SZNPT v Minister for Immigration and Citizenship

REASONS FOR JUDGMENT 1 This is an appeal from an order of a Federal Magistrate dismissing the appellant's application for the judicial review of a decision of the Refugee Review Tribunal (RRT). 2 The appellant is a citizen of Bangladesh. She arrived in Australia on 30 October 2007. On 10 October 2008 she applied to the Department of Immigration and Citizenship for a Protection (Class XA) visa. On 27 November 2008 her solicitors wrote to the Department of Immigration and Citizenship making representations on behalf of the appellant. They also included voluminous independent country information. On 21 December 2008 a delegate of the first respondent refused the application for a Protection (Class XA) visa. 3 On 14 January 2009 the appellant applied to the RRT for a review of the delegate's decision. On 9 February 2009 the RRT wrote to the appellant advising her that it was unable to make a favourable decision on the information which had been provided and inviting her to appear before the Tribunal to give evidence and present arguments relating to the issues arising in her case. On 3 March 2009 the appellant responded to the invitation advising that she would attend the hearing which was to take place on 17 March 2009. On that day the appellant attended a hearing of the RRT and gave evidence with the assistance of a Bengali interpreter and presented arguments with the assistance of that interpreter and her migration agent. Subsequent to the hearing the appellant provided the RRT with two written submissions; one incorrectly dated 3 March 2009 and the other dated 15 April 2009. It is clear that the submission dated 3 March 2009 is incorrectly dated because it refers to the hearing on 17 March 2009. On 22 April 2009 the RRT, in a decision handed down on 23 April 2009, affirmed the delegate's decision not to grant the applicant a Protection (Class XA) visa. 4 On 19 May 2009 the appellant who was then represented by solicitors (who have been her solicitors throughout) applied in the Federal Magistrates Court for a review of the RRT decision claiming that the RRT had committed jurisdictional error and seeking the issue of the constitutional writs to quash the RRT decision and to require the RRT to determine the matter according to law. On 10 September 2009 Federal Magistrate Driver dismissed that application. This appeal is from his order dismissing that application. On this appeal the appellant is unrepresented. 5 The appellant claimed that she was born in Bangladesh in 1982 and practises the Islamic religion. She said that she was married in Netrakona in June 2003. She has family in Bangladesh including her mother, her married sister and two unmarried brothers. She left Bangladesh lawfully in February 2007 and entered Australia on a Student visa which had been issued in Dhaka in Bangladesh on 24 October 2007. She obtained a further Student visa in Sydney on 29 November 2007. 6 She claimed that her marriage to a man who was related to her family had been arranged by her father. She said the marriage ceremony took place over the telephone because her husband was then in Australia. Her husband told her that he would bring the appellant to Australia within six months. She entered her husband's family house. She was told by her husband's brother that she would have to enter Australia on a Student visa, not a Spouse visa. After two years no steps had been taken to bring her to Australia and she became embarrassed and upset. When she asked her husband about his failure to bring her to Australia he threatened to divorce her. Her family told her to remain in the relationship with her husband otherwise people would laugh at them. 7 Eventually her husband arranged to bring his nephew to Australia on a Student visa and she accompanied her husband's nephew as his wife. She said her husband arranged all the papers and she was forced to agree. After she arrived in Australia she was told she had signed a marriage registration paper in relation to a fake marriage with the nephew. She was told there was to be a marriage ceremony with her husband according to Islamic law. She was forced to go through the ceremony with her husband. Her husband took her home and they lived together but he was angry with her. He cheated her of her jewellery. He assaulted her in front of others. Her husband told her mother who was in Bangladesh that he was sending the appellant back to Bangladesh. She asked for the return of her passport. He ceased providing money for food. He sought a divorce so that he could get the property which they held in Bangladesh. 8 Her husband's nephew requested her to make a statement to the Department of Immigration and Citizenship that she was going to divorce the nephew. 9 Her husband said that he wanted to return to Bangladesh with her and start a new life together. When she refused he became angry. Her brother-in-law in Bangladesh told people in her village that she was working as a prostitute in Sydney earning a lot of money. He also told those people that she had taken money from her husband and married another person, and that her family was involved. She said her husband threatened her. Her family in Bangladesh were embarrassed. Her husband rang her mother and told her mother to tell the appellant to divorce him soon. 10 The appellant claimed that she feared if she returned to Bangladesh she would face shame, disgrace and humiliation in her community, and rejection by her family who will also face shame and disgrace. She also feared she may suffer harm if she returned to Bangladesh because of her marriage to her husband's nephew and because she is now separated from her husband. She also claimed that if her husband or his nephew who continue to reside in Australia returned to Bangladesh they would harm her, and she would not be able to get protection against that harm because she is a separated woman without a male protector. She claimed that her husband had threatened to "finish her off" if he was in Bangladesh. 11 The RRT accepted that the appellant was who she claimed to be and was a citizen of Bangladesh. The RRT considered the appellant not to be a reliable witness because of the manner in which the applicant obtained a visa to enter Australia and her entry into Australia. The appellant told the RRT that she was part of a fraudulent application for a visa to enable her and her husband's nephew to enter Australia. As part of that fraudulent application she posed for false marriage photographs and travelled on a passport which included false information. She admitted to the RRT that she knew about the falsity of the application for a visa and the falsity of the documents before coming to Australia. 12 The RRT rejected her explanation that she was forced to do what she did and concluded that she did what she did to achieve a particular migration outcome for herself. It was the RRT's opinion that she only revealed the falsity of the application for the Student visa after she fell out with her husband and his nephew and it became necessary for her to get another visa. The RRT doubted whether she was married to either the person who she claimed to be her husband, Bazlur Rahman Khan or his nephew, Mohammad Abdul Ahad Khan. The RRT put no weight on the marriage certificate which indicated that she was married to Bazlur Rahman Khan. It was her own evidence that she obtained false documents to show that she was married to Mohammad Abdul Ahad Khan. 13 The RRT concluded at [54]: The Tribunal therefore accepts that the applicant entered into a marriage arrangement with Bazlur Rahman [Khan] and expected to come to Australia as his spouse but when this did not eventuate she agreed to be part of a false application to come to Australia as the spouse of Mohammad Abdul Ahad Khan. The Tribunal does not accept as true that the applicant was part of the false application for visa because she was forced to do so by her family, her husband or his family or anyone else but rather finds that the applicant was part of the false application for visa because she herself wanted to come to Australia. 14 The RRT accepted that the appellant lived in Australia with Bazlur Rahman Khan and Mohammad Abdul Ahad Khan and other people, and rented accommodation after October 2007 and until April 2008 when the appellant and Bazlur Rahman Khan and Mohammad Abdul Ahad Khan fell out, and the two men left the accommodation. The RRT accepted that she had not seen them or had contact with them since that time except for a chance sighting of Mohammad Abdul Ahad Khan in June 2008. 15 The RRT did not accept her evidence that she was beaten by Bazlur Rahman Khan. Nor did it accept her evidence that she feared harm from Bazlur Rahman Khan or Mohammad Abdul Ahad Khan. It rejected her evidence that she had approached the police in Australia and complained about the two men. In particular, the RRT (at [56]) did not accept as true that she went to the Hurstville Police Station in September 2008 "given that this was about five months after the applicant had last seen or heard from the husband and his nephew according to her evidence". 16 The RRT accepted that the appellant may not want to return to Bangladesh and may feel embarrassed if she were to return because she had not been able to stay in Australia with Bazlur Rahman Khan. However, the RRT rejected her evidence that she feared that if she were to return to Bangladesh that she and her family would suffer harm from the community because she is separated from her husband and because she married another person. The RRT did not accept that the appellant feared any harm on return to Bangladesh from her own family because she was either separated from her husband or had allegedly married someone else. 17 The RRT accepted that Bazlur Rahman Khan and Mohammad Abdul Ahad Khan could return to Bangladesh at any given time. However, the RRT did not accept that the appellant feared harm from either of those men if they were to return to Bangladesh and she were living in Bangladesh. The RRT rejected her evidence that Bazlur Rahman Khan had made any threats towards her. 18 The RRT found at [61]: In the Tribunal's view there is no plausible evidence before it that the applicant has suffered, or will suffer in the reasonably foreseeable future, serious harm in her country for the reasons that she claims, or that she cannot get protection against harm she fears in her country, because she is a member of a particular social group, namely women in Bangladesh who are separated or divorced or without a male protector, or for any other Convention reason. In the Tribunal's view there is not a real chance that the applicant will suffer persecution for a Convention reason either now or in the reasonably foreseeable future if she returns to Bangladesh. 19 Five separate grounds were relied upon by the appellant in her application for judicial review in the Federal Magistrates Court: 1. The Tribunal committed jurisdictional error by failing to correctly construe and deal with all of the Applicant's claims expressly made or otherwise arising on the material before it, or otherwise failing to ask itself the right question. 2. The Tribunal committed jurisdictional error by breaching section 91R(3) in that it took into account the Applicant's conduct in Australia without the Applicant having satisfied it that the Applicant engaged in the conduct otherwise than for the purpose of strengthening her claim to be a refugee within the meaning of the [Refugees] Convention as amended by the Refugees Protocol. 3. The Tribunal breached section 424A by failing to put, pursuant to section 424A, the information set out in the Departmental records before it relating to Mohammad Abdul Ahad Khan and Bazlur Rahman Khan to the Applicant for comment. 4. The Tribunal committed jurisdictional error by requesting additional information from a natural person at the Department of Immigration and Citizenship pursuant to section 424(2) without complying with section 424(3)(a) and/or section 424B. 5. The Tribunal committed jurisdictional error by requesting additional information from the Applicant pursuant to section 424(2), without specifying the prescribed period within which the Applicant could respond. 20 The Federal Magistrate dealt with each of the grounds. In relation to ground 1 he concluded that in view of the rejection by the RRT of her claims of fear of harm the RRT was not obliged to consider all Convention nexuses which had been advanced by her; in particular, that she might suffer harm by being a woman in Bangladesh. Moreover, he found that she had not advanced such a claim before the RRT. In relation to the second ground, the Federal Magistrate concluded that s 91R(3) of the Migration Act 1958 (Cth) (the Migration Act) had not been engaged at all but, if it had, the RRT's findings made it clear that the conduct in Australia had been engaged in for purposes other than to enhance her Protection visa claims. The third ground was not pressed. Although ground 4 was pressed, the applicant recognised before the Federal Magistrate that she could not succeed on that ground having regard to the decision of the Full Court in SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407. In relation to the fifth ground, the Federal Magistrate considered himself bound by the Full Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109 which held, following a decision of the High Court in Minister for Immigration and Citizenship v SZKTI (2009) 258 ALR 434, that s 424(2) is not engaged by the Tribunal sending an acknowledgement letter. 21 There are four grounds of appeal from the order made by the Federal Magistrate: 1. The Refugee Review Tribunal committed jurisdictional error by breaching section 91R(3) in that it took into account my conduct in Australia without having satisfied itself that I engaged in the conduct otherwise than for the purpose of strengthening my claim to be a refugee within the meaning of the [Refugees] Convention as amended by the Refugees Protocol. … 2. The Refugee Review Tribunal breached section 424A by failing to put, pursuant to section 424A, the information set out in the Departmental records before it relating to Mohammad Abdul Ahad Khan and Bazlur Rahman Khan to me for comment. … 3. The Refugee Review Tribunal committed jurisdictional error by requesting additional information from a natural [person] at the Department of Immigration and Citizenship pursuant to section 424(2) without complying with section 424(3)(a) and/or section 424B. … 4. The Refugee Review Tribunal committed jurisdictional error by requesting additional information from me pursuant to section 424(2), without specifying the prescribed period within which I could respond. … 22 Each of the grounds of appeal are supported by a claim that the Federal Magistrates Court failed to identify the issue. That claim cannot be maintained or accepted in view of the fact that the Federal Magistrate specifically dealt with each of the grounds of the application as each of those grounds were presented to him. None of the grounds of appeal identify the error said to have been made by the Federal Magistrate. 23 Ground 1 of the application before the Federal Magistrate is not pressed on the appeal. However, notwithstanding that ground 3 before the Federal Magistrate was abandoned, it is put as ground 2 of the grounds of appeal. Because it was abandoned before the Federal Magistrate, the appellant should not be able to raise this ground on appeal. I would decline to consider the ground for that reason. In any event, the ground of appeal does not identify the information which it is said the RRT had in the Department's records and the RRT considered to be the reason or part of the reason for affirming the delegate's decision which was not given to the appellant. The appellant's written submissions did not identify that information. In her written submission her complaint was that the RRT erred "in failing to invite me any comment [sic] about Abdul Ahad Khan and Bazlur Rahman Kahn". The appellant did not address this ground in her oral submissions. This ground must be dismissed. 24 The appellant claimed that the RRT had breached s 91R(3) of the Migration Act. Her submissions in relation to that ground relate to the merits of the finding that she was not a person who feared persecution. Insofar as that ground claims that there has been a breach of s 91R(3), the ground must be rejected. 25 Section 91R(3) provides: (3) For the purposes of the application of this Act and the regulations to a particular person: (a) in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol; disregard any conduct engaged in by the person in Australia unless: (b) the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person's claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol. 26 That subsection precludes the decision maker from taking into account any conduct engaged in by the applicant whilst in Australia unless the applicant can satisfy the decision maker that the applicant engaged in that conduct otherwise than for the purpose of strengthening the person's claim to be a refugee. 27 In Minister for Immigration and Citizenship v SZJGV (2009) 259 ALR 595, the High Court concluded that it was not necessary for a decision maker to disregard all of the claimant's conduct in Australia for all purposes relating to the determination of an application for a Protection visa. The conduct which must be disregarded is that which may favour an acceptance of the applicant's claim. The appellant's conduct to which the RRT referred is not conduct of that kind and s 91R(3) did not preclude the RRT from taking that conduct into account. 28 Grounds 3 and 4 can be dealt with together. In respect to ground 3 of the notice of appeal, the Federal Magistrate rightly concluded that he was bound by the decision of the Full Court in SZLPO v Minister for Immigration and Citizenship (2009) 255 ALR 407. In respect to ground 4, the Federal Magistrate concluded that he was bound by the decision of the Full Court in Minister for Immigration and Citizenship v SZNAV [2009] FCAFC 109. 29 The Federal Magistrate was right to conclude that those decisions meant that those grounds before him had to be dismissed. I am also bound by those same decisions even though I am sitting in the appellate jurisdiction. A judge sitting alone in the appellate jurisdiction of the Court is not entitled to refuse to follow a decision of the Full Court of this Court if that judge considers the decisions to be wrong. The point is somewhat academic here because I not only do not consider the two decisions to be wrong but, indeed, I agree with them. In those circumstances, I should follow and apply those decisions which means that those two grounds of appeal must be dismissed. 30 The appeal is dismissed. The appellant must pay the first respondent's costs. I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander.