss on the true state of the applicants’ position and should be rejected. If a child lacks capacity to request removal under s 198(1), the ordinary rules of common law would authorise the parent or guardian of the child to make such a request on the child’s behalf. While it is true that the child cannot, as a matter of personal choice, request removal, the discretion or power to request removal still exists and is vested in the parent or guardian. The so-called ‘fourth wall’ of the child’s detention is controlled by the decision of the parent or guardian.”
[Footnotes omitted]
While Re Woolley was concerned with s.189 of the Act, it is directly applicable to the circumstances before the Court in the current case in terms of the applicants’ father acting as their guardian with the power to take action and make decisions on their behalf before the Tribuanl.
It must be said that the applicants’ submissions in this regard seek to set up a “fiction”. That is, that the applicants’ father was in some sense removed from them, and that he was acting as some sort of independent third party. The facts before the Court clearly show otherwise. There was no evidence before the Court that either of the applicants (remembering that they were aged eight and two respectively at the time of the making of the application for review) had any competence whatsoever, or level of understanding, to be able to have acted in their own capacity, or on their own behalf, in either making the application for review, or even for that matter, in having made the previous application for a protection visa.
I do not agree that the Tribunal (by the actions of the Tribunal officer on 5 September 2007 at the Tribunal’s counter) appointed the applicants’ father as their representative. The applicants’ father did this himself when he signed the application for review form and took it to the Tribunal to lodge.
I cannot accept that the applicants’ father attended at the Tribunal offices at that time as some disinterested third-party, or even that he acted as a “representative”, in the same way as, for example, a migration agent may have acted in representing an applicant before the Tribunal.
As the Minister submits, the applicants’ father acted, in short, as their father. That is, in his capacity as their common law guardian, and was in that sense their “representative”. He was responsible for the entirety of the conduct of the review before the Tribunal. This, in one sense, can be distinguished with what occurred in the pursuit of the protection visa application where, clearly, the applicants were represented by a registered migration agent during the conduct of that process. (Although, even there, the conduct of the applicants’ father in signing documents in his own name – “For [the applicants’ father’s name]” in relevant parts of the documentation that called for the applicants themselves to sign, shows that, even then, he was acting in his capacity as their common law guardian, and plainly made decisions on their behalf.) There is nothing before the Court to show that either of the two children had any competence or capacity to make any decision relating to the application for review (nor, indeed, was any such matter contended before the Court).
In this regard, I also note that in the response to the Tribunal’s “s.424A letter” (see CB 159 to CB 160), while the letter is said to have been from the applicants (“I am the recipient of this letter where I have requested to provide additional information”), and while the letter contains at the signature block the names of the two applicants, it is clearly signed by the applicants’ father.
Even further, the: “Response to Hearing Invitation” form was also signed by the father. There was no evidence before the Court (and, again, it was not otherwise contended) that the applicants’ father did not sign the form, or did not fill the form out, or did not cause it to be so completed. When properly understood, therefore, in all the circumstances, when the “Response to Hearing Invitation” form indicated in answer to question “2c” (“Do you want the Tribunal to take oral evidence from any witnesses?”), the answer was “No”, this is because the applicants’ father (in a situation where the applicants themselves had no comprehension of what was occurring) clearly contemplated that no other third person was to give evidence. This must be viewed also in the context that on the day of the hearing the applicants’ father arrived at the Tribunal hearing (with the applicants’ mother who did not participate in any meaningful way) and confirmed that “he was giving evidence on behalf of” the applicants.
In all the circumstances, it is difficult, if not impossible, to see for what other realistic purpose the applicant father would have attended the hearing before the Tribunal. Clearly, in circumstances where he was responsible for his two children and responsible for the applicants’ conduct on their behalf in the review before the Tribunal, and they having received an invitation to the hearing, he arrived at the hearing for the purpose of giving evidence on behalf of his children, who were not competent or capable of doing so for themselves. Ultimately, he himself confirmed this to the Tribunal.
As already referred to above, I do not agree with Mr Turner’s submission in relation to s.427(6) as being in support of the contention that the applicants’ father, having been appointed as their representative by the Tribunal notwithstanding that, he ceased to be their representative when he started to give evidence. For the reasons already referred to above, I do not see s.427(6) as being capable of assisting that proposition.
Further, in this regard, I note the respondent’s reference to SZKDB & Anor v Minister for Immigration & Anor [2007] FMCA 1036 (“SZKDB”) (followed in SZIHI v Minister for Immigration and Citizenship [2007] FMCA 1332) In SZKDB, Smith FM dealt with a somewhat similar factual scenario, where the first applicant before the Court was the mother of the second applicant (her infant daughter). The mother had completed and signed the Tribunal application form on her daughter’s behalf. FM Smith found (at [29]) that the application in that case had been brought by the mother in two capacities, one being her personal capacity, as the visa applicant, who had been refused a visa, and also in her capacity as the parent of an infant, who had been refused a visa and sought by the parent on behalf of that infant.
While I note that in SZKDB, the mother of the infant daughter was also an applicant in her own right before the Tribunal, and that this can be distinguished from the present circumstances, where the applicants’ father was not an applicant before the Tribunal, nonetheless, what is analogous, and what can be drawn, relevant to the circumstances of the current case, is that in a situation involving an infant in an application (irrespective of whether the adult parent is an applicant in their own right in that application), and in circumstances where there is nothing before the Court (nor is it so contended) to show that the infant/s had any capacity, understanding, or knowledge such as to be able to act on their own behalf, and in circumstances where the applicants’ father has (at the very least) signed each of the relevant documents, including the application for review, at those parts of the relevant forms that require a signature by the applicants, to conclude that the applicants’ father, by his own actions, appointed himself as the applicants’ representative. It is, as the first respondent submits “manifestly absurd” to view the applicants’ father as anything other than (in one sense quite properly) the self-appointed representative of the applicants, who are clearly unable to act for themselves.
In all the circumstances, it would have been a nonsense for the Tribunal to have acted in a way consistent with the “fiction”, which the applicants’ submissions seek to assert now. That is, that the two infant applicants were somehow, despite their lack of capacity, knowledge, and competence, nonetheless capable of having made an application for review (let alone an application for the protection visa previously) and that somehow, their father had been directed, or instructed by them, as their representative, and appeared at the hearing as some third party (it was suggested in submissions like “any other expert” on the situation in Bangladesh).
Had the Tribunal seen the situation in the way as expressed in the applicants’ submissions now, then having invited the applicants themselves to the hearing, and having received no notice pursuant to s.426(2) that the applicants wished the Tribunal to take evidence from any other person, then it would have been open to the Tribunal to have determined the review without hearing anything from the applicants’ father. A course, which given the absence of anything else, and given the Tribunal’s preliminary view, that on what was before it, it was unable to make a decision favourable to the applicants, without hearing from them at a hearing, would have led to the rejection of the application. The Tribunal proceeded, in all the circumstances, not only in the most practical way, but in my view, the most appropriate manner. That being to treat the applicants’ father’s evidence as being evidence given by them, through him as their representative.
What should also be noted is, to the extent that the applicants’ written submissions (at paragraph [9]) make reference to the applicants’ father not being a registered migration agent, and that he did not profess to have any specific knowledge of Australia’s migration laws, and was not in a position, therefore, to represent the applicants in the proceedings before the Tribunal, the provisions of s.280(5A), of the Act, that a “close family member” is able to give immigration assistance, relevantly to the applicants, even though he is not a registered migration agent. As the applicants’ father, therefore, the fact that he was not a registered migration agent did not prevent him from acting in the way that he did in the prosecution of the application for review before the Tribunal.
In my view, therefore, in all these circumstances, it was correct for the Tribunal to have treated the father’s evidence as being the evidence of the infant applicants, and to have done so for the purposes of Division 4 Part 7 of the Act (CB 208.4).
Given that the applicants’ father’s evidence was the evidence of the applicants themselves, then to the extent that it contained information that may have been caught by s.424A(1), it falls within the exception contained in s.424A(3)(b). The Tribunal’s obligation pursuant to s.424A(1), therefore, is not enlivened.
In the alternative, before the Court, Mr Baird also pressed the submission that, in any event, the father’s evidence before the Tribunal could not be categorised as “information” for the purposes of s.424A(1), and to the extent that the Tribunal formed an adverse view of the father’s evidence (“The Tribunal found the applicants’ father not to be a credible witness” – CB 208.5) then such views are also not “information” for the purposes of s.424A(1). The first respondent relies on SZBYR v Minister for Immigration and Citizenship (2007) 235 ALR 609; [2007] HCA 26 (“SZBYR”) at [17] and [18] respectively in this regard.
I did not comprehend the submissions by the applicants to identify their complaint about the Tribunal’s alleged failure pursuant to s.424A(1) to identify “information” beyond generally the information taken by the Tribunal from the father at the hearing.
The applicants’ submissions, beyond a reference to SAAP v Minister for Immigration and Multicultural and Indigenous Affairs; [2005] HCA 24; (2005) 79 ALJR 1009 (“SAAP”), and that the circumstances of this case stand on “all fours” with the factual situation in SAAP, provide no further detail or assistance to the Court in this regard.
In SZBYR, the High Court made reference to the majority judgement in SAAP concerning the operation of s.424A (see SZBYR at [13]), but found that the propositions determined by the majority in SAAP did not determine the outcome of the case before the Court in SZBYR. I understood SZBYR to focus on the particular terms of s.424A(1) in circumstances where the appellants (the applicants) in that case argued that the Tribunal focused on “inconsistencies” between what they had put in their statutory declaration, given in relation to their protection visa application and oral evidence given before the Tribunal, and inconsistencies in the statutory declaration and the oral evidence. The applicants argued that such inconsistencies were “information” for the purposes of section 424A.
I agree with the respondent’s submissions that, in relying on [17] and [18] of SZBYR, the applicants’ argument would also not succeed before this Court.
First, with reference to SZBYR at [17], the applicants in the current case did not demonstrate that what the father told the Tribunal contained “arejection, denial or underminingof the” applicants’ “claims to be persons to whom Australia owed protection obligations. Indeed, if his evidence was to be believed, it would “one might have thought have been a relevant step towards rejecting, not affirming, the decision under review.”
The application for review was, in part (to a significant part), based on the claim that the two infant applicants would face persecution if they were to go to Bangladesh because they were members of their father’s family, would be imputed with his political opinion, and would be unable to avail themselves of the protection of the authorities in this regard.
What the applicants’ father told the Tribunal (see CB 199.6 – “The Tribunal asked [the applicants’ father] why he thought his children would face persecution if they returned to Bangladesh. He said that it was because of his political involvement.” See also CB 206.6) was given in support of that claim. I agree with the respondent’s submissions that if the Tribunal had believed what the applicants’ father had told it, this may have been a relevant step towards rejecting the delegate’s decision to refuse protection visas to them. Given what was said by the High Court in SZBYR at [17], what the applicants’ father told the Tribunal, in this regard, is therefore not information for the purposes of s.424A(1).
Further, the adverse view taken by the Tribunal of what he said (that is, its subjective appraisal of what he said) again, does not attract any obligation pursuant to s.424A, given what is set out in SZBYR at [18] and the reference there to VAF v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 206 ALR 471 (“VAF”)
In all, therefore, the applicants’ complaint, asserting a breach of s.424A, is not made out.
Ground One – Section 424AA
Further to the claim that the Tribunal breached its obligation pursuant to s.424A, the applicants also assert a breach of s.424AA.
Section 424AA became operational on 29 June 2007 (Migration Amendment (Review Provisions) Act 2007 (Cth)) and clearly applies to this matter, as the application for review was made in September 2007.
Section 424AA is in the following terms:
“Information and invitation given orally by Tribunal while applicant appearing
If an applicant is appearing before the Tribunal because of an invitation under section 425:
(a) the Tribunal may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review; and
(b) if the Tribunal does so--the Tribunal must:
(i) ensure, as far as is reasonably practicable, that the applicant understands why the information is relevant to the review, and the consequences of the information being relied on in affirming the decision that is under review; and
(ii) orally invite the applicant to comment on or respond to the information; and
(iii) advise the applicant that he or she may seek additional time to comment on or respond to the information; and
(iv) if the applicant seeks additional time to comment on or respond to the information--adjourn the review, if the Tribunal considers that the applicant reasonably needs additional time to comment on or respond to the information.”
In short, the applicants’ complaint is that the Tribunal relied on:
1.Certain “independent information” (at CB 201: “The Tribunal noted that independent information suggests that there is a strong link between the current government and JeI and it is in a much stronger position than the other parties”). This information should have been dealt with in accordance with the provisions of s.424AA.
2.It also relied on “previous claims” (at CB 204). This is explained in submissions as being: “The Tribunal pointed out that [the applicants’ father] said previously that he made plans to leave Bangladesh ...”
The applicants’ complaint, also, is that the Tribunal failed to provide adequate particulars of this information and explain why it was relevant and give the applicants an opportunity to comment upon it.
I understood Mr Turner to submit that s.424AA(a) provides a discretion to the Tribunal as to whether to orally give clear particulars of any information that it considers would be the reason, or part of the reason, for affirming the decision under review. But that once the Tribunal decides to embark on that course of action, then the matters as set out in s.424AA(b) “must” be met.
In oral submissions Mr Turner stated that because of the “different wording” between s.424A and s.424AA, if there is an obligation on the Tribunal to give information to an applicant, then that obligation pursuant to s.424AA, can be carried out orally at the hearing, thereby avoiding the need to give it in writing. But that once the Tribunal embarked on this course, then it had to meet the requirements set out at 424AA(b).
Mr Turner also explained that the adverse information that should have been given (given that the Tribunal embarked on this course) was: “the totality of what the father said”. In written submissions, this is further explained to be those matters referred to arising from CB 201 and CB 204. (See [78] above)
I cannot help but note a threshold difficulty with the applicants’ argument in this regard. The applicants submitted previously that the applicants’ father had been directed to be the applicants’ representative, but that once he started to give evidence before the Tribunal, he ceased being a representative, and was a witness. If that were the case (but see, in any event, above), the applicants would have some difficulty in relying on s.424AA. If the applicants’ father was not at the hearing in the capacity of applicants’ representative, but was there in some other capacity, that is, as a witness, then it is difficult to see how section 424AA can be engaged. Plainly, that section posits that: “if an applicant is appearing before the Tribunal” then the Tribunal: “may orally give to the applicant clear particulars of any information that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review.”
The obligations set out in s.424AA, which the applicants now say the Tribunal failed to fulfil, relate to ensuring, as far as “is reasonably practicable, that the applicant understands why the information is relevant to the review” … “orally invite the applicant to comment on or respond to the information” … “advise the applicant that he or she may seek additional time to comment on or respond to the information ...”
To the extent, therefore, that the complaint now is that the Tribunal did not deal with the applicants’ father in that way, if the applicants’ submissions and arguments were to be accepted in relation to the fathers’ status during the course of the hearing, that is, if he was not an “applicant”, but a “witness”, then the Tribunal had no obligations pursuant to section 424AA towards him if that were the case.
If, on the other hand, the argument is that the Tribunal by commencing to give orally, clear particulars of information to the father, then it was embarking on the course set out in s.424AA(a), and was, therefore, compelled to meet the requirements of section 424AA(b), then this would mean that by making this submission, the applicants inconsistently, and somewhat incongruously, concede that the father was really at the hearing, and during the hearing, in his capacity “of the applicant” (that is, as their representative) and that he continued to be there during the course of the hearing in that capacity
Whatever the “confusion” in the applicants’ various submissions, in my view, this complaint does not, in any event, succeed. To a large extent, for the reasons put forward in submissions by the first respondent.
In my view, the “information” of which the applicants say the Tribunal had commenced “oral disclosure” (that is, as referred to at CB 201 and CB 204) is not “information” for the purposes of s.424AA(1).
I agree with the respondents’ submissions that the term “information” has the same meaning in s.424AA as it does in s.424A. I agree with, and follow, what was said in SZLTC & Ors v Minister for Immigration & Anor [2008] FMCA 384 per Driver FM at [18] in this regard. I note that in SZBYR at [18] that for the purposes of s.424A (with reference to VAF v Minister for Immigration and Multicultural and Indigenous Affairs 206 ALR 471) information: “‘does not encompass the tribunal's subjective appraisals, thought processes or determinations ... nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc.’” Further: “However broadly ‘information’ be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence”.)
Further, I also agree with the first respondent that the phrase appearing in s.424A(1)(a): “… that the Tribunal considers would be the reason, or a part of the reason, for affirming the decision that is under review” also appears in identical terms in s.424AA(a) and must then be given the same meaning.
In this regard, in relation to s.424A, the High Court in SZBYR at [17] said:
“The statutory criterion does not, for example, turn on ‘the reasoning process of the Tribunal’, or ‘the Tribunal's published reasons’. The reason for affirming the decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place … The use of the future conditional tense (‘would be’) rather than the indicative strongly suggests that the operation of s 424A(1)(a) is to be determined in advance - and independently - of the Tribunal’s particular reasoning on the facts of the case … Those portions of the statutory declaration did not contain in their terms a rejection, denial or undermining of the appellants' claims to be persons to whom Australia owed protection obligations. Indeed, if their contents were believed, they would, one might have thought, have been a relevant step towards rejecting, not affirming, the decision under review.”
In relation to the independent information (CB 201.4) the respondent submits that the applicants do not address, or explain why, “the independent information” is “clearly information” for the purposes of s.424AA, nor as to why it forms the reason or part of the reason for affirming the decision under review.
Applying the reasoning in SZBYR at [17], as applying equally to s.424AA, the operation of this section is to be “determined in advance - and independently - of the Tribunal's particular reasoning on the facts of the case.” On what was further said in SZBYR at [17], I cannot see (nor did the applicants contend) that the independent information (that there is a strong link between the current government and JeI in Bangladesh, and it is in a much stronger position than the other parties) would be the reason or part of the reason for affirming the decision under review. It clearly did not deny or undermine the applicants’ claims to be persons to whom Australia owed protection obligations.
While the High Court said that the reason for affirming the decision under review (“strongly suggests”) that the operation of s.424A(1)(a) is to be determined in advance (parallel with s.424AA), and independently of the Tribunal’s particular reasons, it is not, in my view, wrong to seek confirmation of what would otherwise be indicated in the manner set out by the High Court.
In this regard, the Tribunal “noted” the independent information with the applicants’ father at the hearing. However, the reason that the Tribunal affirmed the decision under review was that the Tribunal found the applicants’ father not to be credible, and rejected his claims to have been politically active and involved with Jammat-e-Isam in 1987, and to have consequently been threatened and beaten prior to his departure from Bangladesh.
Given its finding also, that he had not been engaged in anything more than common political discourse in Australia, the Tribunal found that he had not, and would not, be brought to the attention of political activists or the Bangladeshi authorities, and that, therefore, the basis of the applicants’ claims to fear harm as they derived from the father’s political involvement, fell away. It can be confirmed therefore that independent information was not the reason, or part of the reason, for affirming the delegate’s decision.
But there is another reason also for rejecting the applicants’ complaint in relation to s.424AA, and the independent information. First, there was no obligation on the Tribunal to provide this independent country information to the applicants pursuant to s.424A(1) because the information clearly falls within the exception contained in section s.424A(3)(a), and s.424AA, therefore, is not engaged.
In SZMCD v Minister for Immigration & Anor [2008] FMCA 1039 Scarlett FM recently considered a situation similar to the one in the current case. His Honour noted two other cases which also considered, in part, the relationship between s.424AA and s.424A at [62]:
“In SZLTC [v Minister for Immigration and Citizenship [2008] FMCA 384], Driver FM said at [16]:
It appears from the terms of s.424AA that if the Tribunal elects to embark upon a course of oral disclosure at a hearing, there are resultant obligations as set out in s.424AA(b)(i)(ii)(iii) and (iv). It also appears that if the Tribunal embarks upon a course of disclosure under s.424AA it does not enjoy the protections in s.424A(3).
In SZLQD [v Minister for Immigration and Citizenship [2008] FCA 739], Marshall J said of s.424AA at [12]:
That section places no obligation on the Tribunal but enables it, if it so chooses, to orally give to an applicant any information which the Tribunal considers would be part of the reason for affirming the decision under review. It does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on. So much is apparent from that part of the explanatory memorandum accompanying the bill which introduced s.424AA where the following was said:
‘New section 424AA provides a new discretion for the RRT to orally give information and invite an applicant to comment on or respond to the information at the time that the applicant is appearing before the RRT in response to an invitation issued under section 425. This will complement the RRT’s existing obligation under section 424A, in that, if the RRT does not orally give information and seek comments or a response from an applicant under section 424AA, it must do so in writing, under section 424A. The corollary is that if the RRT does give clear particulars of the information and seek comments or a response from an applicant under section 424AA, it is not required to give the particulars under section 424A.’
His Honour followed what Marshall J. said about s.424AA (at [65]), that s.424AA: “does not compel the Tribunal to orally give an applicant any particulars of country information which it intends to rely on”, rather than what was said by Driver FM: “if the Tribunal embarks upon the course of disclosure under s.424AA it does not enjoy the protections in s.424A(3)”.
His Honour reasoned that what follows is that ss.424A and 424AA are complimentary and must be read together and that the purpose and operation of s.424AA becomes clear in that context (at [66]).
His Honour further reasoned that the reason that there is no equivalent to s.424A(3) in s.424AA, is that s.424AA does not provide an alternative procedure to that provided for in s.424A. It is “simply a way of enabling the Tribunal to bring s.424A(2A) into operation. Subsection 424A(2A) is an exception to s.424A(1), just as s.424A(3)”. (SZMCD at [69]).
I agree with the reasoning set out by his Honour at [66] to [69] of that case as to the relationship between s.424A and 424AA.
In the current case, the Tribunal plainly noted with the applicants’ father the “independent information” (the relevant particular being that there was a strong link between the current government and JeI, and that it was in a much stronger position that other parties) was clearly put to the applicants’ father and the Tribunal’s subsequent questioning (CB 201.6) was sufficient for the applicants’ father to comprehend and to understand why this point raised by the Tribunal may be relevant to the review. Further, he was plainly asked to comment on and respond, and he did so.
I cannot see that, in any event, there was any breach of s.424AA (a) or (b) when viewed in this way.
In relation to the issue of “previous claims” (as referred to at CB 204 – see above), the respondents submit that, contrary to the applicants’ assertion, that the Tribunal “relied upon” this “information”, the Tribunal’s findings and reasons demonstrate that the Tribunal did not do so and that, therefore, this is not “information” that formed the reason, or part of the reason, for the decision under review.
Any plain reading of the Tribunal’s decision record would confirm that the applicants’ father’s previous claims were not used as part of the reason for affirming the decision under review.
The fact that the Tribunal reported that it pointed this out to the applicants’ father during the course of the hearing does not mean that the Tribunal subsequently used this as part of its reasoning. In this regard, I note the respondent’s reference to SZBYR at [79] per Kirby J:
“Not everything that is said in the course of the reasons of a tribunal or a court, when analysed, constitutes ‘the reason, or a part of the reason’ for the resulting dispositive order. To find that ‘reason’ requires more than pointing to the discursive reasoning of the decision-maker. It requires analysis, a fact made clear by the use in s 424A of the conditional tense (‘would be’) - a formulation that necessitates a hypothetical construct”
[Footnotes omitted]
Further, and relevant particularly to the Tribunal having noted this matter at the hearing is SZBYR at [81] per Kirby J:
“Many reasons of courts and tribunals contain discussion of matters that are not part of this process of reasoning. Thus, they may include a more detailed account of the facts, as recounted by the witnesses, than is strictly necessary. They may contain a description of the submissions of the parties although ultimately some or most of these may be treated as superfluous, irrelevant or insignificant to the decision. They may refer to legislation and case law that is not, in the end, determinative. They may set out impressions of witnesses, although such impressions do not eventually control, or even influence, the decision.”
[Footnotes omitted]
In the current case, the Tribunal plainly did note with the applicants’ father the previous claims that he had made. The reason, however that the Tribunal rejected the applicants’ father’s evidence was that it found him not to be a credible witness (CB 208.5). Clearly, it was not the previous claims that the Tribunal used to form an adverse view as to the father’s lack of credibility, but his evidence given at the hearing. Relevantly, that: “he did not initially intend to remain in Australia but as the situation [in Bangladesh] deteriorated, he made the decision to apply for the visa.” (see CB 209.3).
That the applicants’ father had previously claimed that he had “made plans to leave Bangladesh” (the “information” relied on by the applicants now) was clearly not part of the Tribunal’s reasoning.
Even further, the Tribunal’s adverse view of the applicants’ father’s evidence in this regard is not “information” for the purposes of s.424A (see SZBYR at [18]). Given the reasoning already set out above in relation to “independent information” regarding s.424AA, complimenting s.424A, and, further, that what constitutes “information” for the purposes of s.424A, also constitutes “information” for the purposes of s.424AA, the Tribunal’s adverse views of the applicants’ father’s evidence is not “information” for the purposes of s.424AA, and that section is therefore not engaged in the circumstances as put forward by the applicants now.
For all these reasons, therefore, this part of ground one also does not succeed.
Ground Two
In ground two of the amended application, the applicants complain that the Tribunal failed to consider an element of their claims, namely, the: “clearly articulated claim of harm feared due to them being children born outside Bangladesh”.
In submissions, Mr Turner referred the Court to the statement (“Statement by Applicant”) set out at CB 52 to CB 53, lodged with the protection visa application. Mr Turner submitted that paragraphs [2], [4], [5] and [6] of that statement, in particular, clearly raised the claim to fear harm should they go to Bangladesh because their father was a political activist and they would suffer persecution (a claim which the Tribunal dealt with). However, Mr Turner also submitted that these paragraphs also raised the claim that the two children are Bangladeshi children, born outside of Bangladesh, who have no protection in Bangladesh, and that this claim was distinguished from the claim relating to them as children “of a political father”.
The submission was that this is particularly to be seen with reference to what is set out in paragraph [4]: “We are the minority group & also cannot speak, read or write Bengali even not familiar with their culture”. Further, with reference to paragraph [5] (“If we had to return to Bangladesh we would have to confront the same problem as currently the army and the security forces are deeply involved in mass arrests in Bangladesh … the authority are the most corrupted in Bangladesh”). The submission was that, with this part of their claims, the applicants were not saying that they would suffer because of their father, but that they would suffer the same sort of problems that their father suffered because there is no effective state protection in Bangladesh,
Mr Turner submitted that this claim is even clearer with reference to paragraph [6]: “Even we can seek for help from the authority but we cannot speak their language. It would be difficult for us to communicate. We have no future at all such an unfamiliar country where we never been.”
In NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 (per Black CJ, French and Selway JJ), the Full Court considered, amongst other things, an alleged failure to deal with a claim advanced by an applicant, both in terms of express and implied claims (at [35] to [63]). In reviewing relevant authorities the Court said (at [62]): “Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made.”
Earlier, the Court said (at [61]):
“...We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.”
Then further at [62] the reference to Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) ALR 112 at [1]:
“…Proceedings before the Tribunal are not adversarial; and issues are not defined by pleadings, or any analogous process. Even so, this Court has insisted that, on judicial review, a decision of the Tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.”
The respondent’s position in reply is that, consistent with what is set out in relevant authorities, the Tribunal dealt with all of the applicants’ claims as articulated, or as they can be said to arise clearly on the materials before it. In short, the claim now, that the Tribunal failed to deal with a clearly articulated claim of harm, due to them being children born outside Bangladesh, was never expressly raised, nor can it be said to arise from the circumstances that were in the material before the Tribunal. I agree.
The applicants’ claims made in the statement attached to the protection visa application clearly set out the basis of the claim as being: “Because of our father active involvement with politics we fear that we would be persecuted if we return to Bangladesh” (paragraph [2] at CB 52).
The subsequent reference to: “we are the minority group …” must be read in context of what precedes, and follows, it. Those words appear as the last sentence of paragraph [4] at CB 52. In my view, any plain reading of that paragraph, with reference again to what precedes it, reveals that the extent of the applicants’ feared harm was because of their father’s active political involvement in Bangladesh and that the authorities would not be able to provide them with security. When read in context, this is reinforced with:
“If we sent back to Bangladesh we would not be able to get any protection form (sic) the authority as our father previously suffer many forms of persecution because of his political involvement with Jammat-e- Islam.”
The sentence that follows (at CB 52.7 – paragraph [4], that is, the sentence beginning: “We are the minority group …”) needs to be seen as, and in my view plainly is, an expression of their concern (clearly an integer or element of their claim) that their inability to speak, read, or write Bengali, and their lack of familiarity with the culture, would prevent them from getting “any protection” from the relevant authorities. But again, it was to be understood as protection required in the context of their father’s political involvement. Paragraph [5] (at CB 52.8) continues in this same vein. That is, their difficulty in obtaining protection from the police and other authorities.
Paragraph [6] (at CB 52.9) reinforces the complaint that, notwithstanding the corruption of the police and the authorities in Bangladesh, even if they were moved as to seek help, they could not do so because they cannot speak the language, and they would have difficulties in communicating.
I did consider whether the last sentence in paragraph [6] (“We have taken the Australian culture & the fact is going back to Bangladesh would be difficult & hardship”) may be said to depart somewhat from the claim to fear harm only because of the father’s political involvement, and their difficulties in accessing, or inability to obtain, adequate protection.
I could not find in any of the other documents submitted by the applicants to the Tribunal any reference to them fearing harm because of their being children born outside of Bangladesh, neither as it could be said to arise from circumstances as put in any other document, let alone that it was a clearly articulated claim. (See, for example, the statutory declaration by the applicants’ father (CB 54 to CB 56), nor in their response to the Tribunal’s “s.424A” letter (see CB 159.2 and CB 160).
The only other possibly relevant reference is in the submission made by the applicants’ then migration agent in connection to the protection visa application (at CB 3):
“The both applicants were born in Australia. One is nearly 9 years old another one is 2 years old. If applicants forced to go back who is completely unfamiliar their country culture, language would be in extreme difficult situation to find protection. The applicant’s fear that their father involvement in politics would be a foreseeable, real and personal risk of torture if they returned to Bangladesh.”
However, in my view, this is consistent with, and no more than, what is set out in the statement at CB 52 to CB 53. It does not raise a claim, either expressly, or indeed, by implication, beyond what is set out in that statement. That is, it is a claim that the applicants feared harm because of their father’s political involvement, that they would be unable to access protection because of this, and that this difficulty is compounded by their inability to ask for such protection.
The applicants have not put any the evidence before the Court to challenge the Tribunal’s account of what was said to have occurred at the hearing. There is nothing in this account (which, it must be said, is extensive and detailed) to support the applicants’ claims, before this Court now, that there was a clearly articulated claim of harm because they were members of a particular social group, or even otherwise, that is, that they feared harm because they were children born outside of Bangladesh.
During submissions, Mr Baird, particularly referred the Court to the Tribunal’s record of what occurred at the hearing, and the occasions when the Tribunal specifically asked the applicants’ father why his children would be persecuted on going to Bangladesh. (See CB 199.6: “The Tribunal asked [the applicants’ father] why he thought his children would face persecution if they returned to Bangladesh. He said that it was because of his political involvement …” Further at CB 205.3: “The Tribunal asked [the applicants’ father] why his children, aged eight and four would be persecuted. He said that it is difficult to believe the situation in Bangladesh, how children are persecuted due to politics”).
In essence, the applicants’ father’s evidence to the Tribunal is summed up with what is reported to be his concluding evidence to the Tribunal (CB 206.6: “He is a real political worker. If he expresses his opinion, he will be in danger and his children will be in danger.”)
In my view, the Tribunal clearly understood the extent of the applicants’ claims in the material before it, both as expressly put, and as they can be said to arise on the materials before it. That is, “that they will suffer persecution because they are members of [the applicants’ father’s] family and because they will be imputed with his political opinion. They also claim that they will suffer persecution due to their inability to settle in Bangladesh.” (CB 208.3).
I cannot see that the material before the Court gives rise to any claim to fear harm simply because the applicants were children born outside Bangladesh, or because they were members of any particular social group (they are members of their father’s family – this was dealt with by the Tribunal), let alone that such a claim was clearly articulated.
The Tribunal dealt with the claims as put. First, that they feared harm because they were members of their father’s family and would be imputed with his political opinion. Second, that they would suffer persecution because of their inability to settle in Bangladesh. The Tribunal plainly dealt with the first (see CB 210.3 for its conclusion in this regard). It plainly dealt with the second (at CB 210.4):
“The applicants stated that they were born in Australia, they are not familiar with Bangladesh, its language and culture and that they will be unable to settle there. The Tribunal accepts that the children may find it difficult to adapt to the new country, however, the Tribunal does not consider that any difficulties with settlement in a new country would amount to ‘serious harm’, within the meaning of s 91(1), and that such harm would be for a Convention reason.”
In all, this ground does not succeed.
Conclusion
With the benefit of legal assistance the applicants have put forward a number of matters asserting jurisdictional error on the part of the Tribunal. For the reasons set out above, none of the grounds are made out. In the absence of any jurisdictional error being discerned from the applicants’ grounds, this application is dismissed.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Nicholls FM
Associate: C Darcy
Date: 25 August 2008
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