BBF15 v Minister for Immigration and Border Protection

RELEVANT PROCEDURAL and chronological HISTORY 6 The first and second appellants are citizens of Bangladesh. On 1 July 2013, the first appellant, who is the wife of the second appellant, applied for a protection visa. The second appellant (the husband) was included as a family member of the first appellant's family unit who did not have his own claims for protection. I shall refer to the first and second appellants collectively as the adult appellants. 7 The chronology of events is important because of the issue raised by the second ground of appeal. 8 The third appellant, who is the daughter of the adult appellants, was born on 29 April 2014. 9 On 2 May 2014, a delegate (the first delegate) refused to grant the adult appellants the protection visas. 10 On 22 May 2014, the adult appellants applied to the Tribunal for review of the first delegate's decision. The third appellant's name was included as a person applying for review, but, as is apparent from what I have said, there had, as at that date, been no decision made by the first delegate in respect of the child. 11 On the same day (22 May 2014), the first appellant lodged a "Form 1022 (Notification of changes in circumstances)" with the Department of Immigration and Border Protection (the Department) notifying the Department that the third appellant had been born on 29 April 2014. 12 On 30 May 2014, the Tribunal wrote an email to the first appellant as follows: Could you please contact the Department … to advise them that you have had a newly born baby [name inserted] recently. Until a decision is made by the Department on the status of your baby, unfortunately the Tribunal cannot add her to your review. Please contact the Department as soon as possible. 13 On 23 June 2014, the adult appellants lodged a Form 866D entitled "Application for a member of the family unit" adding the third appellant to the protection visa application. 14 On 16 July 2014, another delegate (the second delegate) refused to grant the third appellant a protection visa. 15 On 9 April 2015, the adult appellants appeared before the Tribunal to give evidence and present arguments. 16 On 15 April 2015, the Tribunal wrote to the adult appellants, in relation to a number of matters, including the Tribunal's jurisdiction in relation to the third appellant, as follows: The presiding member considers that there is no valid application for review before her in relation to your dependent child [name inserted]. When you lodged your application for review on 22 May 2014, in which your daughter was included, there was no reviewable decision by the delegate of the Minister in relation to your daughter, as the department had not, at that stage, been informed of her birth. No application for review was lodged in relation to the subsequent decision of the Minister's delegate made on 16 July 2014 to refuse to grant your daughter a protection visa, and the statutory time period for lodging an application for review in relation to that decision has passed. You are invited to make comments in relation to the jurisdictional issue; however, should the presiding member's decide that she does not have jurisdiction - that is, legal power - to consider your daughter's application, she has no discretion to do so. You are invited to give comments on or respond to the above information in writing.

THE DECISION OF THE TRIBUNAL 17 On 27 May 2015, the Tribunal affirmed the first delegate's decision not to grant the adult appellants the protection visas. The Tribunal determined that there was no RRT-reviewable decision in relation to the third appellant when the application for review was lodged, as follows: I am satisfied that I have jurisdiction to review the decision to refuse protection visas to the first and second named applicants. I do not have jurisdiction to review the application for review in relation to the third named applicant, their child. There was no RRT-Reviewable decision in relation to the child when the application for review was lodged. No application for review has been lodged in relation to the decision made in relation to the third named applicant on 16 July 2014, and any application would now be out of time. 18 The Tribunal summarised the evidence given by the adult appellants as follows: In summary, the applicant claims that she (and her husband and child) will be killed or seriously harmed (for example, by acid attack) by a man named [AH] who she claims liked her before she married the second named applicant in 2008. She claims that Mr [H] continued to stalk and harass her and her husband after their marriage, until they came to Australia in 2009. She claims that they came to Australia to get away from him. She claims that when they returned on a visit to Bangladesh from July-September 2012, she accidentally met Mr [H] on the night of 10 August 2012. He accosted her and kicked her in the abdomen. She suffered a miscarriage. He continued to threaten them until they returned to Australia earlier than planned. She fears that if they returned to Bangladesh he will make good his threat to harm them. She claims that Mr [H] is well connected with the Awami League, the current party of government. She claims that because of his political connections she would not be able to obtain protection. Moreover, she claims that violence against women is not taken seriously, and that Bangladesh is an extremely corrupt country with rampant political violence. 19 It is sufficient for present purposes to note that the Tribunal found that the first appellant did not provide a truthful or believable account of her reasons for leaving Bangladesh or for not wishing to return there. The Tribunal concluded that the first appellant "has demonstrated herself to be willing to say anything that she thought would assist her to obtain a desired outcome" and that her evidence was "at best, unreliable, and at times fabricated". 20 The Tribunal was not satisfied that the first appellant was at risk of any kind of harm in that country, for the reasons she claimed. The Tribunal noted that the first appellant had made general references to the prevalence of violence against women in Bangladesh but had not provided credible or persuasive evidence to suggest that there was a real chance or a real risk that she faced harm directed at her as a woman other than the specific violence she claimed to fear from Mr H. The Tribunal was not satisfied that the first appellant faces persecution or significant harm in Bangladesh because she is a woman. 21 The Tribunal determined that, as the first appellant did not satisfy the criteria set out in s 36(2)(a) or (aa) of the Migration Act 1958 (Cth) (the Act), it followed that the second appellant could also not satisfy the criteria set out in s 36(2)(b) or (c).

relevant STATUTORY provisions 22 Part 7 of the Act provides for review of RRT-reviewable decisions. Section 411 is contained in Pt 7. By virtue of s 411(1)(c), "a decision to refuse to grant a protection visa" is an "RRT-reviewable decision". 23 Section 412(2) relevantly provides: An application for review may only be made by the non-citizen who is the subject of the primary decision. 24 The words "primary decision" are not defined for the purposes of s 412, but they can only refer to the decision of the Minister's delegate which is reviewable by the RRT. 25 Section 476 is headed "Jurisdiction of the Federal Circuit Court". Section 476(4) relevantly defines "primary decision" for the purposes of that section to mean "a privative clause decision … that is reviewable under Part … 7 …". "Privative clause decision" is relevantly defined in s 474(2) to mean "a decision of an administrative character made … under this Act or under a regulation …". 26 It follows that a primary decision for the purposes of s 476(4) is a decision which is reviewable under Pt 7. A decision by a delegate of the Minister refusing to grant a protection visa is such a decision.

THE FEDERAL CIRCUIT COURT DECISION 27 The grounds of appeal in this Court are the same grounds raised before the FCCA.

FCCA's consideration of ground 1 28 The first ground of review before the FCCA alleged that the Tribunal had breached s 499(2A) of the Act in failing to take into account a relevant consideration, namely, DFAT country information about Bangladesh in which it was observed that there had been 31 acid attacks against women who had refused to accept a marriage proposal; and women living in poverty are vulnerable to sexual crime. 29 The first appellant alleged that this country information corroborated her claim before the Tribunal with respect to the conduct of Mr H and that the Tribunal was obliged specifically to consider it as a result of Ministerial Direction No. 56 made under s 499 of the Act. 30 In rejecting that ground, the primary judge held as follows: 17. With respect to ground one, the applicant complains that the Tribunal Member had failed to discuss reports by non-government organisations that were mentioned in a DFAT country information report (a copy of which is annexed to an affidavit of the applicant's solicitor in these proceedings), wherein 31 acid attacks against women were reported in 2013 which were said to be often related to a refusal to accept a marriage proposal, and more general comments that women living in poverty are vulnerable to sexual crime. It is argued that this material would have corroborated the applicant's claims before the Tribunal with respect to the conduct of Mr H and that the Tribunal was obliged to specifically consider it as a result of the operation of Ministerial Direction number 56, made under s.499 of the Migration Act 1958. 18. The operation of this direction has been considered by Perram J in SZTMD v Minister for Immigration and Border Protection [2015] FCA 150 where his Honour said at [15]: 15. It has been held that the effect of s 430(1) is that the Court is entitled to infer that a matter not mentioned in the Tribunal's reasons was not considered by it to be material: Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at 346 [69]. Therefore it is permissible for this Court to conclude from the absence of any direct consideration of either the two guidelines or the country information that the Tribunal did not consider them to be material to its decision. 19. It appears to me that it is necessary to read the decision of the Tribunal as a whole, in the context of the particular case, in order to make a determination as to whether or not the Tribunal either overlooked the material or failed to have regard to it (if it were relevant in the decision-making process). One must not overlook the reality that reasons will not refer to every piece of evidence. 20. It does not appear to me that the nature of the applicant's claim of an assault and a threat of acid being thrown over her is of itself inherently implausible. If there were any doubts in that regard, the country information confirms that it would be a plausible version of events with respect to a threat. The Tribunal, however, at no point suggested that the claims given by the applicant were inherently implausible; rather, the focus of the Tribunal's assessment was the applicant's credibility, in order to determine whether in fact a threat had been made as alleged or whether in fact an assault had been carried out has [sic] alleged … 21. When reading the material as a whole and the particular factors that the Tribunal Member relied upon to conclude that they did not accept the applicant as a credible witness, and reject her version of events, it does not seem to me that the material contained in the DFAT information bore any real significance upon that decision. Had the Tribunal expressed some doubt as to the version of events, on the basis that it was an incredible story or an unlikely version of events due to the inherent nature of the allegations, then the DFAT information may have had some relevance at that point. There is no question that if the Tribunal had concluded that the applicant had been the subject of threats of acid being thrown upon her, that the DFAT information would then have been important in assessing the extent of the risk to her as a result of that threat (in the sense that in countries where such attacks are more common the threat may create a greater risk to a person threatened when objectively assessed than in countries where attacks are less frequent, although, generally, the specific circumstances of the threat will be the more significant evidence in assessing the risk involved). 22. In this case, the applicant's case fell at the first hurdle, in that her credibility was so poor that the Tribunal Member did not accept that the threats were made at all. In these circumstances, there was no need to go on to consider whether or not those threats presented a real risk of serious harm to her. 23. To the extent it is argued that the claim should also have been dealt with on the basis of a generalised claim that effectively, women living in Bangladesh are at real risk of serious harm because of the circumstances of the country generally, it seems to me that such a claim is of such a great level of generality that it was appropriately dealt with by the comments of the Tribunal at paragraph [46] of their reasons. 24. In these circumstances, I am not persuaded that the failure of the Tribunal to specifically refer to the DFAT information shows either that the Tribunal did not have any regard to it as required under Direction Number 56 - nor am I satisfied that it was of sufficient relevance that one would expect it to be specifically referred to in the reasons in the context of the particular find-finding involved in this decision. I therefore find that this ground is not made out.

FCCA's consideration of ground 2 31 In rejecting ground 2, the primary judge held as follows: 25. …The sequence of events with respect to the birth and notification of the Minister is important to understand this case. (1) The application for a protection visa was pending before the delegate. (2) The child was born on 29 April 2014. (3) As a result of reg.2.08(1) to the Migration Regulations 1994, the child is deemed to have made an application for the same visa type … (4) Unfortunately, the mother did not notify the Minister prior to the delegate making a decision. (5) The delegate therefore determined the application of the mother and father on 2 May 2014, that determination being adverse to them. At this point, the Minister was still unaware of the existence of the third applicant. (6) Some weeks later, on 22 May, the Minister was notified of the existence of the third applicant and received a notice for review by the Tribunal with respect to the first and second applicants. (7) A delegate determined not to grant a visa to the third application [sic] on 16 July 2014. 26. This presents somewhat of a conundrum, in that the delegate has only determined the claims of the first and second applicants at this point and not the claim of the third applicant, even though the provisions deem the third applicant to have applied and have had an application combined with the other two applicants. For the Minister to discharge their duties under s.65 of the Act, the Minister (or a delegate) makes a decision with respect to the application. The fact that the claim may have been deemed to be combined with the first two applicants' does not relieve the Minister of that obligation to specifically make a decision with respect to the deemed visa application of the child. The Minister proceeded to make a decision under s.65, by way of a delegate's decision on 16 July 2014. No subsequent application was made to review that particular visa decision by the Refugee Review Tribunal. 27. It is argued by the applicants that the effect of reg.4.31A is to make the Refugee Review Tribunal application that was filed by the parents on 22 May also an application in respect of the child, even though the delegate's decision was not made until 16 July 2014. … 29. The regulation is permissive, not mandatory, in that the applications for review may be combined but are not necessarily combined. In this case, there was no decision by a delegate with respect to the child that could be the subject of an RRT review, as contemplated in s.412(2) of the Act, at the relevant time. In the circumstances, the review application made on 22 May could not have been with respect to a delegate's decision relating to the child. 30. Any review application by the child needed to be lodged after the delegate's decision on 16 July. 31. Thereafter, the question would arise as to whether it ought to be combined with the review application by the parents so that all applications could be heard together or not. However, that does not arise on the facts of this case. 32. In the circumstances, I am persuaded that the third applicant (the child) did not have a valid review application pending before the Tribunal. Therefore there is no error in the Tribunal not deciding an application but the third applicant (the child). In this respect, the Tribunal were correct to conclude that they did not have jurisdiction with respect to the child, as they did at paragraph [49] of the decision.

CONSIDERATION 32 The appellants were not represented by a lawyer in this appeal. The first appellant appeared at the hearing before me in person, with the assistance of an interpreter. At the hearing, counsel for the Minister, Ms Julia Lucas, submitted that an order should be made under r 9.63 of the Federal Court Rules 2011 (Cth) appointing the adult appellants as the litigation representatives of the third appellant. I indicated that I would make that order, with effect from the date of filing of the notice of appeal. 33 During the course of the hearing, Ms Lucas provided to the Court a copy of the written submissions prepared by counsel (Ms Franceska Leoncio) who appeared for the appellants before the FCCA. Those submissions were admitted into evidence.

Ground 1 34 The appellants contend in this Court, as they did before the FCCA, that the Tribunal breached s 499(2A) of the Act in failing to take into account DFAT country information about Bangladesh about 31 acid attacks against women who had refused to accept a marriage proposal and that women living in poverty are vulnerable to sexual crime. 35 As explained above, the first appellant contends that the DFAT country information corroborated her claim before the Tribunal with respect to the conduct of Mr H and that the Tribunal was obliged specifically to consider it. 36 There is no substance to this ground, for the reasons given by the FCCA (see [30] above). 37 The Tribunal also specifically noted that while the first appellant had made "general references to the prevalence of violence against women in Bangladesh, she has not provided credible or persuasive evidence to suggest that there is a real chance or risk that she faces harm directed at her as a woman…". It is therefore clear that the Tribunal had regard to the DFAT country information, but correctly considered it to be of little or no consequence in this case. 38 For those reasons, ground 1 must fail.

Ground 2 39 It is readily apparent from the statutory provisions set out above that in order to apply for "a review" under s 412, a non-citizen must be the subject of a delegate's decision - here, the decision by the first delegate on 2 May 2014 refusing to grant to the adult appellants protection visas. The third appellant was not the subject of the first delegate's decision, and could never have been the subject of the first delegate's decision, because that delegate was at all material times unaware of the third appellant's existence. It follows that there was no "primary decision" within the meaning of s 412(2) in respect of which the third appellant could ever have sought review. 40 Ground 2 before the FCCA was, as I have said, the same as ground 2 in this appeal. Ms Leoncio's written submission relied upon reg 2.08 of the Migration Regulations 1994 (Cth) (the Regulations), which provides as follows: (1) If: (a) a non-citizen applies for a visa; and (b) after the application is made but before it is decided, a child, other than a contributory parent newborn child, is born to the non-citizen; Then: (c) the child is taken to have applied for a visa of the same class at the time he or she was born; and (d) the child's application is taken to be combined with the non-citizen's application. (2) Despite any provision in Schedule 2, a child referred to in subregulation (1): (a) must satisfy the criteria to be satisfied; and (b) at the time of decision must satisfy a criterion (if any) applicable at the time of application that an application must be sponsored, nominated or proposed. … 41 Regulation 4.31A of the Regulations provides: If: (a) 2 or more applicants have combined their primary applications for a protection visa in a way permitted by Schedule 1 or regulation 2.08, 2.08A or 208B; and (b) the Minister's decisions in respect of 2 or more of those applicants are that the protection visas not be granted; and (c) the Minister's decisions are RRT-reviewable decisions; the applicants referred to in paragraph (b) may combine their applications for review by the Tribunal of the Minister's decisions. 42 Counsel made the following submission on behalf of the appellants (or the applicants as they were before the FCCA): In SZRMC & Anor v Minister for Immigration & Anor [2012] FMCA 845 and Lay v Minister for Immigration & Anor [2014] FCCA 293 the Court considered the Tribunal's jurisdiction to review applications of children born to parents who were non-citizens after their parents' applications had been made. In both cases the children were taken to have made their applications on the day that they were born, pursuant to regulation 2.08. However, the Court considered that the Tribunal could only have jurisdiction where the child's protection visa application had been dealt with by the Minister's delegate. In both cases the delegate had not yet made a decision in respect of the child applicants. In this respect, the present case is distinguishable. The delegate made a decision in respect of the third applicant on 16 July 2014. While the review application was made on 22 May 2014, prior to the delegate's decision, the third applicant was named in the application for review to the tribunal. It follows that the third applicant was part of the review application and the Tribunal's jurisdiction was enlivened when the delegate made a decision in respect of the third applicant. By virtue of regulation 4.31A, the third applicant should be taken to have combined her application for review of the decision on 16 July 2014 with her parents' application. The following details suggest that the applications were combined: (a) The third applicant was taken to have combined her protection visa application with the first and second applicants' application. (b) The Tribunal's invitation to appear dated 19 February 2015 was addressed to the first, second and third applicant. (c) The Tribunal's record of the hearing on 18 March 2015 lists the third applicant as a "visa applicant". (d) The Tribunal's notification of a resumption of an adjourned hearing dated 19 March 2015 was addressed to the first, second and third applicant. (e) The Tribunal was aware of the delegate's decision in respect of the third applicant. Having regard to the above considerations, the Tribunal had jurisdiction to review the delegate's decision and erred in failing to do so. As a result, the tribunal failed to complete its statutory task. 43 In my view, this submission, which the appellants effectively adopted on the hearing of this appeal, must be rejected. The purpose of the regulation upon which the appellants rely is, in effect, to deem the newly born child of a non-citizen to have applied for a visa of the same class as their parent or parents have already applied for, and to deem the application to be combined with the parent's or parents' application. But a delegate, like any other decision-maker, must be aware of the existence of such a child in order to be able to make a decision in respect of the child. And it is a decision, and only a decision, in respect of which a non-citizen may seek review. 44 There is no doubt, as the Minister submitted, that by virtue of reg 2.08, the third appellant is taken to have applied for the protection visa on 29 April 2014 (her date of birth). The difficulty that arises, however, which is insuperable, is that the child's birthday was after the application was made and her birth was not notified to the Department before the "primary decision" of the first delegate was made on 2 May 2014. 45 That difficulty is insuperable because s 412(2) of the Act makes it plain that an application for review to the Tribunal may only be made by an appellant "who is the subject of the primary decision". The adult appellants were the only appellants who were the subject of the first delegate's decision (because the Department had only been notified of the birth of the third appellant three weeks after the first delegate had made the relevant primary decision). 46 It is, obviously, also irrelevant that a second delegate did make a decision in respect of the third appellant (on 16 July 2014). No review of that decision was sought and it is not before the Court on the hearing of this appeal. 47 For the reasons given above, the FCCA and the Tribunal were correct to find that there was no jurisdiction to entertain any review or appeal by the third appellant. Accordingly, this Court has no jurisdiction to hear an appeal by the third appellant.

CONCLUSION 48 The appeal will accordingly be dismissed, with costs. I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice O'Callaghan.