FEDERAL COURT OF AUSTRALIA SZDDS v Minister for Immigration and Multicultural Affairs [2006] FCA 1428 Migration Act 1958 (Cth) s 424A SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 SZDDS v MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS AND REFUGEE REVIEW TRIBUNAL NSD963 OF 2006 JESSUP J 3 NOVEMBER 2006 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD963 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZDDS Appellant AND: MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE OF ORDER: 3 NOVEMBER 2006 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The appeal be allowed. 2. The orders made by the Federal Magistrates Court on 27 April 2006 be set aside, and in place thereof it be ordered that: a. a writ of certiorari issue directed to the Refugee Review Tribunal removing its decision made on 27 February 2004 into this court to be quashed; b. a writ of mandamus issue directed to the Refugee Review Tribunal requiring it to review according to law the decision made by a delegate of the first respondent on 28 May 2001 to refuse to grant a protection visa to the appellant. c. the first respondent pay the appellant's costs of the proceeding in that court. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY NSD963 OF 2006 ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA BETWEEN: SZDDS Appellant AND: MINISTER FOR IMMIGRATION MULTICULTURAL AND INDIGENOUS AFFAIRS First Respondent REFUGEE REVIEW TRIBUNAL Second Respondent JUDGE: JESSUP J DATE: 3 November 2006 PLACE: SYDNEY REASONS FOR JUDGMENT 1 This is an appeal from a judgment of the Federal Magistrates Court given on 27 April 2006 dismissing an application pursuant to s 39B of the Judiciary Act 1903 (Cth) for writs of certiorari, mandamus and prohibition in relation to a decision of the Refugee Review Tribunal made on 27 February 2004, and handed down on 18 March 2004. By that decision, the Tribunal affirmed a decision of a delegate of the respondent Minister, made on 28 May 2001, to refuse to grant a protection visa to the applicant pursuant to the Migration Act 1958 (Cth) ('the Act'). 2 The appellant is a citizen of Bangladesh, and lived there prior to her arrival in Australia on 15 February 2001 on a visitor visa, which allowed her to stay until 15 March 2001. On 14 March 2001, she made the application for a protection visa which led to the refusal by the delegate to which I have referred. 3 In her application for a protection visa, the appellant relied upon certain events which, she claimed, had occurred in Bangladesh and which centred around her husband's prominence in the Bangladesh National Party, his having been kidnapped by his political opponents, the appellant's fear that the same or like-minded persons would seek to persecute her and her children, and the absence of any protection from the Bangladesh government, because of its political alignment with the wrongdoers whom she feared. In her application for review in the Tribunal, the appellant relied substantially upon the same version of events, but provided a detailed, comprehensive and coherent written elaboration with respect to those events. 4 About three weeks before the day appointed for the appellant's personal appearance before the Tribunal, an adviser whom she had, apparently, recently engaged sent a further written submission to the Tribunal. Included with that written submission was another detailed, comprehensive and coherent statement by the appellant herself. However, that statement departed substantially from the appellant's previous statement, and from the basis upon which she had originally applied for a protection visa. Indeed, the appellant admitted as much in the opening paragraphs of her new statement, which read as follows: 'I…am stating that whatever I have said in the past and produced to the DIMIA and further to the RRT was not correct. My previous statement was not completely true, as I had to sign it in a terrible mental condition. Before rectification of my story and telling anything new I would like to apologise for lodging an incorrect statement. I was forced to do so and I am extremely sorry for having given incorrect information previously. I know you will ask why I did not tell the truth in the first place!? Actually, I could not. After having had a lot of bad experiences and leading a miserable life for a long period of time in Bangladesh and then in Sydney I lost all rationality which would prompt me to judge the right and wrong of that dilemma. I did not know what I was doing or what I should have done. My only target was to avoid the ongoing harassment, life threat, blackmail and get out of the hell to a sanctuary where I could live without fear and with new hope and freedom.' 5 Needless to say, the appellant's apparent preparedness to support her protection visa application with false statements, and to make a lengthy submission to the Tribunal in which those false statements were substantially elaborated upon, were matters which had something of an impact upon the appellant's credibility before the Tribunal. If the appellant was prepared to falsify the record in these ways, the Tribunal was entitled to ask, as it did, why it should have any particular confidence in the truth of the new version of events contained in the appellant's statement most recently submitted. I need not set out the detail of that statement: suffice it to say that it did not contain any suggestion that the appellant's husband had been kidnapped or that the appellant was in fear of persecution on account of her own, or her husband's, political opinion. Based upon the appellant's new statement, the Tribunal characterised her claim as being a fear of persecution by reason of her membership of a particular social group, being: "middle class Muslim separated women with children in Bangladesh who are widely known to have an extra-marital affair." 6 The Tribunal held that the appellant was not a credible witness. There were several reasons for this holding, but one of them was, quite obviously, the appellant's change of story. The appellant justified that change by reference to what she said was the unsatisfactory service which she received from a particular migration agent, Ms Tahmina Rahim (also at times referred to as Ms Tahmina). In its decision, the Tribunal said: 'She did not state in the application at the appropriate point that Ms Tahmina was acting for her on the protection visa matter and there is no evidence on the DIMIA file, that Ms Tahmina was presumed to be so acting.' This passage is contained in a section of the Tribunal's decision headed "Discussion", in which the Tribunal refers to several reasons for its concerns as to the appellant's credibility. The Tribunal did not accept the appellant's explanation as to why she changed her story, and her failure to mention, in her visa application, that Ms Tahmina was acting for her was a factor in that conclusion. 7 In her application for judicial review in the Federal Magistrates Court, the appellant contended that the absence from her visa application of a statement that Ms Tahmina was acting for her constituted "information" within the meaning of s 424A of the Act, and that she had never been given that information in writing as required by the Act, nor told why the Tribunal might consider that such information was relevant to the review. Dealing with this and another aspect in which the appellant relied upon a failure to comply with s 424A, the Federal Magistrate said: 'I consider that the Tribunal decision reflects a desire by the Tribunal to be fair to the Applicant by considering every point in her favour. I am satisfied that the findings adverse to the Applicant's credibility do not breach s 424A of the Migration Act, in that the material was either dealt with in the s 424A letters to the applicant or reflect no more than a conclusion reached as a result of consideration of information supplied by the Applicant herself. In the latter case, the matters clearly attract the protection of s 424A(3)(b).' Relevantly to this aspect, the appellant appealed upon the ground that the Federal Magistrate had been in error in holding that the information had been dealt with in letters sent under s 424A, or was information provided by the appellant herself, to which information, by the operation of par (b) of subs (3), s 424a(1) does not apply. 8 In the proceeding before me, Mr Free, who represented the respondent Minister, accepted that the omission from the appellant's protection visa application of any reference to the fact that she was being assisted by a particular adviser was "information" within the terms of s 424A(1) and was part of the reason why the Tribunal affirmed the decision of the delegate. He also accepted that this information had not been the subject of any written communication to the appellant as required by that subsection. He submitted, however, that that information had been given to the Tribunal by the appellant herself, with the result that the operation of the section was excluded in the circumstances by subs (3)(b). 9 Mr Free submitted that the appellant herself had provided a copy of her original protection visa application to the Tribunal on the occasion of her appearance before the Tribunal. He drew my attention to the following passage of the transcribed tape of the hearing before the Tribunal: 'ADVISER Can we just give to the tribunal the client has – that's a copy of exactly the one and this is the correction in red --- Tribunal member Of that original application? Adviser Of the original application. Tribunal member Thank you.' The document thus provided to the Tribunal was not part of the record before the Federal Magistrates Court, or here. The record contained a copy of the application as originally made. Mr Free submitted that the version handed to the Tribunal would surely have been, at least relevantly, the same as the version originally filed. That might seem likely, but manifestly the best evidence of the relevant fact was not before the Federal Magistrate. The Federal Magistrate said nothing about the matter, and made no relevant findings. In the circumstances, I do not believe it would be safe for me to find not only that the applicant (through her adviser) handed a copy of her protection visa application to the Tribunal during the hearing, but also that it was identical in all relevant respects to the application as originally filed. 10 Apart from the evidentiary difficulties to which I have referred, the respondent's point is countered, in my view, by what Moore J said (with the apparent assent of Weinberg and Allsop JJ) in SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 ('SZEEU'), [20]: 'If the Tribunal comes to know of what was said by an applicant at a point before any application for review was made, and views what was said at that time as material to its assessment of what was later said by an applicant, then the mere adoption of the earlier statement during the review process would not result in the knowledge (and relevantly information in the present appeal) being comprehended by s 424A(3)(b). Different considerations could arise if it was clear the Tribunal treated only the adoption of the earlier statement as the fact relevant to its consideration of the application in the review. In those circumstances the fact of adoption would almost certainly constitute information provided by the applicant in the application on which the exclusion would operate.' In the present case, insofar as the omission of any reference to the role of her migration adviser from the appellant's visa application constituted the information that the Tribunal considered would be the reason for affirming the decision under review, that information was relevant, and was adverse to the appellant, because it existed at the time of the original application. The circumstance which worked to the appellant's disadvantage was her failure to mention, on the original occasion, a fact on which she later sought to rely as justification for the terms of that application. That the information would have been apparent to a reader of the application when re-supplied to the Tribunal at the hearing was, in my assessment, a matter which should be regarded as irrelevant to the significance of the information against the appellant's case in the Tribunal. In my view, to use the words of Moore J, the mere adoption of the earlier statement during the review process did not result in the knowledge (and relevantly information) being comprehended by s 424A(3)(b). I cannot accept the finding by the Federal Magistrate that the information in question had been supplied by the appellant herself. 11 I consider, therefore, that, in the course of a decision which was otherwise meticulous and comprehensive, the Tribunal failed to comply with s 424A by not providing the appellant with written notice of the information constituted by the absence of any reference in her protection visa application to the fact that Ms Tahmina was acting for her at the time. I am obliged by SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 79 ALJR 1009 to treat that failure as a constructive failure to exercise jurisdiction and to hold that the Federal Magistrate erred in this regard. Subject only to the matter to which I next turn, the appellant has made good her case for certiorari and mandamus. 12 Mr Free next submitted that, even if there had been a failure to comply with s 424A, the Tribunal's finding that the appellant could change her place of residence within Bangladesh in such a way as to avoid the forces and influences from which she feared persecution would provide an independent ground for its decision to affirm the decision of the delegate. In this respect, under the heading 'Re-location', the Tribunal said: 'In relation to avoidance of harm by re-location in Bangladesh, the Tribunal notes that the applicant is well educated, speaks several languages, has a long work history at a managerial level and, from the evidence is currently unfettered by her children who are in her husband's custody. Her belief that, wherever she is her husband and his political allies would find her, ignores the fact that there are over 128 million people in Bangladesh which, geographically as well, is a relatively large county. Were she for example, to relocate to or near the area of Southern Bangladesh where her parents live, the protection of her father is likely to be more available to her. The Tribunal is also satisfied that State protection from her husband is available to her. The Tribunal finds, from the evidence before it, that the harm if any to her is localised and that relocation elsewhere in Bangladesh is reasonable for the applicant.' On the conclusions which I have reached above, the Tribunal's failure to comply with s 424A related to its assessment of the appellant's credibility. In these circumstances, the issue which Mr Free's submission raises is whether the Tribunal's conclusion, contained in the passage quoted above, should be regarded as 'entirely independent' of its assessment of the appellant's credibility: see SZEEU at [231] and [233] per Allsop J; Ex parte Aala (2000) 204 CLR 82, 109. 13 The appellant's belief, to which the Tribunal referred in the passage quoted above, was expressed in a number of different, but similar, ways in her written statements to the Tribunal, and in her evidence at the hearing. In her second written statement, the appellant said: 'Meantime soon after BNP came into power in February 2002 my husband, through some BNP local hooligans conducted an operation at the residence of my parents in Cox's Bazaar where my children also live. They physically assaulted my father and snatched my children from my parent's custody to their father in Dhaka. In fear my father did not dare to report this to the police. I learned this much later and immediately rang my husband considering the safety of my children. He asked me to return and surrender to him as soon as is possible. He also threatened me against divulging the names of his allied BNP leaders' name to the refugee department. He threatened that if I did not listen to him he would take revenge on my parents and brother. Even if it required him to come to Australia he would kill me, which I later learned that he tried.' In the same statement, the appellant also said: 'The Tribunal might ask why I am not willing to return to my country now and what would happen if I were to return. In this regard I can say that there is no way that I could return to my country and there is no corner of the country I would be able to live with peace and dignity. I will be harassed, persecuted and intimidated by these abovementioned people if they come to know of my presence. In a typical Bangladeshi Muslim society a woman like me would be treated as a fallen woman. I have been abandoned by my husband and deprived the society in various ways. I would be even ill treated by my next-door neighbour if they came to know of my scandal and for my outspoken non-Muslim attitude. I wouldn't have the dignity to live a prestigious life anywhere in Bangladesh. It is not a favourable option for me to marry again as no man would marry me with honest attitude. For me it would be difficult to find a job there. The scandal and the harsh rumour against me in Dhaka would seriously affect me in finding a right position anywhere in Bangladesh. Moreover I might be the victim of the political characters – with whom I became introduced through Mr Hifzur Rahman or my husband. My death would be definite at the wave of their finger. It is also not unlikely that I could be gang raped like a Tinni the renowned model and cinema actress Tinni who has recently been murdered and found; floating in the river after being gang raped by some influential political personalities and former student leader and parliament member.' And she said: 'I know that if I were to return to my country I would share a fate like Tinni. For me to return to Bangladesh would be like signing my own death sentence. I was not a political leader or a supporter, I was not a public figure, my only sin was that I wanted to establish my own career and life as such amidst the protests from the typical Bangladeshi Muslim society.' And, in the same statement, she continued: 'I believe as a human being I am not asking for too much. I would like to spend the rest of my life in Australia with all my feminine dignity and freedom like a million others. I know that the Tribunal might say that the judiciary system in Bangladesh is country and if I were harmed in Bangladesh I would get justice there. How true this statement is I don't know but if the tribunal would analyze impartially the score of news relating innocent women being gang raped and killed almost everyday in Bangladesh and the role of police in this regard then they would certainly see the ultimate truth of this scenario. I know that if I am dead or a victim of gang rape there would be some formal police inquiry and the judicial process would keep on going for ages but the ultimate loser would be me. Because after being gang raped I couldn't possible live in that society and for that matter it would be preferable for me to die to prove that I am gone from this world. Therefore, I wouldn't have the opportunity to see the impartiality of justice after the incidence takes place.' Dealing with the course of the appellant's evidence at the hearing, in its decision the Tribunal said: 'The Tribunal then drew attention to independent information on Bangladesh was to the effect that protection was available to women under the law in cases of domestic violence. Civil divorce was also not uncommon amongst Bangladesh middle class women like herself and the law provided protection for them in such cases. The society was by general accounts a tolerant one and particularly so in a large city like Dhaka, and that included the attitude towards women who had had extra marital affairs. It was also relatively simple for her husband to divorce her under Muslim law and take other wives. There were too provisions, albeit more limited, for her to divorce her husband under religious law. She said in response that it was much easier for women from wealthy families to divorce and leave their husbands than for her to do so. As to him divorcing her, his pride would not let him do it. It was that which leading to his effort to "get" her.' And finally, under the heading "Applicant's Closing Statement", the Tribunal said: 'The applicant said that, in Bangladesh, an adult woman without a male supporter like a husband, father or brother, was seriously discriminated against. In her own case, she had broken the rules, by refusing to follow her husband's wishes to cease work, stay home, and look after the children and him. She was even more at risk because she had had an affair because she had had an affair with a married man (Mr Rahman) which has come public knowledge. She said that her parents had lost patience with her and her friends of other family wanted nothing more to do with her. The fact that her husband's family was wealthy and politically powerful meant that the authorities would not protect her. The Tribunal observed that Bangladesh was a country of 128 million people and that she was well educated and had a good work record. She could thus live elsewhere in Bangladesh. For example near her parents in Cox's Bazaar or in the large city of Chittagong or elsewhere in Dhaka itself, which was a very large city. She disagreed and said that her husband's connections would find her wherever she was.' 14 In its own consideration of the appellant's claims, the Tribunal said: 'The independent information, which the Tribunal accepts, is that Bangladesh is a tolerant society, which accepts without difficulty different approaches to the practice of Islam. The society accepts without difficulty, particularly in the capital Dhaka, working Muslim professional women; a class to which the applicant belongs. There are constitutional and other legal protections preventing discrimination against them. There is a too, significant level of female participation in tertiary education, which a common aspiration for middle and upper class families.' The Tribunal continued: 'The Tribunal, on the basis of the independent information and her own evidence, accepts that she may have been beaten by her husband at her parent's house as she describes. The Tribunal is not satisfied, from the evidence before it, as to the severity of her injuries. That the police action on her complaint because of her husband's political connections is not however accepted by the tribunal, nor is the fact that she reported it to the police, on the evidence before it. The independent information, which the Tribunal accepts, is that there is legal protection for victims of domestic violence and that Bangladesh has advised the international community of steps taken to improve the lot of women, including protection from domestic violence. Police are obliged to take action. As an educated woman, the Tribunal cannot believe that she did not know this and insists that her complaint, if she in fact made one, be heard at a more senior police level.' Having referred to the appellant's statement that she had an affair with a gentleman who was then an officer of the Australian High Commission at Dhaka, and that the affair became widely known, the Tribunal accepted that, as a result, the appellant was ostracised by her friends, and her brothers and sisters. The Tribunal continued: 'However, the independent information, which the Tribunal accepts, is that Bangladesh and particularly Dhaka, is a tolerant society and there is no evidence that people involved in de facto relationships or extra-marital affairs are the subject of widespread opprobrium. That she has been ostracised by her friends and her family, and was evicted from the women's refuge in Dhaka for her breach of the social mores expected by her family and friends of her, is understandable, but that social stigma, again does not constitute of itself serious harm as described in the legislation. As to being without an adult male to act for her, while the applicant has said that her siblings and friends want nothing more to do with her and that her parents have lost patience, she was able to place her children with them, before coming to Australia. Her father thus remains, the tribunal finds, an adult male, supporter for her.' 15 Mr Free submitted that the Tribunal's disagreement with the appellant's prediction of the dire consequences that would follow her return to Bangladesh was a quite different thing from the Tribunal's refusal to accept her evidence with respect to matters of fact which were said to have occurred in the past. He submitted that for the Tribunal to have disagreed with the appellant was not necessarily the same thing as the rejection of particular evidence on the grounds of credibility. 16 In a court, the appellant's predictions as to the likely course of future events, should she be obliged to return to Bangladesh, would not be admissible. She would be entitled to give evidence only as to facts, and an adverse view as to her credibility would be directly relevant to the question whether that evidence should be accepted. In the Tribunal, however, although the word 'evidence' is often used to refer to the totality of an applicant's statements received by the Tribunal, the contents of such statements will commonly include many matters which do not constitute evidence at all. There is, of course, nothing inappropriate about that circumstance in the proceedings of a body such as the Tribunal, and it might be said in the present case that the particular question which the Tribunal was obliged to address – whether the appellant had a well-founded fear of persecution for a Convention-related reason – lent itself to the reception of the appellant's own statements expressing her apprehensions as to future events. Relevantly to the matter of relocation, the question before the Tribunal was whether the appellant's fear – assuming she had one – was well-founded. The appellant's case in this regard relied substantially upon her own fervently-expressed apprehensions which were, she claimed in effect, informed by her own experience. Although the Tribunal did not say, in terms, that it rejected the appellant's statements in this regard, the fact is that its conclusion as expressed in the passage set out in par 12 above is quite inconsistent with those statements. Given the role and function of the Tribunal, and specifically the nature of the question which it was required to determine, it would, in my view, be unsafe to make fine a distinction between issues of credibility in the context of statements about past events, on the one hand, and the matter of agreeing or disagreeing with the appellant's apprehensions as to the future course of events, on the other hand. In other words, I do not believe that I can exclude the possibility that the Tribunal's adverse findings as to the appellant's credibility had such an impact on its reception of her written and oral statements generally as to have caused it to discount heavily, to say the least, her apprehensions concerning the treatment she would receive if she were obliged to live anywhere in Bangladesh. 17 In the circumstances, I cannot conclude that the Tribunal's decision on the matter of relocation was entirely independent of its failure to follow s 424A of the Act. The appellant will, therefore, be granted the relief which she seeks. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jessup. Associate: Dated: 3 November 2006 Counsel for the Appellant: The Appellant appeared in person Counsel for the Respondent: S Free Solicitor for the Respondent: Sparke Helmore Date of Hearing: 30 October 2006 Date of Judgment: 3 November 2006