SZNPT v Minister for Immigration
[2009] FMCA 775
•10 September 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZNPT v MINISTER FOR IMMIGRATION & ANOR | [2009] FMCA 775 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of a protection visa – applicant claiming persecution in Bangladesh – applicant claiming domestic violence in Australia – whether the Tribunal overlooked an element of the applicant’s claims, or breached s.91R(3) or s.424(2) of the Migration Act considered. |
| Migration Act 1958 (Cth), ss.91R(3), 424, 424A, 424B |
| Applicant A & Anor v Minister for Immigration & Anor (1997) 142 ALR 331 Minister for Immigration v SZLFX [2009] HCA 31 SZJGV & Ors v Minister for Immigration & Anor (2008) 170 FCR 515 |
| Applicant: | SZNPT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 1208 of 2009 |
| Judgment of: | Driver FM |
| Hearing date: | 12 August 2009 |
| Date of Last Submission: | 20 August 2009 |
| Delivered at: | Sydney |
| Delivered on: | 10 September 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr P D Reynolds |
| Solicitors for the Applicant: | Parish Patience Immigration Law |
| Counsel for the Respondents: | Ms S A Sirtes |
| Solicitors for the Respondents: | DLA Phillips Fox |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 1208 of 2009
| SZNPT |
Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction an background
This is an application to review a decision of the Refugee Review Tribunal (“the Tribunal”). The decision was made on 22 April 2009. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicant a protection visa. The following statement of background facts is derived from paragraphs 1 through to 10 of the Minister’s written submissions filed on 7 August 2009 and paragraphs 2 through to 25 of the applicant’s written submissions filed on 4 August 2009.
On 30 October 2007 the applicant, a citizen of Bangladesh arrived in Australia (Court Book (“CB”) page 15). On 10 October 2007 she lodged an application for refugee status with the Department of Immigration and Citizenship ("Department") pursuant to the Migration Act1958 (Cth) (“the Migration Act”) (CB 1 to 41) including a separate statement of claims (CB 33 to 35). The applicant claimed to fear persecution as a result of having suffered domestic violence at the hands of her husband.
Specifically, the applicant made the following claims:
a)her father arranged a marriage on her behalf and a ceremony was duly arranged over the phone (because her husband was in Australia). Afterwards, she moved to her husband’s family’s house and was told to study for an IELTS test and to travel to Australia on a student visa;
b)subsequently, her husband discouraged her from studying for IELTS and she returned to her village. Whenever she raised the issue with her husband, he threatened to divorce her. She subsequently learned that he was a refugee;
c)two years later, her husband arranged for her to apply for a student visa as his nephew’s spouse;
d)he later called her relatives and said that they had cheated her because she was not as beautiful as he had expected. He also accused her of not being a virgin;
e)subsequently he demanded that she hand over all of her gold ornaments, which she did;
f)she was frequently insulted in front of others, threatened with divorce, degraded and told that she would be sent back to Bangladesh;
g)she found out that he had booked a flight for her back to Bangladesh on 10 March 2008, and she demanded her passport back. He then stopped giving her money for food and pressured her for a divorce so that he could own their property in Bangladesh. His nephew also asked for a statement to provide to the Department stating that she would divorce him;
h)her husband started spreading rumours in Bangladesh that she was a prostitute, that she had married another man, and that her family in Bangladesh were involved in her scheme;
i)men were dominant in Bangladesh and, were she to return, she would commit suicide.
On 14 November 2008, a delegate of the Minister invited the applicant to an interview (CB 47), which she attended.
On 27 November 2008, the applicant’s agent wrote to the Department which, in short, made submissions as to why the applicant had a well founded fear of persecution on the basis of her membership of a particular social group (women in Bangladesh and/or who are victims of domestic violence) and attached evidence in relation to this claim (CB 50 to 488). On 16 December 2008, the applicant’s agent wrote further to the Tribunal, in which he made further submissions and enclosed further evidence (CB 500 to 502).
On 21 December 2008 a delegate of the Minister refused the grant of a protection visa (CB 504 to 524).
The delegate:
a)accepted that women in Bangladesh constituted a particular social group;
b)accepted that her membership of the group was the essential and significant reason for the harm feared by her;
c)accepted that the harm feared from her family involved serious harm and systematic and discriminatory conduct;
d)stated that the applicant had fabricated her claims of being a victim of domestic violence in order to strengthen her claims for refugee status;
e)held that, even assuming her claims to be correct, there was no link between the fear and the Convention because it was private in nature and there was no evidence indicating that the state was ‘complicit’;
f)further found that there was effective state protective available to the applicant, although reports suggested that the existing laws and practice fell short of providing the necessary protection for victims of domestic violence and that the government officials and police were sometimes slow to assist victims of harassment and domestic violence;
g)also considered that the applicant’s delay in lodging her protection visa application raised doubts as to her claims;
h)accepted the country information which indicated that the domestic violence in Bangladesh was frequent, that Islamic family law practices greatly disadvantage women, that the Bangladesh government’s existing laws and practice fell short of providing the necessary protection for victims of domestic violence and that the government officials and police were sometimes slow to assist victims of harassment and domestic violence. However, owing to the applicant’s overall credibility and the totality of her claims, she was not subject to or would be subject to persecution in Bangladesh for any Convention reason.
On 15 January 2009 the Tribunal received the applicant’s application for a review of the delegate’s decision by the Tribunal (CB 544 to 547) although the application did not contain any claims.
On 15 January 2009, the Tribunal wrote to the applicant’s agent and, inter alia, requested the immediate provision of any documents, information or other evidence that the applicant wanted the Tribunal to consider (CB 572 to 573).
On 9 February 2009 the applicant was invited to give evidence at a hearing before the Tribunal, and was informed by that invitation that the Tribunal was unable to make a decision in her favour based on the material provided to date alone (CB 575 to 577). In its invitation, it inter alia requested that the applicant provide any additional information to be considered with the Response to Hearing Invitation, which was to be returned by 16 February 2009.
On 3 March 2009 the applicant responded to the invitation to hearing (CB 578 to 580).
On 17 March 2009 the applicant attended a hearing of the Tribunal to give evidence and present arguments with the assistance of a Bengali interpreter and represented by her migration agent (CB 587 to 588 and 621 at [25] to [26]).
Following the hearing, the applicant made two written submissions to the Tribunal on 3 March 2009 and 15 April 2009 (CB 604 to 612).
On 23 April 2009, the Tribunal notified the applicant’s agent of its decision to affirm the decision of the delegate to refuse the applicant the visa (CB 614 to 630).
The Tribunal's decision
The Tribunal’s reasons are set out at [48]-[62] (CB 625 to 629).
The Tribunal:
a)accepted the applicant is who she claims to be and is a citizen of Bangladesh (CB 626 at [52];
b)considered the applicant not to be a credible witness because of the manner in which she obtained a visa for her trip to Australia, and the way in which she arrived, relying upon the applicant’s own evidence that she participated in a fraudulent visa application (CB 626 at [53]);
c)doubted whether the applicant had been married to either her alleged husband or the husband’s nephew (CB 626 to 627 at [54]);
d)accepted that the applicant entered into a marriage arrangement with a man (BRK) and expected to come to Australia as his spouse but that when this did not eventuate, she became part of a false application to come to Australia as the wife of the nephew (CB 627 at [54]);
e)accepted that the applicant had lived in Australia with BRK and the nephew in rented accommodation and that the men had left the accommodation in April 2008 because of the conflict and arguments (CB 627 at [55]);
f)did not accept that the applicant feared or fears harm from BRK or the nephew in Australia or that she was beaten by BRK as claimed (CB 627 at [56]);
g)did not accept that the applicant had approached Hurstville police and considered that if her version of events surrounding her visit to Hurstville police were true, that she would have returned to the police when they had secured her an interpreter, as they had asked her to do (CB 627 at [56]);
h)found that although the applicant may not want to return to Bangladesh because of embarrassment at not having been able to stay in Australia with BRK, it did not accept that she feared to return because she or her family would suffer harm by reason of:
i)her separation from her husband;
ii)her marriage to another person; or
iii)rumours which had been spread about her (CB 628 at [57]).
i)did not accept that the applicant feared harm on return to Bangladesh from her own family because she was either separated from her husband or had allegedly married someone else (CB 628 at [58]);
j)accepted that both of BRK and the nephew could return to Bangladesh at some time but did not accept that the applicant feared harm from either of the men on return to Bangladesh. The Tribunal did not accept that the threats the applicant alleged had been made against her by BRK had in fact been made (CB 628 to 629 at [59]); and
k)found there to be no plausible evidence that the applicant had suffered or would suffer serious harm in Bangladesh in the reasonably foreseeable future (or could not obtain protection) by reason of her membership of a particular social group being women in Bangladesh who are separated or divorced or without a male protector, or for any other Convention reason[1].
[1] At [61].
The application
These proceedings began with a show cause application filed on 19 May 2009. The applicant now relies upon an amended application filed on 4 August 2009 which contains the following grounds:
1. The Tribunal committed jurisdictional error by failing to correctly construe and deal with all of the Applicant’s claims expressly made or otherwise arising on the material before it, or otherwise failing to ask itself the right question.
2. The Tribunal committed jurisdictional error by breaching section 91R(3) in that it took into account the Applicant’s conduct in Australia without the Applicant having satisfied it that the Applicant engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the [Refugees] Convention as amended by the Refugees Protocol.
3. The Tribunal breached section 424A by failing to put, pursuant to section 424A, the information set out in the Departmental records before it relating to Mohammad Abdul Ahad Khan and Bazlur Rahman Khan to the Applicant for comment.
4. The Tribunal committed jurisdictional error by requesting additional information from a natural [person] at the Department of Immigration and Citizenship pursuant to section 424(2) without complying with section 424(3)(a) and/or section 424B.
5. The Tribunal committed jurisdictional error by requesting additional information from the Applicant pursuant to section 424(2), without specifying the prescribed period within which the Applicant could respond.
Ground 3 was not pressed. Ground 4 was formally pressed but the applicant recognises that she cannot succeed on that ground in this Court in the face of the decision of the Full Federal Court in SZLPO v Minister for Immigration (2009) 255 ALR 407.
The evidence
I received as evidence the court book filed on 11 June 2009 and the supplementary court book filed on 5 August 2009. I also received the affidavit of Laura Frances Weston made on 12 August 2009 concerning the background to the preparation of the supplementary court book. In addition, at the hearing on 12 August 2009 I gave leave for the Minister to file further evidence in relation to the timing of the constitution of the Tribunal to conduct the review, bearing upon ground 5 of the amended application. That evidence was filed on 20 August 2009 and establishes that the Tribunal was constituted on 3 February 2009.
Submissions
In relation to ground 1, the applicant submits that she claimed in writing that she had a well-founded fear of persecution by reason of her membership in the particular social group of “women in Bangladesh” and/or “women who are victims of gender related violence in Bangladesh”. She submits that the evidence shows that she clearly articulated an express claim that she feared harm by reason of her membership of either of those two particular social groups. She also submits that she expressly claimed to fear psychological and emotional abuse and financial deprivation as well as physical violence. The applicant submits that the Tribunal misconstrued the particular social group claim and only dealt with the applicant’s fear of physical violence.
In relation to ground 2, the applicant submits that the Tribunal accepted that she had revealed the falsity of her application for a student visa while in Australia and that that conduct was “capable of” supporting her claims to be a refugee in that she revealed the falsity of the application to advance her claims that she was forced into a visa scheme by her husband and his nephew. The applicant submits that the Tribunal relied upon that conduct in a manner adverse to her, by finding that she had engaged in it to “achieve a particular migration outcome for herself”, in the context of finding that the applicant was not a reliable witness. The applicant submits that, in the absence of a finding that the applicant had engaged in that conduct otherwise than for the purpose of strengthening her claim to be a refugee, it was obliged to disregard that conduct and it did not do so.
The applicant further submits that her claim of suffering domestic conflict in Australia was capable of supporting her claims to be a refugee and that the Tribunal relied upon that conduct in rejecting her claims without considering the operation of s.91R(3) of the Migration Act.
In relation to ground 5, the applicant submits, consistently with the decision of this Court in SZNAV & Ors v Minister for Immigration & Anor [2009] FMCA 693 that the Tribunal breached s.424B in respect of its acknowledgement letter which is said to be subject to the requirements of s.424(2) of the Migration Act.
The Minister relevantly submits, in relation to ground 1, that having expressly rejected the factual claims which underlay the domestic violence asserted by the applicant it was not necessary for the Tribunal to consider what particular social group the applicant might have belonged to in connection with those claims. In any event, the Minister asserts that the Tribunal expressly considered the relevant group (CB 629 at [61]). The Minister submits that the applicant’s claim to fear persecution simply by being a woman in Bangladesh is misconceived. The Minister disputes that such a claim was advanced as a separate claim of persecution.
In relation to ground 2, the Minister submits that it is apparent from the Tribunal’s reasons that the applicant committed visa fraud to achieve a particular migration outcome and that she only revealed that fraud when she wished to obtain a new visa, and that those findings were based on a reasoning that the applicant acted in ways expedient to her immediate wishes, not to strengthen her refugee claims[2]. The Minister further submits that the applicant’s claims in relation to domestic conflict in Australia were implicitly accepted by the Tribunal as being not undertaken for the purpose of strengthening her protection visa claims, to the extent that that conflict might be seen as “conduct”[3].
[2] See SZMTJ v Minister for Immigration (No 2) [2009] FCA 486 at [25]-[29] per Flick J
[3] See SZHAY v Minister for Immigration (2006) 199 FLR 148 at 164 per Driver FM
In relation to ground 5 the Minister submits that SZNAV was wrongly decided and that the Court should prefer the decisions of SZNJT v Minister for Immigration & Anor [2009] FMCA 730 per Smith FM and SZNHU v Minister for Immigration & Anor (No 3) [2009] FMCA 777 per Scarlett FM. The Minister notes that the acknowledgement letter in the present case (CB 572 to 573) is of the same kind which was considered in SZNJT.
The Minister further submits:
a)The letter was an acknowledgement letter only and not a s.424 request (SZNJT at [62]).
b)The letter, dated 15 January 2009, did not give rise to any procedural irregularity by reason of its use of the term “immediately” rather than providing 14 days (SZNJT at [63]).
c)The applicant was invited to a hearing several weeks after the acknowledgement letter was sent. She attended that hearing, present arguments, gave evidence and was represented by her migration agent. There was no detriment flowing to the applicant by reason of the acknowledgment letter having not included such a period. However, in the instant case, more than 14 days elapsed between the date of the acknowledgement letter, and the next correspondence with the applicant being the invitation to hearing which was sent on 9 February 2009, 25 days later the Minister submits that even if there was some non compliance with the formalities of ss.424(2) and 424B there were no jurisdictional consequences or, if there were, they were insignificant (SZNJT at [70] to [73]).
d)The applicant had not provided the Tribunal with any information in connection with her review, other than contact details. Accordingly the Tribunal was not seeking “additional information” (SZNJT at [64] to [67]).
The Minister filed additional written submissions on 20 August 2009 in relation to ground 5, in the light of the evidence that the Tribunal was constituted on 3 February 2009. Those submissions are relevantly:
Section 421 of the Migration Act 1958 (Cth) provides as follows:
(1) For the purpose of a particular review, the Tribunal is to be constituted, in accordance with a direction under subsection (2), by a single member.
(2) The Principal Member may give a written direction about who is to constitute the Tribunal for the purpose of a particular review.
Section 425 relevantly provides:
(1) The Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.
(2) Subsection (1) does not apply if:
(a) the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it;…
In SZNJT v Minister for Immigration & Citizenship [2009] FMCA 730 Smith FM declined to draw an inference, in the absence of specific evidence, as to the date upon which the Tribunal was constituted.
In the present case, Annexure “A” to the Weston Affidavit makes plain that the Tribunal in this matter was constituted 3 February 2009.
That is consistent with the substance of the letter at CB 572 to 573, which contains information relevant to the state of the applicant’s review as at the date the letter was sent. The first matter of significance is the statement that the letter is written on the date of receipt of the application for review. It commences “we have received your application 15 January 2009”, without any characterisation that the review is yet on foot. Next the letter states:
What will the Tribunal do now?
We have asked the Department of Immigration and Citizenship (the Department) to send us its file so that the Tribunal can review your application for a protection visa.
When we get your file, we will decide if we can consider your review application. If we can consider it, a member of the Tribunal will look at the information you and the Department have given us and information about your country.
The applicant is then given a brief summary of the effect of ss.425(1) and (2), and ss. 424 and 424A in the following terms:
Will I be invited to a hearing of the Tribunal?
After looking at this information the member may either:
· make a decision in your favour; or
· invite you to attend a hearing of the Tribunal.
The Member may also:
· Write to you for more information
· Ask you to comment on information that the Tribunal has.
Accordingly, the order in which the matter proceeded was that:
a)On 15 January 2009, the application was received and the acknowledgement letter was sent to the applicant. At that time the Tribunal had no documents other than the bare application (CB 544 to 547).
b)On the same day (CB 572) a request was made by the Tribunal to the Department, for the applicant’s file.
c)At some stage thereafter, it can be inferred that the file was received.
d)On 3 February 2009 the Tribunal was constituted. The member was required to determine the Tribunal’s jurisdiction, which appears not to have been an issue.
e)Having done so, the Tribunal determined that on the material before it, it was unable to make a decision in the applicant’s favour and, accordingly, pursuant to the interaction of ss.425(1) and (2) the applicant was duly invited to a hearing on 9 February 2009 (CB 576 to 577).
It is plain from the foregoing that the CB 572 to 573 acknowledgement letter was not sent while the Tribunal was “conducting the review” within the meaning of s 424(1). In fact, the acknowledgement letter informs the applicant that once the member has considered the Department file it may, inter alia, write to the applicant to seek further information (namely in accordance with s 424). This is consistent with the premise of s.424 that the section operates once the Tribunal is “conducting the review”.
The first respondent submits that as the Principal Member had not appointed a member to constitute the Tribunal for the purposes of the applicant’s review, as at the time that the letter at CB 572 to 573 was sent, s.424 had no operation as at that time.
Reasoning
A statement in support of the applicant’s protection visa claims, prepared by her lawyers, appears at pages 50 to 65 of the court book. The statement included the submission that the applicant has a well-founded fear of persecution on the grounds of her membership of a particular social group; namely, women in Bangladesh and/or women who are victims of gender related violence in the context where the State provides such persons no effective protection (CB 52). The statement included references to country material on domestic gender related violence and the position of women in Bangladesh (CB 59 to 63). The submission concluded under that heading (CB 64):
1. The applicant is outside her country, Bangladesh.
2. The applicant’s claims are grounded in events which have taken place in Bangladesh and Australia.
3. The applicant has a fear which is well founded in the circumstances in that there is a real chance that she would find herself a victim of persecution if required to return to Bangladesh and is evidenced by the material produced.
4. The applicant’s persecution arises from the Convention based ground of her membership of a particular social group.
5. Given the failure of the State to protect women in this social group, coupled with numerous reports evidencing that the State is unable or reluctant to protect women who are victims of domestic violence, the applicant cannot obtain effective protection in Bangladesh.
The delegate’s decision on the applicant’s claims appears at pages 508 to 524 of the court book. Relevantly, the delegate stated (CB 514):
Membership of a particular social group
A particular social group is a collection of persons who share a certain characteristic or element which unites them and distinguishes them from society at large. That is to say, not only must such persons exhibit some common element, the element must unite them, making those who share it a cognisable group within their society. The group must be identifiable as a social unit. Moreover, the characteristic or element which unites the group cannot be a common fear of persecution. In other words, the group must not be defined by the persecution: Applicant A & Anor v MIEA & Anor (1997) 142 ALR 331 per Dawson J at 341, McHugh J at 358-9, Gummow J at 375-6.
I note that the applicant belongs to a number of general groups that could be ascribed to many Bangladesh citizens, i.e., the groups of ‘citizens of Bangladesh’, and ‘women in Bangladesh’. Whether the applicant is a member of a group that is a PSG must be determined from her circumstances, and from relevant country information in relation to Bangladesh. The independent country information cited in this decision indicates that women in Bangladesh are united by a common element, their gender and their consequent socioeconomic position, and that this sets them apart as a group from society as a whole.
Furthermore, I note that in MIMA V Khawar [2002] HCA 14 (11 April 2002), the Court found that, in certain circumstances, a particular social group may be based on gender. I am satisfied, therefore, that women in Bangladesh may constitute a particular social group for the purpose of the Convention.
The Tribunal in its reasons at [22] (CB 620) dealt with the applicant’s lawyer’s submission in the following terms:
On 27 November 2008 the applicant sent the Department a submission in support of her application. This submission attached country information, articles and decisions about the human rights abuses of women and domestic and other violence against women in Bangladesh. It claims that the applicant is a member of a particular social group, namely a woman from Bangladesh who has suffered domestic violence from her husband and a woman from Bangladesh who is separated/divorced. It is submitted that the applicant’s claims are grounded in events that happened in Bangladesh and Australia and she would be persecuted if she returned. It is submitted that authorities do not provide effective protection to such women as the applicant in Bangladesh. It is also submitted that relocation is not an option for the applicant in Bangladesh.
The Tribunal also questioned the applicant about her claims at the hearing conducted by the Tribunal. The Tribunal relevantly recites an aspect of that questioning at [37] and [38] of its reasons (CB 623 to 624):
The Tribunal asked the applicant when she learned that she could apply for protection in Australia. She said that she came to Australia with the nephew, [MAAK], and then he sent a letter to immigration to cancel her spouse student visa. When she told her supervisor where she worked about that he told her to go to her current representative. The Tribunal asked the applicant what she thinks will happen to her if she returns to her country. In response to this the applicant said that she could have come to Australia on a student visa but her English was not good. She said that she cannot go back to her country so she chose this visa. The Tribunal asked the applicant why she cannot return to Bangladesh. She said she will have mental torture there as her husband’s brother has spread rumours about her being disloyal to her husband and has said that she ran away with his money. She said that they have caused her shame and dishonour and “they have told me not to go back there”. She said that she cannot be alone there and her shameful circumstances will force her to do something bad. The Tribunal asked her about her statement that she had been told not to go back and asked her if she is claiming that her mother and brothers would prevent her returning to live with them in Bangladesh. She said that her mother would not chase her away but the circumstances would be bad for her because of the society and her brothers may be harmed; she would have to commit suicide.
The Tribunal asked the applicant whether she feared anything else in her country apart from facing the shame and dishonour that she mentioned. She said that her family cannot move around and that they could be buried alive. The Tribunal noted that nothing has happened to them so far and her evidence is that these rumours about her have been circulating. She said it would be different if she went back. The Tribunal asked the applicant if she feared harm from anyone specifically in the society or was it the general society that she feared. She said that it is like a stereotype society and it would have been bad even if nothing had been said about her. She said that the society will look down on her and she will be boycotted and have mental pressure and she will not be able to live. She said that she fears the general society and her relatives will not support her. She said that society/her family expect her to stay with her husband and will say she is bad. The Tribunal asked her what the community and family thought when she entered into a false marriage to another person before she came to Australia. She said just her family, her nephews and cousins were there and they all knew it was a false marriage and she was going to be with her husband.
The Tribunal summarised the applicant’s claims at [48] of its reasons in the following terms (CB 625):
Essentially the applicant claims that when she was in her country she married her husband in Australia by telephone but he could not bring her to Australia as she anticipated he would because he did not get/have citizenship here. She claims that she later left her country to join her husband in Australia by entering into a false marriage with her husband’s nephew so that she could travel to Australia on a student visa with the nephew as his spouse. She claims that she fears to return to Bangladesh because she will face shame, disgrace and humiliation in her community and be rejected by her family and her family will face shame and disgrace and may suffer harm is she returns to Bangladesh, because of her marriage to the nephew and because she is now separated from her husband and also because her husband and his family members have spread false rumours about her in her country. She also claims that if her husband or his nephew who are both still in Australia return to Bangladesh they will harm her and she will not be able to get protection against that harm because she is a separated woman without a male protector. She claims that her husband could return to Bangladesh because he is now illegally in Australia and that he has threatened to “finish her off” if he is in Bangladesh, and also her husband’s nephew could have difficulties from immigration authorities in Australia and have to return to Bangladesh because he entered into a false marriage with her so that she could come to Australia as his wife.
The Tribunal accepted at [49] (CB 625) from the independent country information available to it that domestic violence is a serious problem for women in Bangladesh and that women who suffer or fear domestic violence in Bangladesh, especially those women who are separated or divorced and without a male protector, cannot always get protection from the harm they suffer or fear from authorities in Bangladesh. The Tribunal then went on to consider the genuineness of the applicant’s asserted fear. The Tribunal expressed some doubt at [52] whether the applicant was who she claimed to be. She was, however, given the benefit of the doubt. The Tribunal then found at [53] that the applicant was not a reliable witness. The Tribunal doubted at [54] that the applicant is or was married as she claimed to be to the man she described as her real husband and found that she had agreed to be part of a false application to come to Australia as the spouse of another person. The Tribunal accepted at [55] that there had been animosity, conflict and arguments with that person and others who lived in the same rented accommodation and that the applicant was afraid. However, the Tribunal did not accept at [56] that the applicant fears harm from her husband or nephew in Australia now and rejected her claim to have been beaten. The Tribunal rejected the applicant’s claim of having gone to the police and rejected the applicant’s claims of a fear of harm in Bangladesh should she return to Bangladesh at [57]-[58] in the following terms (CB 628):
Although the Tribunal accepts that the applicant does not want to return to Bangladesh and may feel embarrassed and that she has lost face with her family and in her community and that people will look down upon her because she has not been able to stay in Australia with [BRK], the Tribunal does not accept as true that the applicant fears to return to Bangladesh because she and/or her family will suffer harm from the community because she is separated from her husband and/or because she married another person or because rumours have been spread about her. Her evidence is that she lived in her country with her family members for about four years after the proxy marriage to [BRK] in June 2003 and although she states that she and her family were embarrassed about this and that she was pressured by her family and others and had mental anguish because he did not bring her to Australia she does not claim that she or her family was threatened or harmed in any way or feared such harm during that time. During that time she entered into a false marriage with the husband’s nephew while she was living in her community with the knowledge of her family members about two months before coming to Australia according to her evidence and did not suffer harm because of that fact. The Tribunal does not accept as true that this was because no one knew about it. The Tribunal does not accept that the applicant fears harm amounting to serious harm to herself for family members in her country because of rumours spread about her by her husband’s family members or anyone else. She separated from her husband in Australia in April 2008 and her evidence is that rumours have already been spread. When the Tribunal pointed out that the rumours do not seem to have affected her family members up until this time given that her evidence is that her mother and her two brothers aged 12 and 16 years who are studying are still living in the family home in Bangladesh, her only response was that things would be different if she returned. The Tribunal does not accept as true that things would be any different for the applicant if she returned to her country. The Tribunal does not accept as true that the applicant fears harm in Bangladesh because of rumours spread about her by her husband’s family members or anyone else.
Further the Tribunal does not accept that the applicant fears to return to her country because her family will harm her or threaten her because she has separated form her husband and, to the extent that she claims it, because she married another person. When the Tribunal questioned her about this she said that her relatives would not support her if she returned but that her mother would not send her away although the society would make things bad for her. Her family clearly knew about the marriage to the husband’s nephew that took place in Bangladesh and that it was false before the applicant left Bangladesh; she told the Tribunal that all the family members got together and they took false photographs to support the application for the student visa.
The Tribunal concluded that the applicant did not fear persecution in Bangladesh for the reasons she claims and that she would not be harmed in Bangladesh for any Convention reason (CB 629 at [60]-[61]).
I accept the Minister’s submission that, having rejected the genuineness of the applicant’s allegations of past harm, it was open to the Tribunal to reject the applicant’s asserted fear of harm in Bangladesh without considering all possible Convention nexuses advanced on her behalf. Further, although the applicant claimed to be a member of several particular social groups, including “women in Bangladesh” and pointed to disadvantages suffered by women in Bangladesh, there was nothing in the applicant’s claims that pointed to either past persecution simply by reason of being a woman in Bangladesh or a fear of future harm simply on that basis. The applicant’s claims were essentially claims of domestic violence and that is what the Tribunal considered and dealt with. Having dealt with the essential factual claims upon which the applicant relied, it was unnecessary for the Tribunal to specifically consider whether the applicant would suffer mental harm based on facts that the Tribunal had already rejected, or whether she would suffer harm simply because she was a woman in Bangladesh (in respect of which no specific claims were made independently of the claims of family violence). I reject the first ground of review.
I also reject the second ground of review. Section 91R(3) of the Migration Act provides:
(3) 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.
The section was considered by the Full Federal Court in SZJGV & Ors v Minister for Immigration & Anor (2008) 170 FCR 515 where the Full Court stated 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).
The Full Court added at [25]:
It may be, in a particular case, as Driver FM was minded to accept in SZIBK and SZGDA, that a distinction might be drawn, for the purposes of s 91R(3), between an applicant’s conduct and the reason or reasons for which that conduct has occurred. It is arguable that the Tribunal is only bound to disregard the conduct. It may be able to rely on the motivation for the conduct for the purpose of bolstering or undermining the applicant’s credibility. Such a distinction may not easily be drawn in many cases. In none of the present cases did the Tribunal either expressly or by implication seek to draw this distinction. A decision on whether or not such a distinction may be drawn for the purposes of s 91R(3) should await a case in which the point is raised.
An issue not resolved by the Full Court was whether a subjective or an objective test should be applied to the question of why particular conduct was engaged in for the purpose of strengthening claims for protection. The applicant submits that s.91R(3) was engaged because the applicant’s conduct, both in relation to her revelation of her part in making a false claim for a student visa, and in relation to family violence in Australia was “capable” of supporting her claim for protection. In my view, that is not the right question. The question is what was the “purpose” of the applicant’s conduct? The Tribunal dealt with that issue in finding that the applicant’s revelation of her part in the visa fraud was merely opportunistic. Moreover, while that revelation might have assisted the applicant in a procedural sense in her review application before the Tribunal, it could not be said to have enhanced her protection visa claims. Likewise, the limited family conflict which the Tribunal accepted as having occurred was not conduct engaged in by the applicant to enhance her protection visa claims. It simply happened. In my view, the answer to this ground is that s.91R(3) was not engaged at all, or if it was engaged, it is implicit in the Tribunal’s reasoning that the relevant conduct was engaged in for a purpose otherwise than to enhance the applicant’s protection visa claims.
I have already noted that ground 3 in the application was not pressed. As to ground 4, I am bound by the decision of the Full Federal Court in SZLPO, in particular at [131]-[134]. I reject that ground.
The remaining ground is ground 5. The letter in issue was an acknowledgement letter which, in all material respects, is in the same terms as the letter considered by this Court in SZNJT. There is an issue whether the sending of that acknowledgement letter occurred during the course of the “review”, so as to attract the application of s.424(2). The affidavit of Ms Weston filed on 20 August 2009 establishes that at the time the acknowledgement letter was sent, the Tribunal had not been constituted. Raphael FM found in SZNAV at [25] that once an application is filed the Tribunal is seized of it and anything it does in relation to the application is done in “conducting the review”. As his Honour acknowledged, however, at [24], the procedural code in Part 7 of the Migration Act applies once an applicant has made a valid application for review of a delegate’s decision. An application may be found to be not valid by reason of lateness or because of non payment of a required fee or (possibly) for some other reason. Until an application is referred to a presiding member for the conduct of the review, it may be reasonably assumed that that decision has not been made.
Where the decision is made that a valid application for review has been received, it may be, as Raphael FM postulates, that everything that went before is part of the review. Conversely, it may be that, until the Tribunal is constituted for the conduct of a review, and accepts the review application as having been validly made, the application is only a purported application and the procedural code in relation to the conduct of a review has no application. It is unnecessary to resolve that question because the decision in SZNAV was overturned on appeal for other reasons by the Full Federal Court on 27 August 2009[4]. The Full Court held, consistently with the recent decision of the High Court in Minister for Immigration v SZKTI [2009] HCA 30[5] that s.424(2) is not engaged on the sending of an acknowledgement letter. The Tribunal has a range of powers available to it to gather information, of which s.424(2) is a particular and formal one, with serious consequences in the case of non compliance. It appears from the Full Court decision at [22] that an invitation to produce information in an acknowledgement letter such as that in issue here is an exercise of power under either s.415(1) or s.424(1) of the Migration Act, although the Full Court doubted (without deciding) at [25] that the request in the acknowledgement letter involved “getting” information in the conduct of the review. Rather, the Full Court considered the request was more likely to be simply an exercise of administrative power pertaining to a review pursuant to s.415(1).
[4] Minister for Immigration v SZNAV [2009] FCAFC 109
[5] and Minister for Immigration v SZLFX [2009] HCA 31
Even in the absence of the decisions of the High Court and the Full Federal Court, I would have found, as was the case in SZNJT, that this case is distinguishable from SZNAV because the applicant provided no information with her review application. I agree with the views expressed by Smith FM in SZNJT at [64]-[65] that the personal particulars in the review application itself were not information provided in connection with the review. To the extent that information was sought in the acknowledgement letter, it was not “additional information” because no information had to that point been provided by the applicant. That aspect of his Honour’s reasoning was left undisturbed by the unsuccessful appeal against his decision[6] which was decided on the same basis as the appeal in SZNAV.
[6] SZNJT v Minister for Immigration [2009] FCAFC 108
I reject ground 5.
I conclude that the decision of the Tribunal is free from jurisdictional error. It is therefore a privative clause decision and the application must be dismissed. I will so order.
I will hear the parties as to costs.
I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 10 September 2009
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