SZTPH v Minister for Immigration
[2015] FCCA 258
•10 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SZTPH v MINISTER FOR IMMIGRATION & ANOR | [2015] FCCA 258 |
| Catchwords: MIGRATION – Application for review of decision of Refugee Review Tribunal (RRT) – whether on the material before the RRT there clearly arose a claim based on the applicant being a member of a particular social group – whether the RRT relied on s.91R(3) of the Migration Act 1958 (Cth) (Act) in concluding the applicant did not satisfy s.36(2)(aa) of the Act – no jurisdictional error. |
| Legislation: Migration Act 1958 (Cth), ss.36(2)(a), 36(2)(aa), 91R(3) |
| Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) (2004) 144 FCR 1 NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 SZTDQ v Minister for Immigration & Anor [2014] FCCA 537 SZTDM v Minister for Immigration & Anor (No.2) [2013] FCCA 2060 |
| Applicant: | SZTPH |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | SYG 2988 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 12 June 2014 |
| Delivered at: | Sydney |
| Delivered on: | 10 February 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms T Wong |
| Solicitors for the Applicant: | Gilbert + Tobin |
| Counsel for the Respondents: | Mr P Knowles |
| Solicitors for the Respondents: | DLA Piper Australia |
ORDERS
The application is dismissed.
The applicant pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2988 of 2013
| SZTPH |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
Two questions arise on this application for judicial review. The first is whether there clearly arose on the material before the second respondent (Tribunal) a claim (alleged claim) that the applicant has a well-founded fear of persecution in Bangladesh because she is a member of a particular social group, or there is a real risk she will suffer significant harm because she is a member of that particular social group. The particular social group of which, under the alleged claim, the applicant is said to be a member is women in Bangladesh, single women in Bangladesh, or single women in Bangladesh without male protection.
The second question is, when considering whether the applicant’s claims fall within s.36(2)(aa) of the Migration Act 1958 (Cth) (Act), whether the Tribunal disregarded evidence purportedly in reliance on s.91R(3) of the Act.
There is no issue between the parties that the alleged claim raises an arguable claim for a protection visa under s.36(2)(a) and s.36(2)(aa) of the Act. There is also no issue that the Tribunal did not consider the alleged claim so that, if the alleged claim was clearly before the Tribunal, the Tribunal will have made a jurisdictional error by not considering it. Finally, there is no issue between the parties that the Tribunal will have made a jurisdictional error if, purportedly in reliance on s.91R(3) of the Act, the Tribunal ignored certain evidence when considering whether the applicant was entitled to a protection visa under s.36(2)(aa) of the Act.
The resolution of the first question largely turns on the correct interpretation of the material on which the applicant relies as clearly raising the alleged claim. That will require a close analysis of what occurred at the hearing before the Tribunal. The resolution of the second question turns on the correct interpretation of the Tribunal’s reasons.
My reasons are arranged as follows. First, I set out in broad terms the claims the applicant made that were considered by the Tribunal, and the Tribunal’s reasons for not accepting those claims. Second, I will identify the matters on which the applicant relies for asserting the alleged claim was clearly before the Tribunal. Third, I will consider whether those matters indicate the alleged claim was clearly before the Tribunal. Finally, I will consider whether the Tribunal ignored evidence purportedly in reliance on s.91R(3) of the Act.
The claims considered by the Tribunal
The applicant is a national of Bangladesh.[1] She claimed before the Tribunal that she fears returning to Bangladesh because she and her parents had converted from Islam to Christianity in February 2006.[2]
[1] CB12
[2] CB215, [4]
In her application for a protection visa, the applicant claimed that her father was murdered by two of her uncles because he had converted to Christianity, that she received continuous death threats, that in 2008, after the applicant’s mother died from cancer, one of the applicant’s cousins demanded, under a threat of her being “put . . . down”, that the applicant sign documents.[3]
[3] CB18-21. As recorded in the delegate’s decision, the applicant claimed before the delegate that the applicant’s cousins had visited the applicant’s workplace and asked her how much money she had obtained from her mother because they were after a share of the money the applicant inherited. The applicant further claimed before the delegate that she subsequently paid her cousin a bank draft in the approximate amount of AUD$20,000 because she was scared of being killed (CB84).
The applicant supported her claims before the Tribunal with written submissions prepared by her lawyers.[4] The submissions were prepared after a delegate of the first respondent (Minister) had refused to grant the applicant a protection visa. In those submissions, it was claimed the applicant feared persecution throughout Bangladesh because of her Christian religion, and her membership of a particular social group, namely, Christian converts from Islam.[5]
[4] CB141-155
[5] CB141
One section of the submissions was headed “Relocation within Bangladesh”. It was there submitted that, based on country information, relocation within Dhaka would be unreasonable.[6] It was also submitted that the unreasonableness of relocation within Bangladesh “is magnified due to both of the applicant’s parents being deceased”, and to the fact that the “family that remains in Bangladesh is family from whom she fears persecution”.[7]
[6] CB151, [52]
[7] CB151, [53]
The submission further stated as follows:[8]
We submit that for the following reasons relocation would be unreasonable in the sense that it is not practicable in [the applicant’s] particular circumstances:
a.[The applicant] is a single woman without family support;
b.[The applicant] has had her property taken from her by other members of her family;
c.[The applicant’s] mother and father both died in Bangladesh, the rest of her family are the ones who [the applicant] faces a real risk of persecution from;
d.[The applicant] would need to be constantly moving to avoid her family who wishes to seriously harm her, and
e.due to [the applicant’s] qualifications as a hair dresser the only place where she could reasonably work would be within Dhaka and Dhaka is completely unsafe for her as a Christian and as a member of the particular social group of Christian converts from Islam. Furthermore [the applicant’s] family would find it easy to target her in Dhaka.
[8] CB151, [54]
The Tribunal did not accept the applicant’s evidence. First, the applicant’s evidence in relation to her claimed meetings with her cousin was so inconsistent as not to be credible.[9] Second, the applicant’s evidence before the Tribunal that she had been forced to pay money from her inheritance was not supported by the documents the applicant presented in support of her application for a student visa.[10] Third, the Tribunal found inconsistent and unpersuasive the evidence the applicant gave that she left money with a friend in Bangladesh who absconded with it.[11] Fourth, the Tribunal found the applicant’s evidence regarding her practice of Christianity in Bangladesh to be inconsistent.[12] Fifth, the applicant’s evidence about her claimed baptism was inconsistent.[13] Sixth, the applicant’s evidence concerning the death of her father was inconsistent.[14] Seventh, the Tribunal did not find plausible the applicant’s explanation for not changing her telephone number in the face of death threats the applicant claimed she received from her relatives from 2007 until July 2010 when she left Bangladesh.[15]
[9] CB216, [11]
[10] CB217-218, [17]- [20]
[11] CB218-219, [21]-[22]
[12] CB219, [23]
[13] CB219, [24]
[14] CB219-220, [25]-[28]
[15] CB220, [29]-[31]
The Tribunal also had a number of concerns about the applicant’s evidence of her Christian activities in Australia.[16] First, the Tribunal considered the applicant had given unpersuasive evidence concerning her participation in a university Christian group.[17] Second, the applicant did not begin to attend church in Australia until July or August 2011, even though she had arrived in Australia in July 2010.[18] Third, letters of support from a church dated 1 July 2012 suggested that the applicant had only recently converted to Christianity, and made no reference to the applicant having been a Christian before she arrived in Australia.[19] The Tribunal was not satisfied the applicant had any significant involvement with any church in Australia before 2012. The Tribunal found that “the applicant’s involvement with the Christian churches in Australia was solely for the purpose of strengthening her protection visa application”.[20]
[16] CB221-222, [32]-[38]
[17] CB221, [32]
[18] CB221, [32]
[19] CB221, [35]
[20] CB222, [36]
Material said to give rise to the alleged claim
The applicant does not submit she made the alleged claim in her application for a protection visa, or before the delegate. The applicant submits the claim clearly arose in the course of the hearing before the Tribunal. Because the matters on which the applicant relies occurred in the context of the hearing, it will be necessary to explore in some detail what occurred at the hearing.
The hearing began with the Tribunal member explaining the functions of the Tribunal, the purpose of the hearing, and the meaning of “refugee” and of the complementary protection criteria.[21] After confirming the applicant was a citizen of Bangladesh, and had no right to enter any other country without a visa, the applicant addressed a number of inconsistencies in the applicant’s claims that had been identified by the delegate’s decision, and other matters contained in the delegate’s decision.[22] This part of the hearing concluded with the following exchange:[23]
Member:Is there anything you want . . . to correct? Anything you want to change about what you said previously?
Applicant:Previously to you Member?
Member:No previously to the Department or in your written claims, or anything?
Applicant:Yes that’s what I changed…
Member:Besides bout [sic] what you’ve said?
Applicant:No, that’s fine.
[21] Affidavit of C Goslett-King, 08.04.14, annexure “A” (Transcript), pages 3-6
[22] Transcript, pages 7-20
[23] Transcript, pages 20.9-21.4
After a short adjournment, the Tribunal asked the applicant questions about the applicant’s addresses in Bangladesh.[24] In that context, there appeared what counsel for the applicant described as the first “glimpse” of the alleged claim. It is contained in the applicant’s statement “it is hard to be a single woman of my age in south-east Asian countries especially in Bangladesh”. That statement was made after the applicant gave an answer to a question about how long the applicant lived in a particular property. The relevant exchange is as follows (emphasis added):[25]
Member:Ok. And, and then how long did you live in the next property for? When did you move out?
Applicant:My mother died 16 December 2008 and I lived there for some more months. Most of, some more months, like most of 2009 I stayed there.
Member:That was at [???].
Applicant:Yes. I was living by myself so that was becoming again risky because they could find out the suburb address and all that and they had access to that house, so so that is the reason after that I could not carry on the rent and kept changing my address like lived here or there, like, someone I work with. I, I was, my situation was making me trust people as in I trusted that person Roni. I know, it is hard to be a single of my age in south-east Asian countries especially in Bangladesh and then again I converted so I cannot tell a lot of people at work I could not tell anyone at work that I’m a converted Christian. Because I need a roof or a floor under my feet and roof over my head so I need a secure place. So I was fleeing, I’m not really able to share what my problem is and at the same time I was working at the same time. It was giving my some saving because I’m not renting, that rent is gone because I am living with a friend for a few months. So I’m saving some money at the same time because I know I can’t be like this and I have to move out of the country. That was the time I decided, I was deciding to come to Australia saving money.
[24] Transcript, pages 21.4-24.2
[25] Transcript, pages 23.8-24.2
The Tribunal member then questioned the applicant about the amount of money the applicant required to save to apply for a student visa and her income,[26] when and how the applicant converted to Christianity and what was involved in her conversion to Christianity,[27] how the applicant’s relatives became aware the applicant had converted to Christianity,[28] the frequency with which the applicant and her parents attended church,[29] why the applicant converted to Christianity,[30] the applicant’s church attendance after her father passed away, and the church she attended,[31] the difficulties the applicant’s father and family faced after converting to Christianity,[32] telephone calls the applicant received in relation to her conversion,[33] whether the applicant went to the police,[34] the circumstances of the applicant’s father’s death and the events immediately following his death,[35] what happened after the applicant’s mother’s death, and in particular the applicant’s being approached by relatives in relation to her mother’s estate,[36] and the applicant paying money to her relatives after having signed a document.[37]
[26] Transcript, pages 24.2-25.2
[27] Transcript, pages 25.2-26.2
[28] Transcript, pages 27.2-27.6
[29] Transcript, page 26.6; page 28.3
[30] Transcript, page 28.5
[31] Transcript, page 29.1-30.5
[32] Transcript, pages 30.5-32.7
[33] Transcript, pages 32.7-33.6
[34] Transcript, page 34.2
[35] Transcript, pages 34.3-36.8
[36] Transcript, pages 37.10-38.10
[37] Transcript, pages 38.10-43.8.
After a break the Tribunal questioned the applicant about the applicant’s financial resources after her mother’s death and before the applicant left Bangladesh,[38] why the applicant waited two years after her mother’s death before she left Bangladesh, even though she appeared to have the financial resources to have left Bangladesh earlier than she did,[39] and why the applicant feared her relatives would harm her if she returned to Bangladesh.[40] It is in the context of those questions that the applicant gave further evidence which the applicant claims is relevant to the alleged claim. The relevant evidence on which the applicant particularly relies is in the passages that I have emphasised in bold from the following part of the applicant’s evidence:[41]
Member:. . . . But why do you think they would harm you if you returned now?
Applicant:Because I belong to their blood. That’s what they mentioned several times in certain phone calls to my mother and that’s why even honourable Member, I have even mentioned that we believe that my mum was not in a killing sort of trait or in a persecution trait but I am because I am bloodly, directly bloodly, connected to them. And all these people that have helped me today, I believe, all these people who helped me living one month here, two months there like you know, I got at least 50 co-workers working with me colleagues and all that. So two months here and three months, no one knew that I have devoted my heart and soul to Lord Christ because over there no one would believe me or no one would want to help me, a Christian convert from Muslim, no one would want to help me. I needed a roof. Of course yes you can see that I could have afforded to have rent an accommodation but why I couldn’t, because I wanted to live among people. I was stressed, I was distressed, I wanted to live among people and hide myself somewhere. I cannot leave my job at the same time and seek inner, you know, because Bangladesh is a country it’s a very city based country. One city and the rest of the cities are dead. For a woman like me I won’t be able to survive in any other city. So I have to be there in my job. I know the killers of my father were my own cousins. They would, they know my office, they have already accessed my office. So I was just changing my address and living like that.
Member:You were working at the same workplace during that whole period. So if your cousins or your relatives wanted to harm you, why do you think that they didn’t come to your workplace, or attack you going to or from the work for example?
Applicant:Because my workplace is a situation like you see this building, someone has to have the access to come here, it’s, it’s quite secure. So they have to mention there when they came there once, they had to mention they are my cousin, or they’re my families. So over there, and then I used the public, I didn’t use public transport because in Bangladesh there is a situation of kidnapping from like, a single woman like me, I don’t know honourable Member, like whether I am making things clear or not, a single woman like me, it’s sometimes women get kidnapped and they disappear, their parts of their bodies like kidneys or whatever they get stolen. A lot of things happen there which is not, even close, what is happening in Australia. It’s almost living like hell. Even if they’re not. It’s not about religion. Even if they have not done anything, it’s not a very safe city to live but I was lucky enough because I was doing a supervisor job, I was lucky enough to use the office transport so straight from my, till I lived in that accommodation after my mum died, I know I am more likely to get harmed or anything. Straight from the gate I used to took the office car, driven by an office chauffer, like a driver, and they would pick few other people on the way and we would go straight, dropped in an office like this, it’s quite secure.
[38] Transcript, pages 44.4-46.4
[39] Transcript, pages 46.5-47.5
[40] Transcript, pages 47.5-48.8
[41] Transcript, pages 47.7-48.5
The Tribunal member then noted that the fact that for nearly four years the applicant’s cousins have not taken any steps to harm the applicant raised concerns that the applicant’s cousins do not have a genuine intention to harm the applicant if the applicant were to return to Bangladesh.[42] After the applicant stated that her cousins tried to contact her after she arrived in Australia, the Tribunal member asked why, given that the applicant stated that her cousins were mostly after the property, and the applicant also stated she did not have any property, the applicant’s cousins would still want to harm the applicant.[43] The applicant then gave the following answer:[44]
Because I am Christian. That’s what I, how I wish I could let you know it. Or make you hear those conversations because I am Christian and they consider me, that I am apostate. The exact Bangla translation, like the English translation should be apostate I, they, cannot have a Christian, on their blood, they agree that, a Christian member in the family and I’m pretty sure Honourable Member, you can see because I have read, after coming to Australia, I have read certain newspapers which I have heard because I have detached myself from that world. I don’t mix in the community. I don’t know who will pass, what sort of information because it’s a small country over there. It’s not vast massive like Australia. Small country. Lots of people. So I have seen that Shibir, [Jama], they want to rule the country which is not practically being possible so now they’re attacking the Buddhists, the Hindus and the Christians and Christian minority is 1.2 per cent or may be a little less than 2 per cent in Bangladesh. So even if you relocate me, of course everyone wants to be in their homeland where they’re born and that’s the basic comfort zone so even if you relocate me in a Christian zone, someone like me would not be able to survive. First of all, I am really scared. I don’t have any male guardian. My father has been persecuted. I don’t have a brother. I don’t have a son. I don’t have a husband. . . .
[42] Transcript, page 48.7
[43] Transcript, page 49.4
[44] Transcript, page 49.5
The applicant particularly relies on the passage I have emphasised in bold. The passages I have underlined are passages to which I will refer later in these reasons.
After the applicant stated that she could have easily entered into a “fake relationship” with an Australian citizen, but chose not to because she is a devoted Christian,[45] the Tribunal asked the applicant questions about her baptism,[46] letters the applicant had provided from one church,[47] persons the applicant knows at another church,[48] obtaining letters of support from other church members,[49] the applicant’s current church activities,[50] whether the applicant reads the bible,[51] and differences between the Christian services in Bangladesh and the services the applicant attended in Australia.[52] The Tribunal member then informed the applicant of “the main concerns that I have about your evidence”.[53]
[45] Transcript, page 49.9
[46] Transcript, page 50.1-6
[47] Transcript, pages 50.10-51.9
[48] Transcript, pages 51.10-52.5
[49] Transcript, page 52.6
[50] Transcript, pages 53.1-54.4
[51] Transcript, pages 54.4-55.1
[52] Transcript, pages 55.2-56.4
[53] Transcript, page 56.5
The Tribunal member said that the applicant’s evidence about the interactions the applicant says she had with her cousins was “quite significantly different” between what the applicant included in her application form, what the applicant said to the delegate, and what the applicant said to the Tribunal.[54] Those differences, combined with the financial documentary evidence the applicant provided with her student visa, raised concerns about whether what the applicant claimed occurred in Bangladesh did actually occur. The Tribunal member then noted the two things the member needed to consider. The first was whether the applicant will be harmed by the applicant’s relatives; and the second was whether the applicant “would be harmed on a more broad basis just as a Christian convert from Islam within Bangladesh”, even if the Tribunal did not accept the applicant’s account of what occurred to her in Bangladesh.[55]
[54] Transcript, page 56.5
[55] Transcript, page 56.7
The Tribunal member said that whether or not the Tribunal were to decide that the applicant would suffer harm in Bangladesh because she was a Christian convert would come down to whether the Tribunal were to accept the applicant’s attendance at church in Australia was due to a genuine belief or for the purpose of strengthening the applicant’s application for a protection visa. The Tribunal member then referred to “a provision in the Australian migration law” which requires the Tribunal member to inquire why the applicant undertook activities in Australia to the effect that, if the Tribunal member forms the view that the applicant attended church “because of your protection visa application then I would be required to disregard it in assessing whether or not you are a refugee”.[56] The Tribunal member then asked whether the applicant wished to say “anything about that”.[57] The applicant responded with a lengthy answer in which she stated she believed “there are massive differences between the first interview, the written and today” because she had not read what she had written and because she was stressed.[58]
[56] Transcript, pages 56.8-57.1
[57] Transcript, page 57.2
[58] Transcript, page 57.3
After the Tribunal member informed the applicant that the Tribunal would be providing a letter to the applicant inviting her to make comments about various documents, and after some discussion between the member, the applicant, and the applicant’s representative about responding to the letter, the applicant made the following statement:[59]
Thank you. And lastly honourable member, I don’t know how much you know about the south-east Asian countries and a single woman like me and I got no one I don’t know how much you believe that my parents are no longer, my father has been persecuted, I have, so I am an orphan, I don’t have a brother or even a sister. I got no one. Even in Australia if I’m lucky enough and if you are kind enough you, you can change my life and I can – I can have at least a secure, of course life is not secure, I can even get killed any time after coming out of this building, but at least over there, I have heard, like, in re re tribunals like this people talk about relocation so even if you relocate me in a Christian zone I, I don’t, because I was brought up in that country, it’s my birthplace, I know how it is, the NGOs and all that an educated person like me would not be able to survive in a village, or a, because there’s nothing, what will I do? No one, I have learned hairdressing here, no one goes to a hairdresser there. I have worked in telecom, no telecom would operate in an, other than an urban area. So all I see is I will have to live as, I don’t know how practical Christian life. I have seen that, it’s not very practical, a lot of things are hidden. A lot of things, you can’t say or talk with anybody about Christ or Jesus to anyone. Even Christians can’t Christians, like born as Christians. So what I’m trying to say my Christianity and my practical life as a survivor who would give me job there and I’ll be a, there is no Red Cross or Centrelink over there so I will end up destitute and without, it is very hard to survive in a patriarchal society which is dominated – of course the country leaders and opposition they’re women as you know. The Prime Minister is a female but in real scenario it’s a male dominating society. It would be very hard for me to survive because I am, I believe I am still young and if I am surviving [?] at least 30 years of my life like that, I don’t think I will it’s not fair on me, a converted Christian woman. It is just not fair on me. Thank you so much
[59] Exhibit A
The applicant particularly relies on the passages I have emphasised in bold. The passages I have underlined are passages to which I will refer later in these reasons.
At the conclusion of this statement, the Tribunal said:[60]
. . . . [W]hat you’ve just said . . . suggests that you might be making a separate claim to the Christianity, that you would be at risk of harm as a single woman returning to Bangladesh regardless of your religion. Is that correct? Or you’re just talking about in terms of relocation as a Christian?
[60] Transcript, page 59.2
The applicant responded as follows:[61]
I’m talking about relocation because of course, you won’t be, I’m pretty much sure by now after all my story and history, you know that it’s, I’m not even considering to go back to Dhaka city where all this happened. Because it’s absolutely impossible for me to live there with all those people because they didn’t die. My father died there, they persecuted him. But they’re pretty much alive I believe, I’m not in touch with them but I strongly believe that. So I don’t see I will be able to live in that same city. So even if you relocate me in some other city, and Bangladesh is a country which is quite Dhaka based. What will an educated woman and because, even those areas, the Christians are in quite, quite fear because over there, other than the urban life, the Muslims over there, like [Shibir] and [Jama] people, they are even stronger. Anytime, even recently as I’ve told you, I’ve come across sort of newspaper that in Bangladesh church has been, some rural area church has been burned down, Christians have been, their house been broken and even, it’s not just about my claim for asylum seeker, when I see Bangladeshi non-Muslim, that person was a non-Muslim or he was an Hindu man he was telling me that a lot of non, over there in Dhaka city it is different because it’s urban. But over there someone who is non-Muslim woman and young and whatever like someone similar like me, usually is more likely to get raped because that’s what happen in his family as well. He was just a fellow asylum seeker from Bangladesh, I was, I came across in the centre. So that’s what I’m saying. Even if relocation, of course. Home is the comfort zone. After work you go back to your home. So that’s my birthplace, that’s my home, that’s my comfort zone. But even if you relocate me it would be so hard to live in a rural sort of life where lack of sanitation and lack of, like of flowing water and all this sort of life and I will end up in a destitute because the NGOs won’t able to put me in a good position or a job. So neither I’ll practically be able, that’s my belief, I will be able to stand out as a Christian because I am a converted Christian. Neither will I be able to survive and live on my own and stand on my own, earning money and have a life.
[61] Transcript, page 59.3
Was the alleged claim clearly before the Tribunal?
Before I consider this question, it would be useful if I first identify the relevant principles I must apply in determining whether the alleged claim was before the Tribunal.
Legal principles
Those principles were considered by the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2),[62] and are as follows:[63]
a)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.[64]
b)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.[65]
c)However, that does not mean that an application for a protection visa “is to be treated as an exercise in 19th Century pleading”; the Tribunal must “deal with the case raised by the material and evidence before it”,[66] and 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”.[67]
d)That does not mean, however, that the Tribunal “is only required to deal with claims expressly articulated by the applicant”.[68] On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.[69]
[62] (2004) 144 FCR 1 (Black CJ, French and Selway JJ)
[63] This reproduces the summary I provided in SZTDQ v Minister for Immigration & Anor [2014] FCCA 537 at [12]
[64] (2004) 144 FCR 1 at page 17, ([55]); relying on Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 at [24]
[65] (2004) 144 FCR 1 at page 19, ([60]). The two quoted passages are respectively from the reasons for judgment of Kirby J in Dranichnikov quoted by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 405 and the reasons for judgment of von Doussa J in SCAL v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 548 also quoted by Selway J in SGBB at [16]
[66] (2004) 144 FCR 1 at page 19, ([60]) quoting Selway J in SGBB at [17]
[67] (2004) 144 FCR 1 at page 19, ([60]) quoting Selway J in SGBB at [18]
[68] (2004) 144 FCR 1 at page 19, ([60])
[69] (2004) 144 FCR 1 at page 20, ([61])
Also instructive is the following passage from the reasons for judgment of Allsop J (as his Honour then was) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs:[70]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[70] [2004] FCA 1695 at [15]
The parties’ submissions
Counsel for the applicant submits that the alleged claim clearly arises from the following evidence the applicant gave:[71]
a)Transcript at page 48 (First Passage):
I didn’t use public transport because in Bangladesh there is a situation of kidnapping from like, a single woman like me . . . it’s sometimes women get kidnapped and they disappear, their parts of their bodies like kidneys or whatever they get stolen.
b)Transcript at page 49 (Second Passage):
First of all, I am really scared. I don’t have any male guardian. My father has been persecuted. I don’t have a brother. I don’t have a son. I don’t have a husband.
c)Transcript at page 58 (Third Passage):
And lastly honourable member, I don’t know how much you know about the south-east Asian countries and a single woman like me and I got no one I don’t know how much you believe that my parents are no longer, my father has been persecuted, I have, so I am an orphan, I don’t have a brother or even a sister. I got no one.
d)Transcript at page 59 (Fourth Passage):
. . . it is very hard to survive in a patriarchal society which is dominated – of course the country leaders and opposition they’re women as you know. The Prime Minister is a female but in real scenario it’s a male dominating society. It would be very hard for me to survive because I am, I believe I am still young.
[71] Applicant’s written submissions, [20]
Counsel for the applicant further submits that, although the applicant, in response to the Tribunal member’s question, said that what she had stated in her previous answer was her “talking about relocation”, the applicant did not demonstrate “any cognisance of the legal significance of the question that was being asked”.[72] Counsel submits the Tribunal member and the applicant were at cross-purposes. On the one hand, the Tribunal member was seeking to determine if the applicant was making a separate claim to be at risk of harm as a single woman. On the other hand, the applicant “was trying to ensure that the Tribunal member understood the force of her arguments that she would suffer serious harm, both if she was to remain in Dhaka or if she was forced to relocate to any other part of Bangladesh”.[73] The applicant’s statement that she was “talking about relocation” did not amount to a rejection of the Tribunal’s query whether she was making a separate claim to fear persecution as a single woman without male protection.[74]
[72] Applicant’s written submissions, [22]
[73] Applicant’s written submissions, [23]
[74] Applicant’s written submissions, [24]
Counsel for the Minister, on the other hand, submits that the alleged claim was neither articulated nor otherwise obvious and, in any event, when asked whether she sought to make a claim based on her status as a single woman, the applicant rejected that proposition, stating that her evidence on that issue related to the difficulty of relocation.[75] The answer the applicant gave was responsive and meaningful, and was consistent with the written submissions she provided to the Tribunal which dealt with relocation.[76]
[75] First respondent’s written submissions, [14]
[76] First respondent’s written submissions, [15]
Was the alleged claim clearly before the Tribunal?
If I were to consider the passages from the transcript on which the applicant relies as giving rise to the alleged claim, and nothing else, I would conclude that the alleged claim clearly was before the Tribunal. It is illegitimate, however, to consider these passages in isolation from all of the materials that were before the Tribunal. The meaning of the passages on which the applicant relies must be assessed in the context of all of the materials that were before the Tribunal.
I turn to the First Passage. It appears in the middle of a lengthy statement given by the applicant which I have reproduced in paragraph 17 of these reasons. The statements were made in response to the question why the applicant thought her cousins did not go to the applicant’s workplace, or attack the applicant going to or from her work.
The effect of the explanation the applicant gave to the Tribunal is that her workplace was secure, requiring persons to have access to the workplace, and that she had a means of leaving and going to her workplace, namely, by a chauffeur-driven office car. The applicant’s statement that she did not take public transport in Bangladesh, and the reason she gave for not doing so, appears to have been given to explain why the applicant travelled to and from work by a chauffeur-driven office car and was, for that reason, secure from attack.
In the context in which it was made, therefore, the applicant’s statement that she did not use public transport in Bangladesh because women sometimes are kidnapped cannot reasonably have been considered by the Tribunal as giving rise to, or as forming part of a claim to fear harm or persecution on the ground that the applicant was a single woman, or a single woman without male protection.
The Second Passage forms part of a long statement the applicant gave in answer to a question why the applicant feared her cousins would want to harm her, given that the applicant had no property. I have reproduced most of that statement in paragraph 18 of these reasons. The first part of the applicant’s statement refers to her being a Christian, and the attacks in Bangladesh on Christians as well as on Buddhists and Hindus. Having completed that topic, the applicant stated “even if you relocate me” and “if you relocate me in a Christian zone”, after which the applicant uttered additional words that included the Second Passage.
In my opinion, a reasonable decision-maker in the position of the Tribunal member would have understood the applicant’s statement “I am really scared. I don’t have any male guardian. My father has been persecuted. I don’t have a brother. I don’t have a son. I don’t have a husband” to constitute a rehearsal of the written submissions on relocation her lawyer’s made. That is so because the applicant herself volunteered the word “relocation”; and the applicant prefaced the words “I am really scared”, with the words “if you relocate me” and “if you relocate me in a Christian zone”. Those words indicate that the applicant intended the words that followed to deal with the applicant’s fears if she were to relocate in Bangladesh, or if she were to relocate to a Christian zone in Bangladesh.
The Third and Fourth Passages should be considered together because they appear in the one statement which I have reproduced in paragraph 23 of these reasons. The statement opens with the Third Passage. Considered alone, it says nothing more than that the applicant is a single woman with no parents or siblings. If nothing further were said, it would have been reasonable for the Tribunal to have considered the applicant to have made the statement in support of the written submissions on relocation made by her lawyer.
When read with the Fourth Passage, the Third Passage acquires a potentially different significance. Read together, the Third and Fourth Passages convey a claim that the applicant, as a single woman, with no parents and siblings, will not survive in a male dominated society. The Third and Fourth Passages cannot, however, simply be read together. For there are a number of statements the applicant made that separate them. One of those statements includes the words “if you relocate me in a Christian zone”. The Third and Fourth Passages, therefore, are at the very least open to the reasonable interpretation that they have been made in support of the applicant’s relocation submissions. For that reason, they do not, in my opinion, clearly give rise to the alleged claim. But the material by reference to which the question of whether the alleged claim was clearly before the Tribunal does not end there. Consideration must also be given to the next statement the applicant made which I have reproduced in paragraph 26 of these reasons.
Ignoring the words “I’m talking about relocation” that appear in that statement, and accepting (as I do) that the statement, as submitted by the applicant’s counsel, constitutes an attempt by the applicant to ensure the Tribunal member understood the force of her arguments that she would suffer serious harm, it is clear that the harm the applicant was referring to was harm she would suffer if she were to relocate away from Dhaka. That is made clear by the passages I have underlined in paragraph 26 of these reasons. The applicant first says she could not return to Dhaka because the people who killed her father were still there. Next, the applicant makes a number of statements after the words “So even if you relocate me in some other city”. That indicates that the matters the applicant states after these words are intended to deal with relocation. The applicant there contrasted the difficulties she would experience in rural areas with life in Dhaka which “is different because it’s urban”. After again uttering the words “[e]ven if relocation”, the applicant stated that “[h]ome is the comfort zone. After work you go back to your home. So that’s my birthplace, that’s my home, that’s my comfort zone”. And, after again stating “if you relocate me”, the applicant described difficulties in living “a rural sort of life”.
I finally consider the words “I’m talking about relocation” the applicant uttered in answer to the Tribunal member’s questions whether it was correct that what the applicant had then said suggested the applicant might be “making a separate claim to Christianity, that you would be at risk of harm as a single woman returning to Bangladesh regardless of your religion”, or whether the applicant was “just talking about in terms of relocation as a Christian”. I do not accept the applicant’s submission that the applicant did not “demonstrate any cognisance of the legal significance of the question that was being asked”. The notion of relocation is contained in the submissions prepared by the applicant’s lawyers. The applicant herself used the words “relocate” and “relocation” before the Tribunal used the word, and she used the words three times in the answer the applicant gave to the Tribunal member’s question. All this indicates, and I find, that the applicant understood what relocation meant in the context of her claims for protection, and that was the submission on relocation contained in the written submission prepared by her lawyers.
Even if, contrary to what I have found, the applicant did not understand what the Tribunal member meant by “relocation as a Christian”, the applicant does not submit the applicant did not understand what the Tribunal member meant when the member asked the applicant whether it was correct that what the applicant had just said suggested the applicant might be making a separate claim to her Christian religion, namely, “that you would be at risk of harm as a single woman returning to Bangladesh regardless of your religion”. There is nothing in the material before me that suggests the applicant did not or did not have the ability to understand that question. If, as I find, the applicant understood that question, her not answering that question in the affirmative indicates that the applicant did not make any claim that she feared risk of harm as a single woman returning to Bangladesh, regardless of religion.
In my opinion, the proceeding before the Tribunal demonstrates nothing more than this. The applicant’s claim for protection was based on her being a Christian, and her being a member of a particular social group, namely, Christians who have converted from Islam. As part of her claim the applicant submitted it would be unreasonable to relocate as a Christian outside Dhaka. The passages on which the applicant relies as clearly raising the alleged claim were intended by her to be made in connection with that part of her claim that related to relocation as a Christian. The applicant’s making the statement which contained the Third and Fourth Passages caused the Tribunal member to wonder whether the applicant might be raising a claim separate from that based on her Christian religion. When the Tribunal member asked the applicant whether that was so, or whether what the applicant stated related to the relocation aspect of her claim, the applicant unequivocally responded it related to the relocation aspect of her claim.
In my opinion, the material before the Tribunal does not indicate that the alleged claim was made; it indicates that the applicant intended not to make any such claim.
Did the Tribunal apply s.91R(3) when considering complementary protection?
As I noted earlier in these reasons, the Tribunal was not satisfied the applicant had any significant involvement with any church in Australia before 2012, and such involvement as the applicant had “was solely for the purpose of strengthening her protection visa application”.[77] When considering the applicant’s claims for a protection visa under s.36(2)(a) of the Act, the Tribunal stated that “in accordance with s.91R(3) the Tribunal disregards the applicant’s conduct since arriving in Australia”.[78]
[77] CB222, [36]
[78] CB222, [36]
The applicant submits that the Tribunal similarly applied s.91R(3) of the Act when considering the applicant’s claims for a protection visa under s.36(2)(aa) of the Act. The applicant relies on the following passage from the Tribunal’s reasons:[79]
The Tribunal has considered the applicant’s activities in Australia and her involvement with the Christian churches in Australia. For the reasons discussed above the Tribunal is not satisfied that the applicant engaged in those activities as a result of any genuine Christian beliefs or that she would be involved in any Christian activities if she was to return to Bangladesh. There is no evidence to suggest that anyone in Bangladesh are [sic] aware of her involvement in Australia as she stated that she has no contact with the Bangladeshi community here in Australia.
[79] CB222, [40]. The emphasis reflects the passages on which the applicant relies.
The applicant submits that the words “for the reasons discussed above” indicate that the Tribunal was “drawing support from an earlier section of its reasoning to which it was not permitted to have regard”.[80] The applicant submits that the Tribunal made the finding that it was not satisfied the applicant engaged in church activities in Australia as a result of any genuine Christian beliefs for the purposes of determining under s.91R(3) of the Act whether the applicant engaged in conduct otherwise than for the purpose of strengthening her claim to be a refugee, and the Tribunal, therefore, applied s.91R(3) when determining the applicant’s claim for complementary protection.
[80] Applicant’s written submissions, [29]
I do not share this interpretation of the Tribunal’s reasons. If, in truth, the purpose of the Tribunal’s finding concerning the applicant’s genuine Christian beliefs was to determine for the purposes of s.91R(3) of the Act whether the Tribunal was satisfied the applicant engaged in church activities in Australia otherwise than for the purpose of strengthening her claims to be a refugee, the Tribunal, having concluded it was not so satisfied, would also have stated that, in accordance with s.91R(3) of the Act, it disregards the applicant’s conduct since arriving in Australia. That is what the Tribunal did when considering the applicant’s claim under s.36(2)(a) of the Act. The Tribunal did not do that when considering the applicant’s claims under s.36(2)(aa); the Tribunal did have regard to the applicant’s activities in Australia.
The Tribunal states it “considered the applicant’s activities in Australia and her involvement with the Christian churches in Australia”. Further, even though the Tribunal was not satisfied that the applicant’s activities in Australia were the product of a genuine Christian belief, the Tribunal nevertheless considered the potential consequences of her having engaged in those activities. The Tribunal found there was no evidence to suggest anyone in Bangladesh is aware of her involvement in Australia in those activities, the basis of that finding being that the applicant stated that she had no contact with the Bangladeshi community in Australia.[81]
[81] CB222, [40]
The applicant relies on the decision of Judge Barnes in SZTDM v Minister for Immigration & Anor (No.2).[82] In that case, her Honour found that the Tribunal, purportedly under s.91R(3), disregarded the applicant’s conduct in Australia for all purposes, even though the Tribunal accepted some of the applicant’s claims about his activities in Australia. Her Honour found the Tribunal made a jurisdictional error because it failed to consider those activities for the purposes of determining whether s.36(2)(aa) of the Act applied. As I have already concluded, however, unlike the Tribunal in SZTDM, the Tribunal in the case before me did not disregard the applicant’s conduct in Australia when considering the applicant’s claims under s.36(2)(aa) of the Act.
[82] [2013] FCCA 2060
In my opinion, what the Tribunal did when considering the applicant’s claims under s.36(2)(aa) was this. The Tribunal was of the view that whether the applicant had a genuine Christian belief was relevant to assessing whether the applicant faced a real risk of suffering significant harm if she were to return to Bangladesh. It was open to the Tribunal to hold that view. The Tribunal was not satisfied the applicant had such belief; and it based that conclusion, not on the operation of s.91R(3) of the Act, but on the reasons the Tribunal had already given for finding that “the applicant’s involvement with the Christian churches in Australia was solely for the purpose of strengthening her protection visa application”.[83] Those reasons were the Tribunal’s credibility findings that were adverse to the applicant, the Tribunal’s finding that the applicant did not convert to Christianity in Bangladesh, the applicant’s inconsistent evidence about her attendance at church in Australia, and the letters of support which suggested the applicant only converted in 2012, being around the time the applicant lodged her protection visa.
[83] CB222, [36]
In my opinion, the Tribunal did not apply s.91R(3) of the Act in its consideration of the applicant’s claims under s.36(2)(aa) of the Act.
Conclusion and disposition
I have concluded that the alleged claim did not clearly arise on the material that was before the Tribunal and the Tribunal, therefore, made no jurisdictional error by not considering any such claim. I have also concluded that the Tribunal did not apply s.91R(3) of the Act when considering the applicant’s claims under s.36(2)(aa) of the Act.
I propose, therefore, to order that the application be dismissed, and that the applicant pay the Minister’s costs.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 10 February 2015
0