SZLWA v Minister for Immigration - [2008] FMCA 952

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZLWA v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 952

MIGRATION – RRT decision – Bangladeshi girl – claim that parents were stateless Bihari living in a refugee camp – Tribunal disbelieved claims – whether a finding unsupported by evidence – whether defect in s.424A letter – whether breach of s.91R(3) – no jurisdictional error found – application dismissed.

Migration Act 1958 (Cth), ss.48A, 91R, 424A, 441G

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 320
Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470
Re Woolley; Ex Parte Applicants M276/2003 (2004) 225 CLR 1
RRT & Anor; Ex Parte H (2001) 179 ALR 425
SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294
SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231
SFTB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 222
SZBEL v Minister for Immigration & Multicultural & Indigenous Affair (2006) 228 CLR 152
SZIIF v Minister for Immigration & Citizenship [2008] FCA 913
SZJGV v Ministerfor Immigration & Citizenship [2008] FCAFC 105
SZKCQv Minister for Immigration & Citizenship [2008] FCAFC 119

Applicant:

SZLWA

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 18 of 2008

Judgment of:

Smith FM

Hearing date:

30 June 2008

Delivered at:

Sydney

Delivered on:

30 June 2008

REPRESENTATION

Counsel for the Applicant:

Dr J Azzi

Counsel for the First Respondent:

Ms S Sirtes

Solicitors for the Respondents:

DLA Phillips Fox

ORDERS

The application is dismissed.
The operation of order 1 is stayed for 21 days.
Any application by the first respondent for a costs order against the applicant or her father must be made by application in a case and affidavits filed and served on or before 14 July 2008. Service on the applicant’s father may be effected by ordinary service on the applicant’s address for service.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 18 of 2008

SZLWA

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

The applicant is a girl now aged about 10, who arrived in Australia with her mother in September 2001, when she was aged 4 and a half, travelling on a false passport used by her mother. Her father had arrived from Bangladesh in September 1997, and he had made an unsuccessful protection visa application at that time. After the mother arrived, he was permitted to make a second protection visa application. The mother made a separate protection visa application with the daughter, the present applicant, appearing as secondary applicant. All of those applications were refused by delegates of the Minister, in decisions which were affirmed by the Refugee Review Tribunal. The Tribunal decisions were upheld on judicial review proceedings, all the way to the High Court.
On 17 May 2007, a protection visa application by the applicant herself was lodged by a registered migration agent. It was accepted by the Department of Immigration that she was not barred from doing this by s.48A of the Migration Act, because she had previously only been a secondary visa applicant.
Her protection visa application attached a statement signed by the applicant's father, setting out the reasons why it was claimed that she had a well founded fear of persecution if she returned to Bangladesh. It was claimed that she was a stateless person in Bangladesh because of her membership of the repatriate Biharee community. Country information showed that this community of people with Bihari ethnicity are living in Bangladesh in terrible circumstances in refugee camps, waiting in the hope of getting repatriation to Pakistan. Other people of Bihari ethnicity have accepted offers of Bangladeshi nationality, and do not suffer the same privations and discrimination.
The visa application statement suggested that the applicant and her parents had been living in a refugee camp of Biharis, until leaving for Australia. The statement claimed that in 1999, she and her mother had been abducted from the camp and detained by, or with the assistance of, Awami League activists and had been tortured, and that a complaint to the local police had not been accepted. The statement also claimed that on 5 October 2000:
The Bangladesh localities again attacked our camp and burnt down about 50 premises in the camp and burned to death about 10 of our community members including children, were my elder sister … was one of the victims. Since the death of my eldest sister my mother was senseless and unconscious for several months and became desperate to escape Bangladesh to reunify with my father in Australia.
Accompanying the protection visa application was country information generally about conditions in Bangladesh, together with an undated statement by the father, apparently prepared for one of his earlier protection visa applications. In that statement he described himself as a “professional cook” and stated that he was a “stateless Bihari refugee” who “because of my ethnic background, I did not get any job. There was discrimination everywhere. Finding no other alternatives, I became involved with some sorts of local business”.
He claimed to have become a “renowned Bihari spokesperson”, and to have been involved in Bihari repatriation campaigns. He claimed, in the course of this activity, to have incurred the oppression of “Awami League terrorists”. When organising a big protest in 1994, he claimed that “local police had filed a case against me in organising the riot against the state”. He claimed that “Police searched my supporters and me to arrest. Facing this false and baseless anti state allegation, I was forced to leave the area permanently and stay in different hidden places”. He claimed that police were still searching for him, and “the Awami terrorists were still searching me to kill”. He referred to a daughter being killed after he had come to Australia.
A covering submission from the migration agent in support of the applicant’s visa application, presented the applicant's fear of persecution as arising from her membership of a particular social group of Bihari people, and also from her father's involvement with a political party. It suggested that Bihari women, in particular those living in the refugee camps, were subject to risks of serious infringement of their human rights.
The application was refused by a delegate in a decision dated 15 June 2007. The delegate referred to the difficult situation of the Bihari stateless community in Bangladesh living in refugee camps, and that their condition had “further worsened last year when they lost their government-subsidised food aid, and many families lost their homes to tornado, fire and eviction”. However, the delegate concluded that the applicant would not suffer Convention based persecution as a result of events in Bangladesh. In particular, he relied upon a finding by the previous delegate that the mother was not a Bihari, and that there was no reason why she should face discrimination amounting to persecution should she return to Bangladesh, since she was not a Bihari living in a refugee camp. The delegate also followed the previous decision in relation to the father.
On appeal to the Tribunal, the applicant was initially represented by the same migration agent, but subsequently the applicant's father signed a ‘cancellation of authorised recipient’ notification on behalf of the applicant. File notes by the Tribunal noted that it treated the cancellation of the authorised recipient notification as effective, but that it could not treat the father as an authorised recipient, in the absence of a proper notification of a substitute under s.441G of the Migration Act. However, it noted that he was “RA's guardian”. Upon that view of his status, the Tribunal's subsequent letters, including those inviting comments under s.424A, were addressed directly addressed to the applicant, as was the notification of the final decision. No point is now taken on behalf of the applicant in relation to the form of this addressing of the Tribunal letters.
The applicant and her father, but not her mother, attended a hearing to which she was invited by the Tribunal on 13 September 2007. In the course of the hearing, certain matters were put to the applicant's father and to the applicant, and subsequent to the hearing a nine page invitation to comment on various points was sent to the applicant. This put to the applicant a variety of pieces of information which the Tribunal considered might be relevant to its deciding her refugee claims, particularly information taken from the files concerning the mother’s and father's previous protection visa applications, and other circumstances pertaining to their veracity.
The general theme of the letter was that each of these particulars of information might lead the Tribunal to believe that it was not true that the applicant and her parents were Biharis who had lived in a refugee camp before they came to Australia. This relevance of each piece of information was repeated throughout the letter. As I shall indicate, only one part of the letter is now the subject of the grounds of review before me. This relates to information about the education claimed to have been acquired by the applicant's mother in Bangladesh, and to country information concerning the availability of such an education to stateless Bihari refugees. A response to the letter was sent to the Tribunal signed by the applicant's father on her behalf, which addressed some but not all of the issues raised by the Tribunal's letter.
On 11 December 2007, the Tribunal handed down a decision affirming the delegate's decision. The Tribunal recited the claims of the applicant put forward in the protection visa application, including her statement and her father's statements. A brief summary of what was said at the hearing was included, and the Tribunal set out the whole of the correspondence under s.424A. It also referred to country information, including the following passage:
Most Bihari children do not attend school. One parent complained: "Scarcity of education is our main problem. Without education, the children won't be able to prosper." Sending children to school outside the camps is prohibitively expensive for most Biharis. Although some camps have schools, students' families must pay teacher salaries and buy all school materials, which most families cannot afford. Bangladesh only provides the schools with textbooks. One man USCR met said that none of his seven children, the eldest of whom is 18, had ever gone to school.( Hiram a Ruiz Fifty years in exile: the Biharis remain in Bangladesh, World Refugee Survey 1998 CX33958).
Current situation for Biharis
A case study on the stranded Pakistanis in 2004 noted that Camps are notorious for their cramped conditions, deplorable hygiene, shortage of electricity and lack of running water. For these unfortunate people basic education is either unavailable or unaffordable. A Refugee International Report 2004 states:
“The school in Saardar Bahardur camp closed this year from lack of funds. In Admagee, only six boys from an entire camp made it to secondary school. Teachers go unpaid, students must study in shifts. Children work after school for money by doing handicrafts. At home they live like animals. Their families cook, eat work and sleep in the same room”.
Most Biharis due to a lack of education and impoverished conditions do menial jobs which hardly pay enough to sustain them and their family. One young man said he makes 100 taka a day as a rickshaw driver. After he pays a 40 taka bicycle rental, he is left with only 60 taka (about $1) to feed his family. (A Case Study. On. Stranded Pakistanis: A Human Rights Perspective. Written by. Basil Nabi Malik. Danish Naeem. Mehvish Ismail Muneera…
obathelpers.org/downloads/presentation%20on%20stranded%20Pakistanis%20-%20LUMS.pdf accessed 21 August 2007).
The current situation of Biharis was highlighted in a report, in The News on 20 August 2007, which quoted the General Secretary of the Stranded Pakistanis Youth Rehabilitation Movement, Sahid Ali Babul, who stated that Biharis are “living in subhuman conditions with discrimination in every sector” and “deprived of jobs, food, shelter and even health care”. Julhas Alam of the Associated Press on 14 August 2007 noted that there were some two hundred and fifty Bihari refugees in Bangladesh in seventy government-run camps across the country and “they are not citizens and cannot vote or apply for government jobs” (‘Stranded Pakistanis want to vote in Bangladesh’ 2007, The News, 20 August detail.asp?Id=9423 – Accessed 21 August 2007 – Attachment 1 ; Alam, J. 2007, ‘Bangladesh’s refugees dream of Pakistan’, Savvy website, 14 August 102/bangladesh-s-refugees-dream-of-pakistan,168066.html – Accessed 20 August 2007 ).
The Tribunal also referred to country information concerning the situation of the Biharis who remained in refugee camps and had not taken Bangladeshi nationality; to the unavailability to such persons of Bangladeshi passports; and to the assimilation of other Biharis who had taken Bangladeshi nationality.
Under the heading ‘Findings and Reasons’ the Tribunal said that it did not accept that the applicant “is a Bihari who lived with her parents in the Mohammedpur Geneva refugee camp for the following reasons”. It then itemised a series of reasons for disbelieving the claims made on her behalf as to her situation and as to her parent’s claimed history in Bangladesh.
The Tribunal referred to the possession by the parents of Bangladeshi passports in their own names, other than the false passports they had used to travel to Australia. It considered that the possession of such passports indicated that they had accepted Bangladeshi citizenship, and found that it was not true that they were “Biharis or stranded Pakistanis who lived in a refugee camp before they came to Australia”.
The Tribunal found confirmation in that conclusion in the fact that the parents had renewed their Bangladeshi passports while in Australia. The Tribunal said that the independent information before the Tribunal indicated that the Bangladeshi government does not issue international travel documents to camp-based Biharis. It did not accept their claim to have obtained passports by giving a false address. It noted that there was evidence before the Tribunal that the applicant's father had, in many documents, presented a single address in Dakha as the family's address for many purposes.
The Tribunal also drew upon how the applicant's father had presented his own protection visa applications. It noted that in his first application in 1997, he had not claimed that he was a Bihari, but had stated that he was a Bangladeshi citizen at birth. It then referred to his evidence about his occupation in Bangladesh, and in Australia, in a passage which is the subject of the first ground of review. I shall extract this passage below. The Tribunal concluded that the father’s having an occupation as a cook in both countries was inconsistent with his claim that he was a Bihari living in a refugee camp.
The Tribunal formed a similar view about the evidence of the applicant's mother having a secondary education, in a passage which gives rise to the second ground of review before me. I shall extract the relevant paragraph below.
The Tribunal also drew support for its opinion as to the origins of the family, from the existence of two Indian visas in the mother's Bangladeshi passport, and a notation that she had exchanged money for travelling expenses to India. The Tribunal considered her explanation to be implausible that she had travelled as a Bihari housemaid to a wealthy family. It noted that the travel to India in November 2000 had occurred during the period when she had claimed to have been incapacitated after the attack on the refugee camp.
The Tribunal also noted that the applicant's father and the applicant had requested a Bengali and not an Urdu speaking interpreter, suggesting that this reflected upon whether they were Urdu speaking Biharis living in a refugee camp.
The Tribunal also referred to other aspects of the father's refugee claims, including his admission that on several occasions he had used fraudulently manufactured documents to support his own claims. The Tribunal said:
The fact that the applicant's father admitted to a previously constituted Tribunal that he submitted fraudulent documents to support his claims that he lived in a camp indicates to the Tribunal that the applicant's father is not a witness of truth, and the applicant's claim that her father lived in a refugee camp is not true.
The Tribunal drew a further adverse reflection on the credibility of the applicant's father, in a paragraph which referred to his procuring a birth certificate for his daughter containing possibly false information, to present to her school. This reasoning forms the basis of the third ground which I shall address below.
The Tribunal concluded as follows:
Taking into account all of the evidence, in particular the fact that the applicant is included on a Bangladeshi passport which was issued to her mother while they were living in Bangladesh and which her mother has renewed while they have been living in Australia, and given that the Tribunal did not find the applicant’s father to be a witness of truth, the Tribunal rejects all of the applicant’s claims in her statement to the Department. The Tribunal does not accept the applicant’s claim that she is a stateless Bihari who lived in a refugee camp, or that her parents are Biharis who lived in a refugee camp. The Tribunal does not accept the applicant’s claim that her father was involved in political violence while living in a camp. The Tribunal does not accept the applicant’s claim that Awami League activists harassed and tortured her mother or attacked their camp in July 1999 or October 2000. It follows the Tribunal does not accept that the applicant or her mother were detained or tortured. The Tribunal does not accept that the applicant has a real chance of persecution arising from her alleged membership of a particular social group, or any other Convention reason should she return to Bangladesh. (some punctuation added)
The applicant has been assisted by counsel, who today relied upon a further amended application containing three grounds of jurisdictional error.
Unless I am persuaded that the Tribunal's decision was affected by jurisdictional error, I do not have power to set aside the Tribunal's decision and remit the matter to the Tribunal. Absent such error, I do not have power to address whether the applicant should be permitted to stay in Australia as a refugee or given any other permission to stay in Australia.

Ground 1

This ground attacks the Tribunal's reasoning, where it referred to the father’s occupation as a cook. The Tribunal said:
In his protection visa application the applicant’s father claimed that before he came to Australia he was a cook. The applicant’s father provided evidence to the Tribunal at the hearing that Biharis have no work rights and are unable to get proper jobs. This is consistent with the independent information before the Tribunal that indicates that Biharis living in camps are deprived of employment. Due to a lack of education and impoverished conditions they are forced to do menial jobs. The Tribunal is of the view that the fact that the applicant’s father stated he was a cook when he first arrived in Australia is inconsistent with the applicant’s claim that her father was a Bihari living in a camp as a Bihari living in a camp would not have been able to obtain employment as a cook. At the hearing the applicant’s father provided a number of different explanations as to why he had stated he was a cook in his protection visa application. At first he claimed that he did any work to survive. He then claimed he was able to get casual work in a restaurant. He then claimed that his migration agent had written down the wrong information in his protection visa application. In response to the section 424A letter the applicant claimed that her father stated he was a cook in his protection visa application because he had been advised by his migration agent to provide the information that was on his passport. The information on the applicant’s father’s passport states that his occupation is “private service”. The Tribunal has considered the explanations the applicant’s father gave at the hearing and the applicant’s response to the section 424A letter and rejects their explanations for the following reasons. The Tribunal is of the view that if the applicant’s father had been unable to get a proper job and had been forced to do any work in order to survive he would have made this claim when he first made his application to the Department. Further, at the Tribunal hearing the applicant’s father when asked by the Tribunal what work he had done in Australia stated that when he first arrived in Australia he worked as a cook in a restaurant in Newtown. The Tribunal is of the view that the fact that the applicant’s father obtained work as a cook when he first arrived in Australia indicates to the Tribunal that he had worked as a cook in Bangladesh before coming to Australia. The Tribunal is of the view that the fact that the applicant’s father stated he was a cook in his application to the Department indicates to the Tribunal that the applicant’s claim that she and her parents are Biharis who lived in a refugee camp before they came to Australia is not true.

Although it was obliquely suggested in the applicant’s written submissions, and in the further amended application, that the Tribunal's finding in this paragraph was suggestive of bias or bad faith, this contention was not put to the Court in any developed manner. In my opinion, there is no substance to such a contention, when the whole of the Tribunal's reasoning is addressed. I was not taken to any part of the transcript of the Tribunal’s hearing and asked to find evidence of anything which might give rise to a relevant apprehension (see Re RRT & Anor; Ex Parte H (2001) 179 ALR 425).
Nor did counsel elaborate his written submission that the Tribunal's reasoning at this point could be characterised as revealing the absence of “proper, genuine and realistic consideration of the applicant's case”, in its reliance upon inconsistencies in the father’s evidence. The submission cited the language of Gummow J, which the Full Federal Court has doubted as an independent ground of jurisdictional error (see NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [51]). However, the phrase regained life in the High Court’s judgment in NAIS v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 470 at [9]‑[10], [37], [171]‑[172], and was applied recently by Weinberg J in SZIIF v Minister for Immigration & Citizenship [2008] FCA 913 at [98].
In my opinion, the present Tribunal’s statement of reasons presents a decision very different to the decision addressed by Weinberg J in SZIIF. In the present case, the Tribunal's conclusion that the applicant's father’s occupation was inconsistent with his claim that he was a Bihari refugee in Bangladesh, was but one of a number of findings which supported its adverse conclusions. I have sketched all of its reasons above. None of the other parts of the Tribunal’s reasoning have been attacked as unreasonable, unsupportable or illogical. Indeed, in my submission, cumulatively the points raised by the Tribunal presented a cogent case for disbelieving the refugee claims of the applicant's father, and those made on behalf of the applicant. I do not accept that its decision was in any sense ‘unreasonable’ under relevant tests of jurisdictional error.
The applicant’s counsel's principal submission under ground 1 attacked the Tribunal's reasoning:
The fact that the applicant's father stated he was a cook when he first arrived in Australia is inconsistent with the applicant's claim that her father was a Bihari living in a camp, as a Bihari living in a camp would not have been able to obtain employment as a cook. (punctuation added)
Counsel contended that essentially this reasoning relied upon a general proposition that no Bihari living in a camp would be able to obtain employment as a cook in Bangladesh. He submitted that there was no evidence to support such a general finding, and therefore to allow the Tribunal's reasoning in this paragraph. He cited principals drawn from Australian Broadcasting Tribunal v Bond (1990) 170 CLR 320 at 355-357, in support of a contention that a factual finding made “with no evidence” can provide jurisdictional error. He cited SFGB v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 231 where this principle was cited at [19] and [20], and was applied by their Honours at [27].
In SFGB, the factual inaccuracy of the Tribunal, which was not founded upon any evidence, was regarded by the Court as a “critical factual conclusion” going to the applicant's refugee status. This might provide a distinction with the present case, where the argued flaw in the Tribunal's reasoning goes only to one of many alternative findings upon which a general view of the credibility of the applicant's father was arrived at. Counsel for the Minister submitted that even if the Tribunal's reasoning about the applicant's father's occupation was not open on any evidence, this would not be a jurisdictional error vitiating the present decision. However, I do not consider that I need to address that contention.
This is because I am not persuaded that the Tribunal's reasoning in the challenged paragraph is based solely, or at all, upon a general finding that Biharis living in a refugee camp are never able to find employment as a cook. In my opinion, the Tribunal has only addressed the evidence concerning the applicant's father about his occupational history, and arrived at a finding as to its veracity and implications. The father’s evidence about this contained various elements which required assessment by the Tribunal, including his evidence at pages 9 and 10 of the transcript.
I am not persuaded that the Tribunal did anything more in the challenged paragraph, than arrive at a factual conclusion about the father’s likely occupation in Bangladesh, and the likelihood that he would have been able to pursue that occupation, and to obtain employment as a cook outside a refugee camp, if he had been a Bihari refugee living in a camp. I am not persuaded that its conclusions about this were not open on the evidence before the Tribunal, including the independent evidence I have extracted above. I therefore do not accept the contentions made in support of ground 1.

Ground 2

This ground is framed in the further amended application as follows:
The Tribunal further committed jurisdictional error in circumstances where its s.424A letter did not explicitly tell the applicant the relevance to the review of the information which it had about the significance of the applicant’s mother attending school.
Particulars:
a.In its s.424A letter the Tribunal indicated that it had information that the applicant’s mother completed her primary and secondary education at schools outside the camps (CB 166, 198).
b.The Tribunal advised that this information was relevant because the information “indicates that your claim that your mother is a Bihari who lived in a refugee camp is not true” (CB 166, 198).
c.The Tribunal did not accept the applicant’s explanation because it did not “explain how her mother was able to obtain a secondary education at a school outside of a camp that would have required the payment of tuition fees (CB 210).
d.In the preceding circumstances the Tribunal’s explanation was of the relevance of the information to the review was ambiguous which, in turn, misled the applicant.
The relevant part of the Tribunal's s.424A(1) letter was as follows:
Education
The independent information before the Tribunal indicates that Biharis living in camps are deprived of education. It is either unavailable or unaffordable. Bangladesh did not consider the ‘Biharis’ to be citizens so schools outside of the camps denied camp based Biharis admission to their schools. Secondary education requires payment of tuition fees so sending children to schools outside the camps was too expensive for Biharis. The educational attainment of women in Bangladesh is among the lowest in the world. According to the 1991 census, only 20 percent of woman in Bangladesh could read and write.
· Your mother provided information to the Department in her protection visa application that she had completed her primary and secondary education at schools outside of the camps. She submitted copies of her Higher School Certificate and her Secondary School Certificate.
This information is relevant as the fact that your mother obtained a secondary school education and completed her Higher School Certificate may indicate that your claim that mother is a Bihari who lived in a refugee camp is not true. This information is relevant as it may lead the Tribunal to find that your claim that you are a Bihari who lived in a refugee camp is not true. This information is relevant as it may lead the Tribunal to find that you are not entitled to a protection visa.
· Your father provided information to the Department in his protection visa application that he had completed his primary and secondary education at schools outside of the camps. He submitted copies of his Higher School Certificate and his Secondary School Certificate
This information is relevant as it may indicate that your claim that your father is a Bihari who lived in a refugee camp before he came to Australia is not true. This information is relevant as it may lead the Tribunal to find that your claim that you are a Bihari who lived in a refugee camp is not true. This information is relevant as it may lead the Tribunal to find that you are not entitled to a protection visa.
The Tribunal's reasoning in its statement of reasons concerning the mother's education was as follows:
The applicant’s mother provided information to the Department in her protection visa application that she had completed her primary and secondary education at schools outside of the camp. She submitted copies of her Higher School Certificate and her Secondary School Certificate. The independent information before the Tribunal indicates that Biharis were not considered to be citizens so schools outside of the camps denied camp based Biharis admission to their schools. Further secondary education requires payment of tuition fees so that sending children to schools outside the camps was too expensive for Biharis. The independent information before the Tribunal indicates that the educational attainment of women in Bangladesh is among the lowest in the world. According to the 1991 census, only 20 percent of women in Bangladesh could read and write. In her response to the section 424A letter the applicant claimed that the fact that her parents managed to obtain secondary education did not mean that her parents did not live in the camp. She referred to the case of Mohammad Hassan, a Geneva camp resident, who against the odds had obtained a masters degree. She referred to country information that indicated that between 10 to 20 percent of Biharis were enrolled in school. The Tribunal accepts the information provided by the applicant that a small percentage of camp based Biharis attend school. The country information provided by the applicant in her response to the section 424A letter does not explain how her mother was able to obtain a secondary education at a school outside of a camp that would have required payment of tuition fees at a time when the majority of women in Bangladesh living outside of a camp did not attend secondary school. The Tribunal is of the view that the fact that the applicant’s mother obtained a secondary school education outside of a camp indicates to the Tribunal that the applicant’s claim that she and her parents are Biharis who lived in a refugee camp before they came to Australia is not true.
The contention of the applicant’s counsel was not that there was any deficiency in relation to s.424A(1)(a), which requires particulars of information to be put to an applicant in writing, but that there was a deficiency in relation to the requirement of s.424A(1)(b) that the Tribunal's written invitation for comments must:
Ensure, as far as reasonably practicable, that the applicant understands why it [the particulars of the information that the Tribunal considers would be reason, or a part of the reason, for affirming the decision that is under review] is relevant to the review.
Both counsel submitted that there was some extrinsic evidence, as well as the Tribunal's reasoning, which could illuminate the adequacy of the Tribunal's s.424A(1) letter to the applicant, insofar as it was required to comply with s.424A(1)(a) and (b). The extrinsic evidence was found, firstly, in what was said about the mother’s education at the Tribunal's hearing, and secondly, in how the applicant's father responded to the s.424A letter on behalf of the applicant.
At the hearing, the transcript shows:
M:You have also submitted other documents to the Tribunal which I have difficulty with. (The applicant’s) mother provided documentation that she had attended (Named) High School and completed her secondary school certificate which she obtained in 1978. She claimed that she attended (Named) Woman’s College. She submitted her High School Certificate which she obtained in 1980.
You also claim that you attended (Named) High School and obtained your Higher School Certificate.
Now the fact is I have independent information about Biharis and their education. As you say, Bangladesh did not consider Biharis to be citizens, they were denied access to schools. The fact is that it would have been impossible for Biharis to complete their secondary education because they would have had to pay fees which they wouldn’t have been able to afford them.
The fact that you have provided evidence to indicate that you and your wife completed secondary education, indicates to me that you were not Biharis living in the camp. Would you like to comment on that?
AF:As I have indicated about one article which is written in Bengali, which says that, in one of the statements if they sit for an exam they have to sit using, hiding their own identity and they have a registered Bangladeshi name, rather than saying that he is a man from Refugee who was a former Pakistani. And it is also written over here that one of the guardians at the school helped him to do so. It is very easy to obtain something in Bangladesh hiding your own identity. It doesn’t mean that I’m not a Bihari.
M:It would have been, I’d also put to you information about, especially for women, at the present time the overall literacy rate in Bangladesh is only 58% for males and 60%....49.5% for females.
The fact that (the applicant’s) mother completed her secondary education in 1980 indicates, I mean, Biharis living in camps would not be paying for their daughters to do secondary education. The fact that she completed her secondary education indicates that she was not a Bihari living in a camp. Would you like to comment on that.
AF:As this took place before I married her, so it’s a story is part of the life before our marriage and I’m not sure how it happened, maybe her father provided some money to complete her education. Maybe they were a bit better position financially.
M:There was no better position, your whole profile is not consistent with the Bihari. The fact that you have secondary education and especially (applicant’s) mother indicates that you were not Biharis living in camps.
AF:One thing, madam, is that secondary education is here is expensive, but in Bangladesh is very easy and free there, no money involved there.
M:That’s not correct I’m sorry, its very unusual for women to do secondary education in the 1970s which was when your wife got her education. We’re not talking about the situation now, in the 70s it would have been extremely unusual for a woman, any woman, at any level in society to obtain a secondary education. For a Bihari, unheard of.
AF:Anyway, actually I don’t really know, but just I, because, maybe some way she manage it, I cant understand some of this question.
The response of the applicant's father to the written invitation for comments addressed the relevant issue as follows:
Education Issue: My parents managed to obtain secondary & higher secondary education. But it does not mean that my parents did not live in the camp. I again repeat the independent country information where “Mohammad Hasan, a 28 year old secretary-general of the association of young generation of Urdu speaking community, a group lobbying for full rights, recall the plight of a Geneva camp resident who, against the odds, managed to get a Masters degree. So that does not mean that Mohammad Hasan is not a Bihari. According to Refugee International estimates of Biharis in schools range between 10 to 20 percents.
The applicant’s counsel submitted that the response referring to “my parents managed to obtain secondary and higher secondary education”, and referring to an example of somebody who had obtained an education as a refugee, indicated that they misunderstood that the Tribunal saw as significant whether Biharis in refugee camps could pay for an education in schools outside the camps. Rather, it showed that they thought that the Tribunal’s concern was only whether an education could be obtained. Such a misunderstanding accounted for why they did not address the aspect of payment for education, and illustrated an inadequacy in the s.424A(1) letter.
Counsel for the Minister submitted that other possible reasons for the applicant not fully responding to the letter might be apparent, and that it was the task of the Tribunal to assess the adequacy and implications of the response to the matters which had been put. She submitted that it was open to the Tribunal to draw adversely from the inadequacy of the response, in particular from its failure to address payment of tuition fees, as the Tribunal had clearly invited. She submitted that there could have been no misunderstanding that the Tribunal had a concern about how the mother's parents had been able to afford an education for their daughter, from what was said at the hearing.
I accept that this is so. The transcript shows that it was very clearly brought to the attention of the applicant and her father at the hearing, that the Tribunal was concerned about how the parents of both of the applicant’s parents could have been able to afford an education for their children, if they had all been Biharis who had lived in a refugee camp.
However, the discussion of a Tribunal at a hearing concerning a relevant issue cannot provide a substitute for a proper framing of a s.424A(1) letter. This was made clear in SAAP v Minister for Immigration & Multicultural & Indigenous Affairs (2005) 228 CLR 294. The adequacy of the Tribunal's letter must be examined on its merits by reference to the terms in which it was framed by the Tribunal. I have found little assistance when doing this from considering how this issue was raised at the hearing, or responded to by the applicant in writing.
Counsel for the applicant submitted that the Tribunal's reference in its letter to education being “either unavailable or unaffordable” had rolled up two separate pieces of information, which should have been put separately to the applicant as requiring separate attention in a response.
However, I do not accept that contention. In my opinion, to have split up information concerning the availability and likelihood of an education being paid for in Bangladesh for a Bihari woman living in a refugee camp was properly put by the Tribunal as one issue. To have split this issue into separate matters for response would, in my opinion, have been likely to have given rise to a confusingly lengthy invitation for comments. It was appropriate for the Tribunal to raise particular areas of concern in its lengthy letter under headings, and to include related points in what was put to the applicant on each topic. This could be illustrated by all the other matters that were put to the applicant under other headings, all of which quite properly encompassed a group of relevant pieces of information bearing on a particular topic going to credibility.
In the present case, the country information which the Tribunal put to the applicant quite plainly raised two separate matters for consideration by the applicant; being the availability and affordability of an education to women living in Bihari refugee camps. In my opinion, the Tribunal clearly put to the applicant that both matters appeared inconsistent with the mother's claimed education. I consider that it sufficiently explained that the information would bear on the truth of the claim that the applicant had lived in a refugee camp, and that the applicant's parents were themselves children of such refugees, who had obtained their educations while living in a refugee camp. In my opinion, the letter sufficiently complied with s.424A(1)(b) of the Act.
I cannot find any parallel or analogy with the situation found by the Full Court in Minister for Immigration & Multicultural Affairs v SZGMF [2006] FCAFC 138 at [38]-[41]. In that case the Tribunal referred to the “opaque nature of the particulars of the information”, as impeding the ability of the applicant to understand the relevance of the information put to him. In the present case, the particulars of the information given to the applicant were not at all opaque, in my opinion. Nor can I find any parallel with the reasoning of Stone and Tracy JJ in SZKCQv Minister for Immigration & Citizenship [2008] FCAFC 119 at [4].

For the above reasons I am not persuaded by the arguments presented in support of ground 2.
I note that it was not submitted that the Tribunal was in breach of s.425 on principles applied by the High Court in SZBEL v Minister for Immigration & Multicultural & Indigenous Affair (2006) 228 CLR 152, in relation to the issue of the mother's education. Such a contention would not have been open, in my opinion, given the exchange which had occurred at the hearing.

Ground 3

This ground challenged the Tribunal's reasoning at the end of its findings, where it considered the obtaining by the applicant's father of a birth certificate containing inaccurate information for presentation to a school in Australia. It argued that this impermissibly took into account conduct in Australia, contrary to the injunction in s.91R(3) of the Migration Act.
The Tribunal's reasoning was as follows:
The applicant submitted her birth certificate to the Tribunal. Her birth certificate stated that she had been born at the Holy Family Red Crescent Hospital in Dhaka and that her father at the time of her birth was a business man living in Kallanpur. At the hearing, when the Tribunal asked the applicant’s father to explain why the information on his daughter’s birth certificate was inconsistent with his claim that they were Biharis living in a camp, he claimed that the information on his daughter’s birth certificate relating to his occupation and place of address was incorrect. He claimed he had contacted friends in Bangladesh to obtain the birth certificate. He claimed his friends had provided the information on the certificate. In her response to the section 424A letter the applicant stated that birth certificates in Bangladesh are issued upon verbal request, and no proof of a person’s date of birth, identity or age is required. She stated that if a birth certificate had not been obtained from Bangladesh she could not enrol at school in Australia. The Tribunal is of the view that the fact that the applicant’s father was willing to provide information to the applicant’s school in Australia regardless of its truth indicates that he would be willing to provide any information to the Tribunal to strengthen his claim to refugee status.
Section 91R(3) provides:
For the purposes of the application of this Act and the regulations to a particular person:
a)in determining whether the person has a well‑founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
A recent decision of the Full Court has held that a Tribunal is precluded from taking into account for any purpose “any conduct engaged in by the person in Australia”, even as grounds for determining that a claimant is not a refugee, in the absence of a finding of satisfaction in terms of paragraph (3)(b) (see SZJGV v Ministerfor Immigration & Citizenship [2008] FCAFC 105). The Court said at [22]:
We accept the Minister’s submission that s 91R(3) can only, sensibly, be applied once primary findings of fact have been made. If, for example, an applicant claims to have engaged in conduct in Australia which causes him or her to fear persecution if returned to his or her country of origin, the Tribunal must decide whether or not that conduct has occurred. If it has not occurred then there will be nothing to disregard; nor will the occasion arise to determine whether or not paragraph (b) may have application. If it has occurred then consideration must be given to the requirements of s 91R(3). We do not understand the appellants to contend otherwise. Their submissions do, however, overreach when they assert that, if an applicant seeks to rely on his or her conduct in Australia and the Tribunal accepts that such conduct has occurred, the conduct cannot be taken into account “at all” in deciding the application. As the Minister points out, the lodging of an application for a protection visa in which particular claims are made is a relevant matter which is properly to be brought into account. Once, however, the adjudication process has commenced and primary facts have been found which include conduct engaged in by the applicant in Australia, then s 91R(3) is engaged. Once engaged, s 91R(3) precludes the decision maker from having regard to “any conduct” engaged in by the applicant in Australia unless the decision maker is satisfied that the conduct was engaged in for purposes other than strengthening the applicant’s claim to be a refugee. Inaction can constitute conduct within the meaning of s 91R(3)..
Counsel for the Minister responded that it was the father's conduct which was the subject of the Tribunal's adverse conclusions in the present case, and not conduct by the applicant for refugee status. It is only the latter’s conduct in Australia, which is covered by the reference to “conduct engaged in by the person” in 91R(3).
So much, in my opinion, must be clear from the language of the section. Conduct in Australia by another person bearing upon the assessment of the refugee claims of the visa applicant, is not required to be disregarded if it is relevant to determining the refugee status of the visa applicant.
In response, counsel for the applicant contended that, in effect, the conduct of the applicant’s father in obtaining and presenting a possibly fraudulent birth certificate had been engaged in by him as her guardian, and therefore was to be treated as if it was her conduct. He did not cite any authority in relation to the capacities in which the father might have acted, nor bearing on the reference to “the person” in s.91R(3).
Counsel for the Minister did not concede that the reference to “conduct engaged in by the person in Australia” encompassed the conduct of a third person acting as the “alter ego” of the visa applicant. She submitted that the section addressed only the actual conduct of the visa applicant, and not actions of any other person, whatever the capacity or objects of their conduct.
I have some difficulties accepting such an absolute construction. References in statutes to ‘a person’ in relation to relevant conduct have usually been regarded as encompassing conduct taken by that person, or by a third person acting as the relevant person's alter ego, whether under principles of agency or other representative capacities. Moreover, in relation to children, parents at times have a capacity to act as their child's alter ego under common law principles. As McHugh J said in Re Woolley; Ex Parte Applicants M276/2003 (2004) 225 CLR 1 at [103]:
Parents in their capacity as 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.
And see also Gummow J at 153 and Callinan J at 226.
The point of construction was insufficiently addressed in the submissions before me. However, in my opinion, the Tribunal's obligations under s.91R(3) in the present case do not turn upon this question of construction. In my opinion, the conduct of the applicant’s father which the Tribunal identified as pertinent to his credibility, and thereby to determining his daughter's refugee status, was not conduct which he engaged in as the alter ego of his daughter in any possibly relevant sense. Rather, his conduct was that of a parent exercising the function of a parent when arranging the education of a child. It was not an action in any legal sense taken ‘on behalf of’ the child, even if the child took the benefit of the parent’s conduct. In my opinion the Tribunal's reasoning did not draw upon conduct by the father in Australia acting as “the person” referred to in s.91R(3).
Counsel for the applicant sought to give further substance to his arguments, by exploring the capacities which the father had adopted in the course of the proceedings before the Tribunal. As I have indicated above he had given the instructions to the migration agent in relation to making her refugee claims, and had put himself forward as a relevant witness in relation to her application. It also seems that after the agent's authority to represent the applicant had been withdrawn, he proceeded to assist her in the Tribunal’s proceedings in a capacity as guardian, and was permitted to do so by the Tribunal. In submissions which I did not understand, counsel suggested that this later conduct by the father reflected back on his conduct in relation to her birth certificate being presented to her school.
However, I do not understand how a third party's conduct as the representative of a refugee claimant subsequent to the relevant conduct addressed by a decision-maker can have any bearing under 91R(3). Plainly, the section is addressing the relevance of conduct taken in Australia, whether by the applicant or an agent or otherwise, at the time that the conduct occurs. Later events might reflect on that assessment, but in the present case I do not think that the father's actions in pursuing and assisting the applicant's protection visa application had any bearing on the issue which was addressed by the Tribunal in the reasoning which is the subject of this ground.
For the above reasons I am not satisfied that the Tribunal was in breach of the prohibition in s.91R(3) as is contended. I therefore do not accept this ground of review.
Since I have not been persuaded by any of the grounds argued before me today I must dismiss the application.
POSTSCRIPT. The delivery of the above judgment took the court well past the normal afternoon hearing time. I then declined to make orders in relation to the Minister’s costs without hearing further submissions from the parties on the situation of a child applicant without a guardian ad litem, which was addressed by the Full Court in SFTB v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 129 FCR 222. I have given leave for the Minister to apply for costs, if he wishes to do so.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Smith FM

Associate: Michael Abood

Date: 17 July 2008