SZQAS v Minister for Immigration
[2011] FMCA 555
•31 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SZQAS & ANOR v MINISTER FOR IMMIGRATION & ANOR | [2011] FMCA 555 |
| MIGRATION – Review of Refugee Review Tribunal decision – refusal of protection visas – two applicants asserting a fear of harm but the second applicant claiming only as a member of the first applicant’s family – whether the Tribunal failed to consider a claim by the second applicant considered. |
| Federal Magistrates Court Rules 2001 (Cth) Migration Act 1958 (Cth), ss.36, 91R, 424A |
| Dranichnikov v Minister for Immigration (2003) 197 ALR 389 Htun v Minister for Immigration [2001] FCA 1802; (2001) 194 ALR 244 NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 SZLGF v Minister for Immigration [2008] FCA 1369 SZLGF v Minister for Immigration [2009] HCASL 14 SZOVB & Ors v Minister for Immigration & Anor [2011] FMCA 394 |
| First Applicant: | SZQAS |
| Second Applicant: | SZQAT |
| First Respondent: | MINISTER FOR IMMIGRATION & CITIZENSHIP |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 475 of 2011 |
| Judgment of: | Driver FM |
| Hearing date: | 20 July 2011 |
| Delivered at: | Sydney |
| Delivered on: | 31 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr G Johnson SC |
| Solicitors for the Applicant: | Fragomen |
| Counsel for the Respondents: | Ms R Graycar |
| Solicitors for the Respondents: | Clayton Utz |
ORDERS
The further amended application filed in court by leave on 20 July 2011 is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG 475 of 2011
| SZQAS |
First Applicant
SZQAT
Second Applicant
And
| MINISTER FOR IMMIGRATION & CITIZENSHIP |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction and background
It is common for several members of a family to apply for a protection visa. Frequently in such cases the relevant protection visa claims will be made by one member of the family group and the other members will apply simply as members of the family group. The question in this case is whether the Refugee Review Tribunal (“the Tribunal”) erred by not considering claims by the second applicant (who applied only as a member of the first applicant’s family) in circumstances where the fear of harm claimed by both applicants extended to the second applicant as well as the first.
The application before the Court is to review a decision of the Tribunal made on 17 February 2011. The Tribunal affirmed a decision of a delegate of the Minister not to grant the applicants protection visas. The applicants are from Bangladesh. The following statement of background facts is derived from the submissions of the parties.
The applicants are citizens of Bangladesh.[1] The first applicant arrived in Australia on 3 March 2010 and the second applicant on 8 February 2010, both on class TR subclass 676 visitor visas.[2] They lodged an application for protection visas on 5 March 2010.[3] The second applicant made his application as a member of the first applicant's family unit.[4] He did not make any separate claims for protection.[5]
[1] Court Book (CB) 152, [160].
[2] CB 71.
[3] CB 1-30.
[4] CB 25-30.
[5] CB 152, [161].
In her application for a protection visa, the first applicant claimed to fear persecution because she is a woman in Bangladesh, who has suffered physical and psychological abuse at the hands of fanatical males in her family because of her lifestyle.[6]
[6] CB 17-20.
The first applicant was invited to attend an interview with a delegate on 16 August 2010,[7] which she attended.[8]
[7] CB 36.
[8] CB 75.
On 2 September 2010, the delegate rejected the applicant's protection visa application as the delegate found that the first applicant does not have a genuine fear of harm and that there is not a real chance of persecution occurring.[9]
[9] CB 83.
On 21 September 2010, the applicants lodged an application for review with the Tribunal.[10] The first applicant was invited to appear at a Tribunal hearing to be held on 1 December 2010,[11] which she failed to attend.[12] The hearing was rescheduled for 7 January 2011[13] and the first applicant attended and gave further oral and documentary evidence.[14]
[10] CB 85-88.
[11] CB 96-98.
[12] CB 99.
[13] CB 99-100.
[14] CB 101-114.
The first applicant, in her evidence to the Tribunal, stated that the following facts form the basis of her fear of persecution:
a)she suffered mental and physical abuse from her family throughout her childhood because she asserted her independence;
b)when she was 18 years old, she refused to partake in an arranged marriage organised by her family. At this time she went to live with her maternal uncle who proposed she marry another man. The first applicant agreed, the marriage was registered and she moved into the home of her husband's family;
c)while living with her husband's family, the first applicant continued to suffer mental and physical abuse from both her family and her husband's family, who wanted the couple to divorce;
d)she fears returning to Bangladesh because she will suffer social ostracism, cruel treatment and torture from fanatical male family members; and
e)she is not able to hide from her family in Bangladesh because it is a small country and several of her relatives are very influential people who would easily find her.[15]
[15] CB 127-148, [19]-[144].
Tribunal's decision
The Tribunal had regard to the Department's file relating to the applicants,[16] the applicants' oral evidence at the hearing,[17] documents provided to the Tribunal in support of the first applicant's claims[18] and independent country information.[19]
[16] CB 127, [19].
[17] CB 133-147, [47]-[141].
[18] CB 132-133, [41]-[46].
[19] CB 148-152, [145]-[159].
The Tribunal rejected the first applicant's claims relating to mental and physical abuse by her family and her husband's family on the basis that the inconsistencies throughout her evidence reflected adversely on her credibility.[20] It further found the first applicant's claim that she fears her family will pressure the applicants to divorce if they return to Bangladesh is unfounded, as any pressure exacted in the past has not been successful and there is no reason to consider it would be successful in the future.[21]
[20] CB 155-156, [172].
[21] CB 157, [179].
The Tribunal considered the material submitted by the first applicant with respect to the plight of women in Bangladesh and the government's failure to prosecute those engaged in anti‑Ahmadi violence. It found that this material did not address the specific claims made by the first applicant and was irrelevant.[22]
[22] CB 157-158, [181].
The Tribunal noted that the application for protection is made on the basis of the first applicant's claims. However, the first applicant's unfamiliarity with her application and supporting documentation led the Tribunal to conclude that the application for protection was driven by the second applicant, who had no claim for protection independent from the first applicant.[23]
[23] CB 157, [180].
The Tribunal accepted that Bangladesh is a patriarchal society where women are discriminated against in many areas.[24] It also accepted the first applicant's claims that she lacked independence and freedom as a child, but did not accept that her experiences while living at home as a child, or those experiences cumulatively, amounted to “serious harm”.[25]
[24] CB 154, [169].
[25] CB 154, [170].
The Tribunal noted the first applicant's evidence with respect to why she wanted to live in Australia. It accepted this evidence but concluded that the applicants came to Australia for financial betterment, rather than a fear of persecution in Bangladesh.[26]
[26] CB 158, [182].
Overall, the Tribunal found that the first applicant does not have a well‑founded fear of persecution for a Convention-related reason.[27] It was not satisfied that the applicants are persons to whom Australia has protection obligations under the Convention.[28]
[27] CB 159, [189].
[28] CB 159, [190].
The judicial review application
These proceedings began with a show cause application filed on 16 March 2011. An amended application was filed on 9 May 2011 which raised the following grounds:
1. The Refugee Review Tribunal failed to give any weight to the relevant documents those focused my claims.
Particulars:
A. The Tribunal did not put any weight to the documents which I submitted before the Tribunal in support of my claims that:
i. A copy of statement from Mr Ziaul Haque Milon;
ii. A copy of statement from Mr Md Anarul Haque; and
iii. A copy of statement from Mr Md Abdur Razzak Rubel.
2. The Refugee Review Tribunal did not comply with s.424A of the Migration Act 1958 before to make the following comment.
Particulars:
A. The Tribunal did not asked from me any oral or written comment about its following finding that:
i) Marriages in Bangladesh are usually arranged by relatives and there may be little chance for young women to refuse to marry in Bangladesh.
3. The Refugee Review Tribunal’s decision was contradictory on the issue of credibility.
Particulars:
A. The Tribunal’s decision was contradictory on the issue of credibility that:
i) On the one hand the Tribunal accepts that Bangladesh is a patriarchal society and the women are discriminated against in many areas.
ii) On the other hand the Tribunal was in view that the Newage articles and the IRIN Asia website articles (those mentioned about women’s discrimination) were not relevant to my situation and did not support my application.
I dealt with that application on an interlocutory basis on 2 June 2011. Relevantly, and pursuant to rule 44.12(1)(b) of the Federal Magistrates Court Rules 2001 (Cth) (“the Federal Magistrates Court Rules”) I ordered the Minister to show cause why relief should not be granted in relation to ground 1 in that amended application. I saw no merit in the remaining grounds.
Notwithstanding that order, and consistently with communication between the parties, counsel for the applicant sought and was granted leave at the trial of this matter on 20 July 2011 to file and rely upon a further amended application. The further amended application raised the following grounds:
1. The Tribunal committed jurisdictional error by misconstruing or misapplying s.91R of the Migration Act 1958 (Cth).
Particulars
a. Among other things, the Tribunal accepted the first applicant’s claims that “her parents did not give her freedom”, kept “her inside the house”, “did not let her speak [freely]”, “forced [her] to pray and wear hijab”. [170] of Tribunal decision.
b. However, the Tribunal did “not accept that any of these things … or them cumulatively amount to serious harm”.
2. The Tribunal committed jurisdictional error by failing to consider the second applicant’s claims.
Particulars
a. At the hearing held by the Tribunal, the second applicant claimed that the applicants “will be killed” if they return to Bangladesh: [126] of Tribunal decision.
b. In response to the Tribunal’s question as to why this would occur the second applicant stated “they want him to divorce the applicant. They want him to marry someone else. They want him to marry a cousin”.
c. Later in the hearing the Tribunal asked the applicants “if there was any thing else they wish to say before the hearing closed”: [139] of the Tribunal decision.
d. In response the second applicant said that “If they returned something would happen to them, and they would not be able to live any longer”. [140] of the Tribunal decision.
e. By failing to consider the second applicant’s claims the Tribunal fell into jurisdictional error.
Only the second ground was pressed. I heard the matter on the basis that the only issue for the Court to resolve was ground 2 in the further amended application.
Submissions
The applicants contend that the second applicant had advanced a clearly articulated claim on his own behalf which the Tribunal failed to consider. Relevantly, counsel for the applicant submits:
In its “FINDINGS AND REASONS”, with regards to the Second Applicant the Tribunal states[29]:
[29] CB 152.
161. The second applicant confirmed during the hearing that he does not make separate claims for protection. He told the Tribunal that he applied as member of his wife’s family unit.
The Tribunal did not deal any claims of the Second Applicant to (directly, in his own right) fear harm, including death – notwithstanding that such claims were in fact made by him and in what was said by others (as indicated above).
Any assessment by the Tribunal as to the application of s 36(2)(a) was with respect to the First Applicant’s claims and was driven by the Tribunal’s assessment of her credibility. The Tribunal does not address the Second Applicant’s claims (in terms of his credibility, or otherwise).
The claims of direct fear of persecution by the Second Applicant that needed to be dealt with were:
a.in the primary visa application, the First Applicant claimed that the Second Applicant was subjected to pressure as a result of his marriage to the First Applicant. The Second Applicant’s family and his in-laws did not allow for him to have a normal relationship with the First Applicant, spreading “propaganda” about him and subjecting him to forced Islamic sermons[30];
[30] CB 17.
b.at the interview conducted by the Delegate, the First Applicant claimed that as a result of marrying against the wishes and outside the knowledge of his family and his in law’s, the Second Applicant had “suffered physical and verbal abuse and [was] under constant pressure to divorce”, he was “ostracised”[31];
[31] CB 77, see also CB 130-132.
c.in a statement provided to the Tribunal, the First Applicant claimed that the Second Applicant “tolerated” much but could not “bear those sufferings anymore”, that he was denied protection / assistance by the police, that he had been tracked down by his family and in-laws and subjected to forced Islamic sermons as well as pressure to leave Dhaka[32];
[32] CB 102.
d.in a statement provided to the Tribunal, an uncle of the First Applicant stated that the Second Applicant fled to Australia to “to get rid from the hell like torture to save [himself]”[33];
[33] CB 104.
e.in a statement provided to the Tribunal by another uncle of the First Applicant, it was claimed that the Second Applicant fled to Australia to escape torture and would “be killed” if he came back to Bangladesh[34];
[34] CB 105, see also CB 133[44].
f.in a statement from his brother, it was claimed that the Second Applicant escaped torture and hardship and would “certainly” be killed if he returned[35].
Each of the above claims was also put forward for the First Applicant.
In addition to the above claims, at the Hearing held by the Tribunal, a specific claim was put forward for the Second Applicant, who “told the Tribunal that his brother who has been helping him has told him that if they return to Bangladesh they will be killed”[36]. The Second Applicant explained this in three separate ways, which the Tribunal paraphrased as follows: “they want him to divorce the [First] applicant. They want him to marry someone else. They want him to marry a cousin”[37].
This claim was different to the claims set out above. Not only was it advanced directly by the Second Applicant (rather than in other material before the Tribunal, or on his behalf), and made in his own right, but the claim of a fear of death for not marrying his cousin had not been previously advanced in this direct manner.
As noted above, the Tribunal did not further question the Second Applicant in this regard, though it did discuss other matters with the Applicants.
Also, close to the conclusion of the Hearing[38]:
140. The Tribunal asked the applicants if there was anything else they wish to say before the hearing closed.
141. The second applicant said that he wished to stay together in Australia. If they returned something would happen to them, and they would not able to live any longer. [emphasis added]
[35] CB 106, see also CB 133[45].
[36] CB 145[126].
[37] CB 146[127].
[38] CB 147.
Again, the Tribunal does not appear to have further discussed, or considered, this.
These claims were not met by any assessment of the First Applicant’s credibility. Nor were they all met by the finding made by the Tribunal that it did not accept the First Applicant’s claim that she fears that her family or in-laws will pressure them to divorce[39].
[39] CB 157 [179]; CB158 [184].
In this case, the Tribunal was reviewing a decision in which the Delegate had apparently appreciated that both Applicants had their own claims. The Delegate stated: “I find it implausible that if the applicant wife was the one at most risk of serious harm at the hands of her and her husband’s families, that the applicant husband would be the one to depart the country first”[40].
[40] CB 82.
The Tribunal, however, seems to have clearly decided the matter upon the incorrect premise that only the First Applicant claimed to fear persecution in her own right. That is supported by:
a.the failure of the Tribunal in its findings and reasons to deal with the Second Applicant’s claims;
b.the way in which the Tribunal noted (at CB152 [161]) the Second Applicant’s initial indication at the Hearing that he made no claims of his own, without qualifying that by any statement that such claims were in fact made by him;
c.the terms CB 156-157[178], to the extent that they suggest only the First Applicant was “the person claiming to face persecution”;
d.the Tribunal’s statement at CB157[180] that “the application for protection is made upon the basis of the applicant’s claims”, which, in context, is a reference only to the claims of the First Applicant.
The claims which the Tribunal has failed to deal with were made by or in relation to the Second Applicant in his own right[41] and were not ones that simply related to “whether or not [he] was the spouse of the first [Applicant]”[42] in the sense of being a member of her family unit.
Though completing the wrong form, the Second Applicant did (through the First Applicant and otherwise) advance refugee claims to the Department. In any event, there is “no reason that the [Second Applicant’s] original basis for the application could not be changed to a claim to refugee protection in the [Second] applicant’s own right”[43].
By making a decision without considering all of the claims advanced, the Tribunal failed “to complete the exercise of jurisdiction embarked on”[44]. The claims in question were ones that it was jurisdictionally obliged to consider, applying the principles in NABE v MIMIA (No 2) (2004) 144 FCR 1 at [55]-[63] and [68].
[41] SZOVB & Ors v Minister for Immigration & Anor [2011] FMCA 394 at [51].
[42] SZOVB & Ors v Minister for Immigration & Anor [2011] FMCA 394 at [52].
[43] SZOVB & Ors v Minister for Immigration & Anor [2011] FMCA 394 at [54].
[44] Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244; [2001] FCA 1802 at [42] per Allsop J.
Counsel for the Minister made the following submissions bearing upon the issue to be resolved:
It has not been contended that the Tribunal’s reasons for decision do not accurately represent how the Second Applicant’s claim was dealt with.[45] Rather, the claim appears to be (though not expressly articulated in this manner) that the Tribunal was obliged, by virtue of s 414 of the Act to consider whether the Second Applicant had a separate basis for claiming a protection visa “in his own right” (see Applicants’ submissions at [35], referring to the decision in SZOVB at [51]).
[45] There is no evidence to that effect, and no transcript has been sought/provided.
There is no dispute that the Second Applicant did not independently complete a claim for a protection visa and that instead, his claim was made by reference to his membership of the First Applicant’s family. That in itself would not, according to Nicholls FM in SZOVB at [51]-[53], be fatal to this ground of review if the Second Applicant had in fact made a claim for a protection visa in his own right.
This makes it necessary to consider what if any claim was made by the Second Applicant (and indeed by the First Applicant) in this case.
While the First Respondent agrees with the Applicants that some of the issues raised by the First Applicant, both before the delegate and at the Tribunal hearing, related to her marriage to the Second Applicant, the First Respondent does not agree that the Second Applicant had a separate claim in his own right, as the 2nd, 3rd and 4th Applicants in SZOVB were found to have.
Leaving aside matters of evidence, the critical difference between the cases concerns the ground on which the claim for protection was made. In SZOVB, the claim was that the Fijian applicant had a well founded fear of persecution on the basis of being married to an Indian Fijian, and that claim also applied to the husband and the children. By contrast in this case, the First Applicant has relied on her gender as the basis for which she claimed to have a well founded fear of persecution[46] (though she also claimed to be the victim of fanatical religious pressure from her Islamic family).
[46] CB 153 at [165], referring to her submissions dated 12 August 2010.
On this basis, it is difficult to identify the substantive basis for the Second Applicant’s independent claim, though it might be inferred that he might fear persecution on religious grounds.
In any event, in SZOVB, while the Tribunal found that the 2nd, 3rd and 4th Applicants did in fact have claims for protection in their own right, the application for judicial review was unsuccessful as it was not established that the Tribunal committed any jurisdictional error in dealing with those claims. In this case, there is no doubt that the Second Applicant was given an opportunity to articulate any additional or independent claim that he had at the hearing (though he had not done so prior to the hearing, unlike the 2nd, 3rd and 4th Applicants in SZOVB who had each provided statements in support of their claims).
That the Second Applicant had this opportunity is made clear by the Tribunal at a number of points in its reasons for decision. These include:
a)At CB 127 [20] where it is noted that the Second Applicant applied for protection on the basis of being a member of the applicant’s family unit (and see also the discussion of s 36(2)(b) of the Act at CB 125 [7])
b)At CB 133 [48] where the Tribunal stated:
The second applicant confirmed to the Tribunal that he did not make separate claims for protection. He applied as a member of his wife’s family unit. He said that he would give evidence in support of his wife’s claims
c)At CB 138-139 [85]-[92], the Tribunal appears to have canvassed with the First Applicant a number of matters to do with the Second Applicant, his family, and their respective travel to Australia.
d)At CB 145 [126]-[128], the Tribunal considered claims/evidence by the Second Applicant and noted in [126] that it had asked the First Applicant not to whisper to the Second Applicant, presumably while the Second Applicant was giving evidence. In particular, he was asked about his claims that he had been told by his brother that they would be killed if they returned to Bangladesh.
e)At CB 147 [140] the Second Applicant is quoted as saying that he wished to stay together (presumably with his wife) in Australia and that something would happen to them if they returned to Bangladesh.
f)At CB 152 [162], the Tribunal noted that “[t]he second applicant confirmed during the hearing that he does not make separate claims for protection. He told the Tribunal that he applied as member of his wife’s family unit. The applicants presented as a couple during the hearing”.
It is clear from the extracts above that the Second Applicant consistently stated as his position at the Tribunal hearing that he relied on the First Applicant’s claim and that his claim was made on the basis of membership of her family.
By suggesting that the Tribunal should have independently explored with the Second Applicant any claim he might have had in his own right, the Applicants appear to be suggesting that the onus is on the Tribunal to find a case that is not put by the Applicants and to consider, once identified by the Tribunal, any possible claim that might exist on the part of any Applicant. While it is clear that a Tribunal will commit jurisdictional error by failing to deal with a claim as put by an applicant[47] – which is what the Full Federal Court found had happened in Htun, referred to by the Applicants in their submissions at footnote 41 - this case is quite distinguishable.
In NABE v MIMIA (No 2), also referred to by the Applicants at [37], the Full Federal Court said “A judgment that the Tribunal has failed to consider a claim not expressly advanced is … not lightly to be made” and the claim to that effect was dismissed by the Court in that case, even though it was clear that there had been an “unfortunate factual error” which had contributed to an adverse finding about credibility. Notwithstanding that error, the Full Court held that there had been no jurisdictional error in failing to consider what it described as the ‘unexpressed claim’.[48]
In this case, not only was there no independent claim identified by the Second Applicant (which contrasts with the decision in SZOVB, where the family member applicants had provided statements of their own), there is no particular ground of persecution identified by the Second Applicant, beyond that claimed by his wife.
It is for that reason that no error was made by the Tribunal in rejecting the Second Applicant’s claim after rejecting the First Applicant’s claim that “she fears that her family or in-laws will pressure them to divorce” (cf Applicants’ Submissions, at [32]). (emphasis added)
[47] See for example, the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088.
[48] NABE v Minister for Immigration (No 2) (2004) 144 FCR 1 at [68] (Black CJ, French and Selway JJ).
Consideration
It is necessary to consider first what claims were advanced by the applicants in writing and orally. The protection visa application made on 5 March 2010 was a joint one with the second applicant claiming as a member of the family of the first applicant.
In the application the first applicant provided a number of reasons for having left Bangladesh[49]:
[49] CB 17.
a)she suffered torture and humiliation since childhood;
b)her family put pressure on her to follow Sharia law - asking her to pray five times a day, forcing her to wear hijab (head covering) and attend Islamic educational institutions (madrasah);
c)where she opposed her family, they beat her mercilessly and did not feed her;
d)when she failed year five, her family tortured her and then stopped her from studying;
e)her family did not give her the opportunity to see the outside world;
f)when she turned 18, her family asked her to marry an Islamic minded male;
g)hating Islam and Islamic minded males, she declined the marriage proposal – as a result her family “confined” her at home;
h)later with the assistance of her uncle she married the second applicant;
i)the second applicant’s family refused to accept her, as the marriage had occurred without their consent – they insulted her and she had to follow their orders “just like a slave”;
j)initially unable to afford a separate home, the applicants lived with the second applicant’s family.
In addition to the above the first applicant provided the following additional reasons for departure from Bangladesh which reasons are directly relevant to both applicants[50]:
a)after living with the second applicant’s family for some time, with the help of an uncle of the first applicant who resided in Malaysia, the second applicant started a garment business;
b)this allowed the applicants to move to a separate house;
c)“our relationship … never became normal with my family and my husband’s family. They never came to us and they spread propaganda to all of our relatives that we were not follower of Islam. Time to time they sent to our house Islamic Imam who lectured us about Quran and Sunna. We felt very insulted about their conduct.” [emphasis added]
[50] CB 17
It is apparent that those written claims asserted a fear of harm by both applicants although the claims were made by the first applicant alone. There is a question whether the second applicant should be taken to have made claims after having completed the form 886D,[51] intended for members of a primary applicant’s family unit who are included in the visa application but do not have their own claims to be a refugee (as opposed to form 866C, intended for family members making their own claims to be a refugee). In my view, as a general principle, whether a claim is made by an applicant is a question of fact to determine from what is said and written, rather than from what form is used.
[51] CB 25-30.
The Minister’s delegate interviewed the first applicant on 16 August 2011[52]. The delegate’s decision record indicates that, at this interview, the first applicant “re-affirmed her claims”[53]and provided the following further information[54]:
a)“when she [the first applicant] refused to participate in an arranged marriage she was confined to the house and her leg was burnt by her father”; and
b)“when she … married against the wishes and outside the knowledge of her and her husband’s [the second applicant’s] families, as a result of which she and he[r] husband have suffered physical and verbal abuse and are under constant pressure to divorce.” – they were “ostracised”.
[52] CB 36.
[53] CB 75.
[54] CB 77, see also CB 130-132.
On 2 September 2010 the delegate refused to grant protection visas to the applicants[55]. As noted above the delegate’s decision, among other things, sets out claims presented on the second applicant’s behalf. Balancing their competing needs to leave Bangladesh the delegate states:
I find it implausible that if the applicant wife was the one at most risk of serious harm at the hands of her and her husband’s families, that the applicant husband would be the one to depart the country first[56].
[55] CB 66-83.
[56] CB 82.
The following comments in his decision record, are further indicative of the consideration given by the delegate to the second applicant’s need for protection[57]:
[57] CB 82-83.
I believe that the marriage between the applicant husband and wife was most likely sanctioned by both families and that there is no reason that neither the applicant husband or wife have come to any serious harm in the five years since their marriage and they were able to live in the applicant’s husband’s family home for a period of three years. I believe, based on the evidence presented … the purpose of their coming to Australia is in search of economic opportunity or betterment.
…
… I note that for the five years since their marriage, the applicant’s [sic] have lived in the home of the applicant’s husband’s family for three years and then at their own house … at an address known to both their families. Given that they did not come to any harm in these circumstances, I am of the opinion that if they were at risk of serious harm they could easily have relocated … where they could not be located by their families. [emphasis added]
The delegate disposed of the second applicant’s visa application in the following way:
As I have refused to a Protection visa to [the first applicant], I also refuse to grant a Protection visa to [the second applicant], who is a member of the family unit included in this application[58].
[58] CB 83.
In a written statement provided to the Tribunal, the first applicant restated the applicants’ claims. She referred to her family physically punishing her (including burning her leg), not giving her food and locking her up. She also referred to problems with the second applicant’s family and difficulties experienced by both applicants, stating[59]:
We tolerated everything cause we dont [sic] have any money. But we couldn’t bear those sufferings anymore … and we moved to DHAKA…
We went to police station for help and they told its your family problem and you guys fix that within your family.
… when our family traced our position they sent IMAM … to us to give us the [I]slamic knowledge. But when we refused that then our family came to us and do the same thing they used to do before. They gave us pressure to take us from [D]haka. [emphasis added]
[59] CB 102.
The applicants were invited to appear before the Tribunal[60]. Both accepted this invitation and offered a witness (Md Ziaul Haque Milon) being the first applicant’s uncle) who would provide: “Information about [their] marriage. How it occurred and subsequent persecution…”[61] A written statement provided to the Tribunal from this witness (from which the Tribunal declined to receive oral evidence) referred to the applicants fleeing to Australia: “to get rid from the hell like torture to save themselves from that kind of torture”[62] [emphasis added].
[60] CB 91.
[61] CB 95.
[62] CB 104.
The applicants also provided the Tribunal with statements from:
a)another uncle of the first applicant which similarly referred to the applicants fleeing to Australia to escape torture, noting that “If they come back again to Bangladesh they will be killed by their family members”[63]; and
b)the second applicant’s brother, stating: “After they left our residential station and lived in Dhaka they could not escape torturing of the family members. Our family members and the family members of the [first applicant’s] fathers in law’s [sic] house used to go to Dhaka and torture them. Being unable to indure [sic] such hardship they fled away … If they come back to this country again their family members will certainly kill them.” [64] [emphasis added]
[63] CB 105, see also CB 133[44].
[64] CB 106, see also CB 133[45].
As previously noted, the Tribunal conducted a hearing on 7 January 2011.[65] At the start of that hearing, the second applicant apparently stated that he:
… did not make separate claims for protection. He applied as a member of his wife’s family unit. He said that he would give evidence in support of his wife’s claims[66].
[65] CB 99.
[66] CB 133 [48].
Nevertheless, in giving evidence, the second applicant asserted a joint fear of harm. Relevantly, he:
…told the Tribunal that his brother who had been helping him has told him that if they return to Bangladesh they will be killed[67].
[67] CB 145 [126.]
The Tribunal, in its reasons, stated at [126]:
(At this point the Tribunal requested the applicant not to whisper to the second applicant.) The Tribunal expressed surprise at this claim. The Tribunal asked why this would happen in the future when presumably there had been ample opportunity for the family to have done so in the past. It noted that he and the applicant had been living with his family for three years. Also they had been living in Dhaka and his family had apparently visited him. The Tribunal asked why would it be that they now suddenly wanted to kill the applicant and him now.
It appears that the first applicant then intervened to speak on behalf of the second applicant. The Tribunal records at [127] of its reasons[68]:
The applicant said that they want him to divorce the applicant. They want him to marry someone else. They want him to marry a cousin.
[68] CB 146.
Before concluding the hearing the Tribunal asked the applicants if there was anything else they wished to say before the hearing closed. The Tribunal records in its reasons at [140]:[69]
The second applicant said that he wished to stay together in Australia. If they returned something would happen to them, and they would not be able to live any longer. They want to live together in Australia.
[69] CB 147.
In its findings and reasons at [161][70] the Tribunal noted that the second applicant had confirmed during the hearing that he did not make any “separate” claims for protection. He told the Tribunal that he applied as a member of his wife’s family unit. The Tribunal accepted that the applicants presented as a couple and that the second applicant is a member of the first applicant’s family unit. The Tribunal then proceeded to consider the first applicant’s claims and accepted some of them. However, the Tribunal had credibility concerns about the first applicant’s evidence. Importantly, at [175] of its reasons[71] the Tribunal states:
Central to the applicant’s claims is the treatment she has received and will receive from the fanatical male members of her family. During the hearing she claimed and confirmed that her older brother and father engaged in this treatment. However, the applicant claimed on the PVA to have two younger brothers. When this inconsistency was pointed out to her, she claimed that they were close in age. However, there is five years difference between them. The applicant also claimed that she did not understand that when she was being asked about her brothers. She said that she had just said she had two younger brothers. The Tribunal reminded her that she had told the Tribunal (and confirmed) that she had an older brother and a younger brother. The applicant said that she refers to her younger brother as her older brother as he is elder to her in every way regarding studies, physical behaviour and other activities. However, the Tribunal considers that at the time that the applicant was living at home and both she and her younger brother were children, the five year difference would have been significant. (He may be taller and better educated now but this would not have been the case throughout their childhood). The Tribunal considers that the applicant described her younger brother as her older brother because she wished to strengthen claims that her father and brother tortured her when she lived at home. The Tribunal considers that the applicant’s evidence on this issue reflects adversely on her credibility generally.
[70] CB 152.
[71] CB 155-156
The Tribunal went on to deal with further credibility concerns about aspects of the first applicant’s evidence and stated at [179] and [180]:[72]
The applicant claims that she fears that her family and her in-laws will pressure the applicants to divorce. However, the Tribunal does not accept this claim. Any pressure exacted in the past has not been successful. There is no reason to consider it would be successful in the future. The applicant is now an adult and has been an adult during the five years that she has been married to the second applicant. They resisted the pressure to divorce even while living with her in-laws for three years. After that time they lived independently in Dhaka from either family for two years. They have support of at least some family members (the applicant’s uncle and the second applicant’s brother).
Although she has had limited education the applicant claims that she is literate. She claims that she wants to be free. She claims that she is independently minded and wants to live independently. She opposes male orders. She does not want to be a slave to a man. She does not like the way women are subordinate to men in Bangladeshi and Muslim society. She admires the writer, Ms Nasrin because she is independent and has always been independent. Given these claims, and also that the applicant states that she reads and writes English (albeit “not too much”), the Tribunal finds it incongruent that she played no part in the preparation of the visa application to come to Australia; she told the Tribunal that she did not know the reason that had been provided in that application for the visit. She explained this on the basis that everything was done by her husband. She also claimed that her husband through his friend organised the translations and witnessing of the PVA. In explaining why the second applicant came to Australia before her, the applicant said that she was female and she would not know where to go and what to do. The application for protection is made on the basis of the applicant’s claims. However, given her evidence about her role and her perception of her role, together with her unfamiliarity with the articles that were submitted to support her application (she said that she did not know what sort of articles have been submitted) the Tribunal considers that the PVA has not been initiated and driven by the applicant. The Tribunal considers that the application is driven by the second applicant.
[72] CB 157
After dealing with further detail of the first applicant’s evidence, the Tribunal made the following findings at [184]:[73]
Given the concerns outlined in the previous paragraphs the Tribunal finds that the applicant is not credible in her material claims, and that she has embellished her claims for protection. It does not accept that she was beaten or tortured by her parents or her brother. It does not accept that she married the second applicant without either family’s approval. It does not accept that she reported her claims to the police in Rajshahi, or anywhere else in Bangladesh. It does not accept that her claim that she has no family support, particularly so as this is inconsistent with her claims about her uncles’ and brother-in-law’s support. It does not accept that she was ever in fear of losing her life. It does not accept that she suffered severe physical and psychological abuse from fanatical males of her husband’s and her own family because of the way she lives her life. It does not accept that the applicants would be searched for, or would be killed by their family or in-laws or anyone acting on their behalf if they were to return to Bangladesh. It does not accept that her family have or will pressure her to divorce the second applicant and marry a Mullah. It does not accept that her in-laws pressure the applicants to divorce or that her mother-in-law and the wives tortured her by catching hold of her hair. It does not accept that her in-laws arranged for an Islamic Imam to visit the applicants to lecture about the Quran and Sunna. It does not accept that to get away from the ostracism the applicant settled overseas. It does not accept that she would face ostracism on her return to Bangladesh. It does not accept that if she will not follow the Islamic tradition and she will be targeted and killed straight away. It does not accept that the applicants went to India, Singapore or Malaysia because of their claims of what happened in Bangladesh and because they wanted to see if they could stay there.
[73] CB 184.
I accept that the Tribunal is bound to consider a claim clearly articulated by an applicant or one which squarely arises from the material before the Tribunal. The Tribunal did not, in its reasons, deal expressly with the separate claim said to have been articulated by the second applicant. Neither did the Tribunal deal expressly in its reasons with the position of the second applicant, to the extent that the first applicant made claims on his behalf.
In Htun v Minister for Immigration [2001] FCA 1802; (2001) 194 ALR 244 at 259 Allsop J said at [42]:
The "participation in the Karen community and the political groups" could be said to have been dealt with by the Tribunal dealing with the appellant's activities in Australia. The friendships (of the appellant, as a Karen) with people in organisations such as the KNLA were not. This is not merely one aspect of evidence not being touched. It is not a failure to find a "relevant" fact. The Tribunal failed to address and deal with how the claim was put to it, at least in part. The requirement to review the decision under s 414 of the Act requires the Tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration in the sense discussed in Minister for Aboriginal Affairs v Peko Wallsend [1986] HCA 40; (1986) 162 CLR 24; and Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 180 ALR 1. See also Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247, at [18], [19], [21] and [50]. It is to be distinguished from errant fact finding. The nature and extent of the task of the Tribunal revealed by the terms of the Act, eg ss 54, 57, 65, 414, 415, 423, 424, 425, 427 and 428 and the express reference in Regulation 866 to the "claims" of the applicant eg 866.211, make it clear that the Tribunal's statutorily required task is to examine and deal with the claims for asylum made by the applicant. If there is a sur place claim made in addition to a claim based on conduct or experiences elsewhere both must be dealt with. If the sur place claim is, or is to be seen as, based on more than one foundation - that is, what has been done by way of political activity and also because of friendships made with other Karen people of arguably seriously subversive background, both bases of the claim must be dealt with. The Tribunal did not deal with the latter basis of the appellant's sur place claim based on imputed political opinion. It was not a failure merely to attend to evidence, even probative evidence, and by such route commit a factual error. It was a failure to deal with one part of the claim for asylum on the basis of his imputed political opinion. It is true that when called on at the hearing to articulate orally his fears he did not expressly identify his friendships as distinct from his activities in Australia. However, given the clarity of the expression of this fear in his application for review and the existence of objective material put forward by him to support it, I do not see this basis for the claim as having been abandoned. Conceptually, and in a common sense way, it was quite distinct from his claim based on his activities of the kind referred to earlier.
Further, in Dranichnikov v Minister for Immigration (2003) 197 ALR 389 at [24] the High Court (Gummow and Callinan JJ) stated:
To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice. …
The Full Federal Court (Black CJ, French and Selway JJ) dealt with the issue in NABE v Minister for Immigration (No.2) (2004) 144 FCR 1 at [55]-[63] and [68] where the Court stated:
Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘... a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at 394 [26]):
‘... the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.’
In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the applicant’s submissions – namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the applicant’s membership of the group of ‘businessmen in Russia’ was a reason for his persecution.
The observations cited reflect the general principle that the first task of the Tribunal is to determine whether the applicant’s claims are claims of a well-founded fear of persecution for one of the reasons set out in Art 1A(2) of the Refugees Convention. Those are questions of characterisation which involve in part questions of law. The factual questions that follow are, as in Dranichnikov, whether the applicant has a fear of persecution, whether it is well founded and if so whether the apprehended persecution is for a Convention reason. Those logical steps emerge as necessary elements of the Tribunal’s review function by reference to the nature of the decision it is called on to review. The way in which it discharges that function flows from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word ‘review’.
The nature of the review function was described by Allsop J (with whom Spender J agreed) in Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at 259 [42]:
‘The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act... make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.’
The review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it – Chen v Minister for Immigration and Multicultural Affairs [2000] FCA 1901; (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs [1998] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) [2001] FCA 263; (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised ‘squarely’ on the material available to the Tribunal before it has a statutory duty to consider it – SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 120; (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb ‘squarely’ does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
There is some authority which might be taken to suggest that the Tribunal is never required to consider a claim not expressly raised before it. In SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301, membership of a ‘particular social group’ was put to the Tribunal as a Convention ground for apprehended persecution. The Tribunal was held ‘not obliged to consider whether some other social group might be constructed ...’ at [19]. That decision however turned upon particular circumstances. Its correctness is not in contention here. It does not establish a general rule that the Tribunal, in undertaking a review, can disregard a claim which arises clearly from the materials before it.
In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Court in Dranichnikov v Minister for Immigration & Multicultural Affairs [2000] FCA 1801 at [49] had said:
‘The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.’
His Honour, in our view, correctly stated the position when he said (at [18]):
‘The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.’
This does not mean that the Tribunal is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
In STYB v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 705, Selway J questioned whether the comments made by Merkel J in Paramananthan accurately reflected the position. He said (at [15]):
‘Whether or not those comments were correct when they were made, they may not now accurately reflect the jurisdiction of this Court. That jurisdiction is limited to the identification of jurisdictional errors. The question in this context is whether the Tribunal has made a jurisdictional error in not considering a claim that has not been made. In my view it does not make a jurisdictional error in such circumstances, providing, of course, that it correctly identifies the legal issues relevant to the claim that is made: contrast the majority and minority reasons in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112.’
We are of the view that the observations by Merkel J in Paramananthan, by the Full Courts in Sellamuthu and Sarrazola (No 2) and by Cooper J in SDAQ are consistent with the proposition that the Tribunal is not required to consider a case that is not expressly made or does not arise clearly on the materials before it. The Tribunal’s obligation is not limited to procedural fairness in responding to expressly articulated claims but, as is apparent from Dranichnikov, extends to reviewing the delegate’s decision on the basis of all the materials before it.
Whatever the scope of the Tribunal’s obligations it is not required to consider criteria for an application never made. The application for protection visas by a mother and her children on the basis that they were refugees was not required to be considered as though it were an application in their capacity as the family of a man who had been granted a temporary protection visa – Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte S134/2002 [2003] HCA 1; (2003) 195 ALR 1 at 8-9 [31]- [32]. Gleeson CJ generalised from this, albeit in dissent, in Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 203 ALR 112 at 114 [1]:
‘Proceedings before the tribunal are not adversarial; and the issues are not defined by pleadings, or any analogous process. Even so, this court has insisted that, on judicial review, a decision of the tribunal must be considered in the light of the basis upon which the application was made, not upon an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process.’
It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant’s claim, may be of no consequence to the outcome. It may be ‘subsumed in findings of greater generality or because there is a factual premise upon which [the] contention rests which has been rejected’ – Applicant WAEE (at 641 [47]). But as the Full Court said in WAEE (at [45]):
‘If the tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the tribunal will have failed in the discharge of its duty, imposed by s 414 to conduct a review of the decision. This is a matter of substance, not a matter of the form of the tribunal’s published reasons for decision.’
In that case the appellant, who was an Iranian citizen, put to the Tribunal that the marriage of his son to a Muslim woman in Iran had ramifications for him and his family. The Tribunal made no express reference in its discussion and findings to the claimed fears of persecution which arose out of the marriage by the appellant’s son to a Muslim woman although it made reference to the claim in its overview of the appellant’s case. The Court held that the Tribunal had failed to consider an issue going directly to the question whether the criterion under s 36 of the Act was satisfied. The Court held that the Tribunal had therefore failed to discharge its duty of review and had made a jurisdictional error.
…
Although such a claim might have been seen as arising on the material before the Tribunal it did not represent, in any way, ‘a substantial clearly articulated argument relying upon established facts’ in the sense in which that term was used in Dranichnikov. A judgment that the Tribunal has failed to consider a claim not expressly advanced is, as already indicated in these reasons, not lightly to be made. The claim must emerge clearly from the materials before the Tribunal. In our opinion the judgment that the Tribunal, by reason of the error it made about the appellant’s involvement with PLOTE, failed to consider an unexpressed claim of want of effective State protection against persecution by PLOTE, is not open having regard to the thresholds required for such a judgment by the authorities to which we have referred. This case does demonstrate an unfortunate factual error which, as Tamberlin J found, contributed to the Tribunal’s adverse finding as to credibility and could have affected the outcome of the review by the Tribunal. It did not, however, constitute jurisdictional error in the sense earlier discussed. It was, as the members of the Full Court found on the first occasion, an error of fact within jurisdiction.
This Court dealt with somewhat similar circumstances to the present in SZOVB & Ors v Minister for Immigration & Anor [2011] FMCA 394. In that case at [57] Federal Magistrate Nicholls said:
While the relevant statements in their declarations at that time were inconsistent with the relevant forms completed (“Form D”), what remains is that “refugee claims” were made at the time of the application. It is in that circumstance that Mr Karp’s submission that they should not be penalised for completing the “wrong” form can be understood.
On the facts in that case, the Court found that the Tribunal did address the claims which had been made by the secondary applicants.
The reasoning in SZOVB can be contrasted to that of the Federal Court in SZLGF v Minister for Immigration [2008] FCA 1369[74] at [19]-[22], [36] and [43]-[44] where Graham J said:
This matter is not on all fours with NAEA of 2002 v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 341 (‘NAEA of 2002’), a decision of Gyles J, in which his Honour agreed with a finding of the Tribunal that it had no jurisdiction to hear the application for review in circumstances where the husband, who claimed to be owed protection obligations under s 36(2)(a) of the Act, had died before the Tribunal hearing.
His Honour said at [14]:
‘... it is quite plain that the applicant deliberately applied for a protection visa on the basis that she was a family member of her husband claimant and not in her own right. There is a fundamental difference between the two bases for a protection visa. In my opinion, the Act and the Regulations require separate and specific applications for each. It would not be open for the Tribunal to grant a protection visa to a person who had applied as a family member on the basis that that person was a refugee. ...’
[74] which was distinguished in SZOVB.
His Honour agreed with the reasoning of Kenny J in V120/OOA v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 264; (2002) 116 FCR 576 at [59].
Whilst the facts may not be precisely the same in the present case, the principle which flows from NAEA of 2002 is of equal application in a case where an applicant husband claiming to fall within s 36(2)(a) of the Act fails to satisfy the Tribunal that he comes within the definition of refugee in the Convention.
This case is quite dissimilar from SZGME v Minister for Immigration and Citizenship (2008) 102 ALD 31 (‘SZGME’). In that case, a father, mother and daughter were non-citizens in Australia. The only member of the family who claimed to be a refugee within the meaning of the Convention was the daughter. She ticked the box in the relevant form indicating that she claimed to be a refugee and filled in part C of the form. Her father and mother ticked the relevant questions in part B to indicate that they did not have claims to be refugees but failed to fill in part C or part D. At a later point in time, they completed part C forms, i.e. forms which were to be completed by people who wished to submit their own claims to be a refugee, and sent them to the Tribunal.
…
It may be that the Tribunal failed to differentiate the first appellant from the second appellant in respect to the claims to refugee status. The first appellant was claiming to be a refugee himself, the second appellant was not claiming to be a refugee herself but rather she claimed that her husband was a refugee thus entitling her to a protection visa under s 36(2)(b) of the Act.
…
With great respect to the learned Federal Magistrate, I am unable to see how the Tribunal failed to assess the second appellant’s clam for a protection visa as against the relevant criterion applicable to her. The sole matter that was personal to her was whether or not she was the spouse of the first appellant. The Tribunal clearly addressed this and found that she was. In the circumstances, her claim for a protection visa had to rise or fall with the success of the first appellant’s claim to be a refugee within the meaning of the Convention.
Nothing in the statement that was provided with the Application for Review lodged by the appellants with the Tribunal on 6 June 2007 converted the second appellant’s claim for a protection visa from one made under s 36(2)(b) of the Act into one under s 36(2)(a) of the Act. This case does not fall to be decided by reference to the judgments of the Court in SZGME.
I am unable to distinguish this case from SZLGF and accordingly I am bound by it. Further, the High Court refused special leave to appeal from his Honour’s decision.[75] In this case, as in SZLGF, the second applicant’s only claim was based upon his marriage to the first applicant. He had not made any separate claim of his own. While he gave evidence at the Tribunal of the fear of himself as well as the first applicant, that was a joint concern because of their marriage. Having expressly before the Tribunal disavowed any claim apart from as a member of his wife’s family, the Tribunal had no jurisdiction to consider the second applicant’s evidence as a claim in his own right. Accordingly, when the Tribunal rejected the first applicant’s claim, that of the second applicant fell with it.
[75] SZLGF v Minister for Immigration [2009] HCASL 14.
In any event, in my view in this case the Tribunal did consider the issue of the risk of harm faced by both applicants. In the present case, in my view, the relevant claims relating to the second applicant had been advanced on his behalf by the first applicant. Counsel for the applicants sought to place stress on [127] of the Tribunal’s reasons[76] which, so he submitted, recorded a separate claim made orally at the Tribunal hearing by the second applicant. However, it is clear, in my view, that that statement was not made by the second applicant but, on his behalf, by the first applicant. In my view, all of the claims asserting a fear of harm by the second applicant were made on his behalf by the first applicant. He properly told the Tribunal that he made no separate claims. By that, he meant not that he had no claims at all, but, rather, that all that needed to be claimed had been claimed on his behalf by his wife and he was there simply to give evidence to support those claims. The claims put by the first applicant were that she and her husband would be harmed if they returned to Bangladesh because of familial opposition to their marriage and her anti-religious attitude. Those claims were considered at length by the Tribunal and rejected. It is true that the Tribunal did not include in its reasons a statement like that made by the delegate referred to at [29] above. Nevertheless, on a fair reading, it is in my view clear that the Tribunal, by rejecting the first applicant’s claim of a well-founded fear of harm on her own behalf, was also rejecting the claim insofar as it related to the second applicant.
[76] CB 146.
The Tribunal reasoned that the applicants were engaged in a joint scheme to obtain protection visas that was being “driven” by the second applicant, although the relevant claims were made by the first applicant.[77] In essence, the Tribunal took the view that the protection visa claims had been concocted by the second applicant and that the first applicant had been used as his mouthpiece in order to present those claims. The Tribunal concluded at [190][78] that neither of the applicants is a person to whom Australia owes protection obligations under the Refugees Convention, either under ss.36(2)(a) or (b).
[77] See the Tribunal’s reasons at CB 157 [180].
[78] CB 159.
I conclude that the Tribunal did not overlook any element or integer of the applicants’ claims. I conclude that the Tribunal decision 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 fifty-two (52) paragraphs are a true copy of the reasons for judgment of Driver FM
Date: 31 August 2011
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