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MZAJD v Minister for Immigration & Anor [2016] FCCA 2697 (20 October 2016)

Last Updated: 21 October 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

MZAJD v MINISTER FOR IMMIGRATION & ANOR


Catchwords:
MIGRATION – Protection (Class XA) visa – applicant a Pakistani Pashtun Sunni-Islam – complementary protection claim rejected by Tribunal.

REASONS FOR DECISION – “for the reasons set out above” used to reject claims to Convention-based protection as well as claims to complementary protection claims notwithstanding different criteria applied to each claim and no separate differentiation used by the Tribunal when rejecting both claims.

COMPLEMENTARY PROTECTION CLAIM – Whether made on material – whether Tribunal property identified issues for its consideration – Tribunal failed to properly address claim.

JURISDICTIONAL ERROR ESTABLISHED – Constitutional writs issued.


Legislation:

Cases cited:
Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473
Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003)
77 ALJR 1088
F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295
Htun v Minister for Immigration and Border Protection (2001) 194 ALR 244
Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1
Plaintiff M61/2010E v Commonwealth & Ors [2010] HCA 41; (2010) 243 CLR 319
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774
SZSXE v Minister for Immigration and Border Protection [2014] FCA 867

Justice Mark Weinberg, ‘Adequate, Sufficient and Excessive Reasons’ (2014)
5 Victorian Judicial Scholarship


Applicant:
MZAJD

First Respondent:
MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent:
ADMINISTRATIVE APPEALS TRIBUNAL

File Number:
MLG 1546 of 2014

Judgment of:
Judge Wilson

Hearing date:
17-18 December 2015 & 18 May 2016

Date of Last Submission:
18 May 2016

Delivered at:
Melbourne

Delivered on:
20 October 2016


REPRESENTATION

Counsel for the Applicant:
Mr M. Albert

Solicitors for the Applicant:
Clothier Anderson & Associates

Counsel for the First Respondent:
Mr S. Rebikoff

Solicitors for the First Respondent:
Australian Government Solicitor

ORDERS

(1) The name of the second respondent is amended to “Administrative Appeals Tribunal”.
(2) Leave is granted to the applicant to amend the grounds of review in the amended application filed 19 November 2014.
(3) An order in the nature of a writ of certiorari issue directed to the second respondent quashing the decision made on 30 June 2014.
(4) An order in the nature of a writ of mandamus issue directing the
second respondent to hear and determine the application for review according to law.
(5) The first respondent pay the applicant’s costs.


FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 1546 of 2014

MZAJD

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent


REASONS FOR JUDGMENT

Introduction

  1. By amended application filed 19 November 2014, the applicant alleged that the Refugee Review Tribunal, now the Administrative Appeals Tribunal (“the Tribunal”), fell into jurisdictional error in affirming the decision of the delegate of the first respondent (“the Minister”) to refuse to grant the applicant a Protection (Class XA) visa.[1]
  2. In the amended application for review in this Court, the applicant advanced two grounds of review, namely –
  3. The Minister asserted that the Tribunal made no jurisdictional error.
    As second respondent, the Tribunal filed a submitting appearance.[3]

Synopsis

  1. For the reasons that follow, in my judgment both grounds of review have succeeded and I order that constitutional writs be issued.

Relevant background

  1. On 10 July 2012 the applicant applied for a Protection (Class XA) visa.[4] In his visa application, the applicant recorded that he was born in Deolai Swat, Pakistan, that he belonged to the Pashtun ethnic group and that he was Sunni-Islam by religion. The applicant stated in his visa application that he did not wish to go back to Pakistan. He said he left Pakistan because he faced persecution from the Taliban and from Pakistani authorities. The applicant said he feared for his extended family. He also stated he had been assaulted by the Taliban and had received death threats. The applicant said that members of his family and his friends had been killed and his wife had been badly assaulted. He said he feared he would be severely injured or killed if he went back to Pakistan. In support of his assertions of that fear, the applicant stated that he was opposed to the Taliban and the Pakistan Army.
    He stated that one of his cousins, LA, had been killed by the army. The applicant stated he would provide details of his political connection, activities and experiences as soon as possible following the lodgment of the visa application.
  2. In his visa application the applicant stated he had been targeted by the Pakistani authorities. He stated he would supply particulars as soon as possible following the lodgment of his visa application.
  3. The applicant made a statutory declaration on 20 September 2012.[5]
    Of the more important matters raised in that statutory declaration,
    the following were among them –
    1. the applicant’s father was friendly with a person later appointed to the presidency of the Awami National Party (“ANP”);
    2. the applicant was married with three sons, all of whom lived in Pakistan;
    1. the applicant’s family were ANP supporters;
    1. in August 2008, seven or eight persons thought to be Taliban at a bazaar approached the applicant and his three cousins and accused them of being un-Islamic as they watched movies, drank alcohol and watched female performers. Upon refusing to join with them, the seven or eight Taliban hit the applicant and his three cousins with the butt of their guns and kicked them;
    2. later in August 2008, eight or nine armed Taliban entered the applicant’s home, forcibly removed the applicant and his cousin I and arranged for I to be shot in front of a crowd;
    3. the applicant’s cousin LA joined the Taliban;
    4. early in 2009, the applicant’s village council told members of the village to surrender to the army and if people did that, those who surrendered would not be harmed. The applicant and his cousin MS told their other cousin LA to surrender, which he did, following which the Taliban accused the applicant of being an army spy who had forced one of his number to surrender whereupon the applicant travelled to Karachi;
    5. in September 2009 the applicant left Pakistan on a ship that sailed for some months then sank off the coast of Lebanon near Syria when the applicant was on board. The applicant said he was rescued from the water by the United Nations, taken to an hospital in Lebanon then returned to Karachi;
    6. in April 2010 the Pakistan Army shot dead the applicant’s cousin LA and four others then in custody, dumping their bodies in farms near the applicant’s village;
    7. the applicant and his cousin MS began expressing their opinions openly in the community and accusing the army of supporting the Taliban;
    8. in December 2010 the army dumped more bodies of people from the area, after which the applicant protested against the actions of the army along with many other people;
    1. the day after that protest, four of the applicant’s friends were killed and their bodies were dumped near the village whereupon the applicant left his village and went to Karachi;
    1. the day after the applicant left his village, the army came to his house asking for him at which time his wife was struck by one or more army personnel leading to the loss of the applicant’s fourth child; and
    2. the applicant then travelled to Australia.

The delegate’s decision

  1. The delegate refused the applicant’s visa application by decision dated 5 September 2013.
  2. Being dissatisfied with the delegate’s decision, the applicant applied for review before the Tribunal.[6]

Before the Tribunal

  1. The applicant retained Refugee and Immigration Legal Centre Inc (“RILC”) to make submissions on his behalf. RILC provided the Tribunal with a 33-page densely typed submission that addressed not only the legal and factual matters associated with a protection visa but also a detailed submission in relation to the matters that concerned the delegate.[7]
  2. The applicant also put before the Tribunal a further statutory declaration in relation to his involvement with the ANP and other matters.[8] Significantly, in paragraphs 47 and 48 of his statutory declaration the applicant declared as follows –
  3. On 2 April 2014 the Tribunal heard evidence then adjourned its hearing until 30 April 2014.
  4. On 30 June 2014 the Tribunal decided to affirm the delegate’s decision, with the consequence that the applicant’s visa application was refused.[10]

In this Court

  1. The two grounds of review of the Tribunal’s decision have been
    set out above. The hearing before me was conducted on
    17 and 18 December 2015. However, the hearing did not conclude. Leave was given to the parties to file written submissions.[11] Each party filed additional submissions by the required dates.[12] Each party sought leave to be heard further which I granted and I heard a further half-day of argument on 18 May 2016 on which date I reserved my decision.
  2. Before me the applicant sought leave to file and serve a proposed further amended application. In it, ground 1 as it appeared in the amended application and which has been set out in paragraph two of these reasons, was deleted. Paragraph 2 of the grounds as set out in the amended application was pressed and had the effect of becoming the first ground of review, while its numbering as ground 2 remained.
    The new ground of review, for which leave was sought, was numbered as ground 3 and was called ground 3 throughout this hearing, even though it was in truth the new second ground. It was in the following terms –
  3. Mr Rebikoff, counsel for the Minister, did not take any point that the application for leave to rely on ground 3 was late. Very helpfully and very pragmatically, Mr Rebikoff argued the case in relation to the
    first ground on the first and second days of the hearing as did
    Mr Albert, counsel for the applicant, then both counsel argued the second ground (called ground 3) on 18 May 2016.
  4. The first matter for me is a consideration of the grant of leave to amend the application in the form of annexure “SV-1” to the affidavit of Sanmati Verma affirmed 16 December 2015.
  5. Having regard to the length of time each party was given to address matters raised in ground 3 (five months in all) and having regard to the sophistication and complexity of the arguments presented by counsel in respect of ground 3 it may fairly be said that –
    1. all parties have not been disadvantaged in the presentation of argument on ground 3;
    2. ground 3 raised a difficult and important issue in the determination of this litigation;
    1. both counsel presented extremely carefully considered,
      well-articulated and very helpful arguments in respect of
      ground 3.
  6. In my view it is appropriate to grant leave to the applicant to amend his application in the form of the amendment, being annexure “SV-1”
    to the affidavit of Sanmati Verma affirmed 16 December 2015.
    I make such an order.

The first ground of review

  1. This ground focused on the applicant’s complementary protection claim.
  2. Mr Albert contended that the Tribunal’s reasoning for its rejection of the applicant’s application for complementary protection was reposed wholly in paragraph 70 of the Tribunal’s reasons. In that paragraph, the Tribunal reasoned as follows –
  3. Mr Albert submitted that the Tribunal addressed issues relating to the convention-based protection up to paragraph 70 of its reasons,
    then disposed of the applicant’s complementary protection claim in paragraph 70 stating “[f]or the reasons set out above”, then it rejected the applicant’s complementary protection application. Mr Albert submitted that nothing in the reasoning that the Tribunal applied in the passages that preceded paragraph 70 addressed factual and legal matters that were pertinent solely to complementary protection issues under s.36(2)(aa) of the Migration Act 1958 (Cth) (“the Act”).
    Mr Albert put the matter in the following terms –
  4. In reliance upon the observations of the High Court of Australia in Dranichnikov v Minister for Immigration and Multicultural Affairs[16] (“Dranichnikov”) and in reliance upon the observations of the
    Full Court of the Federal Court of Australia in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)[17] (“NABE”) Mr Albert submitted that an integer of a claim was raised thereby requiring the Tribunal to consider the claim so made. He submitted that material sufficient to raise issues of complementary protection had been provided to the Tribunal but that the Tribunal did not consider the matter and therefore fell into jurisdictional error.
  5. In developing his submission, Mr Albert took me to a number of discrete issues that incrementally raised the applicant’s complementary protection claim. It is necessary to catalogue them as follows -
    1. first, Mr Albert pointed to the applicant’s answer to question 45 on his visa application where, in answer to the question of what the applicant feared if he went back to Pakistan, the applicant stated “I fear I will be severely injured or killed”;[18]
    2. second, Mr Albert pointed to the applicant’s answer to question 46 on the applicant’s visa application where the applicant stated “I fear harm from the Pakistan authorities including the
      Pakistan Army. I also fear harm from the Taliban, & from my extended family”.[19] Mr Albert submitted that the fact of the Army turning on one of the people it should protect was an integer directed to arbitrary deprivation of life;
    1. third, Mr Albert pointed to paragraph 57 of the applicant’s statutory declaration dated 20 September 2012 in which the applicant stated that if returned to Pakistan, he feared he would continue to be targeted and killed by the Taliban or by the Pakistan Army just as others in his family and community had been;
    1. fourth, Mr Albert pointed to the written submissions prepared on the applicant’s behalf by RILC. He submitted that paragraph 3(b) of those submissions was “an articulation of the integer”.[20] There, the submission was expressed in the following terms –
      • b. The applicant fears that if he is forced to return to Pakistan he will be kidnapped, physically and psychologically mistreated, tortured and/or killed by members of the Taliban, extremist groups and the Pakistani army. This constitutes serious harm and systematic and discriminatory conduct as stipulated by
        s 91R of the Migration Act 1958, and therefore amounts to persecution.[21]
    2. fifth, Mr Albert pointed to a different passage of RILC’s submissions where the submission stated that the applicant
      “also fears harm at the hands of the Pakistani Army”;[22]
    3. sixth, pointing to yet another passage of RILC’s submissions, under the specific heading (that was written in bold) of “Complementary protection”, Mr Albert relied on the following –
      • We submit that there is a real risk that [the applicant] will be subjected to this significant harm at the hands of the Sunni extremists and the Pakistani army based on the facts of his case as outlined in this submission. The harm feared by [the applicant] is not one faced by the population of Pakistan generally, and [the applicant] will not be adequately protected against this harm by the State.[23] (original emphasis)
    4. seventh, in the hearing before the Tribunal, Mr Albert pointed to an exchange between the Tribunal member and the applicant.
      The applicant gave evidence through an interpreter. The exchange was in the following terms –
      • MEMBER: Yes. But what I’m just trying to understand is why the Army will harm you. Is it because they harmed your cousin?
      • INTERPRETER: It’s not just my cousin, it’s also the members of the committee over there who they had taken – I mean, eliminated from the earth. It’s not just a personal issue of mine with my cousin, it’s also the whole village’s issue with them.
      • MEMBER: So are you saying that the Army will harm you – I’m sorry. I still don’t quite understand why the Army will harm you. Is it because you have spoken out against the Army killing people in a village?
      • INTERPRETER: Exactly.[24]
  6. Those issues raised matters that the Tribunal needed to directly consider not under a more general (even generic) rubric of considerations slanted toward s.36(2)(a) of the Act. Instead,
    the Tribunal disposed of the Convention-based claims by stating in paragraph 69 of its reasons that the Tribunal did not accept that the applicant had a well-founded fear of persecution because of his political opinion or because of any other convention reason, separately or cumulatively.
  7. In an undifferentiated manner, the Tribunal then stated in paragraph 70 that “[f]or the reasons set out above”, the complementary protection claim was not made out.
  8. Mr Albert submitted that the vice in the Tribunal’s reasoning,
    as exposed in paragraph 70, was the Tribunal stating “[f]or the reasons set out above” in circumstances where those “above reasons” did not address the criteria the Tribunal said was the basis for that conclusion. When pressed to make good that submission, Mr Albert argued that the expression “[f]or the reasons above” was capable of being understood as a reference to the matters canvassed between paragraphs 61 and 70 of the Tribunal’s reasons. Mr Albert contended that the Tribunal member repeatedly used a form of wording (a mantra, he called it) that imported never more or less than a refugee Convention analysis.
    Mr Albert submitted that instead, the Tribunal should have analysed the facts, as found, but in reference specifically to the complementary protection integer of arbitrary deprivation of life.
  9. The applicant relied on the decision of Robertson J in SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship[25] (“SZSGA”) where his Honour cautioned a tribunal against using unspecified “findings of fact above”.[26] By parity of reasoning, the applicant before me submitted that “[f]or the reasons set out above” imparted identical problems to those to which Robertson J adverted.
  10. At the heart of that submission was Mr Albert’s contention that when the Tribunal rejected the applicant’s Convention grounds, it said nothing about the risk of arbitrary deprivation of life more generally under the rubric of complementary protection.
  11. On behalf the Minister, Mr Rebikoff submitted it was not erroneous for the Tribunal to make factual findings in the context of the Tribunal’s consideration of the applicant’s claims under the Convention and then apply the complementary protection test to those findings so long as the Tribunal applied the right test and dealt with all the applicant’s claims. Mr Rebikoff submitted that in the material before the Tribunal, no independent claim was advanced by the applicant to found the complementary protection claim the applicant asserted on this review before me.
  12. Mr Rebikoff placed reliance upon the decision of Robertson J in SZSGA, as did Mr Albert, but for different reasons. In that case, Robertson J held that there was not sufficient material before the Tribunal to raise a claim under complementary protection. His Honour held that the so-called complementary protection claim in that case was not freestanding and instead was linked to aspects of the case that were factually specific and irrelevant for present purposes. Robertson J held that the claim advanced before his Honour was not apparent on the face of the material before the tribunal or squarely or sufficiently raised by the material.
  13. In SZSGA, Robertson J devoted a good deal of time in his Honour’s reasons to explaining the elements of a claim, as articulated in authorities such as Htun v Minister for Immigration and Border Protection[27] (“Htun”), Dranichnikov, NABE and Plaintiff M61/2010E v Commonwealth & Ors[28] (“Plaintiff M61”). In drawing together the threads of those authorities, Robertson J held –
    1. a claim not expressly advanced would attract the review obligation of the tribunal when it was apparent on the face of the material before the tribunal (NABE);
    2. the tribunal was not required to only deal with claims expressly articulated (NABE);
    1. the tribunal was not obliged to deal with claims that were not articulated and which did not clearly arise on the materials before it (NABE);
    1. the tribunal must deal with a clearly articulated argument relying on established facts (Dranichnikov); and
    2. a decision of the tribunal must be considered in the light of the basis on which the application was made, not upon an entirely different basis which may appear to applicant, or an applicant’s legal representatives, at some later stage.[29]
  14. Robertson J went on to hold that no jurisdictional error was committed in the Tribunal referring to its factual findings because the claim under complementary protection as articulated could not survive those findings of fact.
  15. One of the first tasks for me in the substantive consideration of the first ground of review was whether –
    1. a “claim” in the nature of complementary protection under s.36(2)(aa) of the Act was in fact made; and
    2. if one was in fact made, whether the Tribunal considered that claim in terms that involved s.36(2)(aa) issues as opposed to those that involved s.36(2)(a) issues.
  16. In my opinion a claim that enlivened s.36(2)(aa) of the Act was in fact raised on the material before the Tribunal. To that extent, I disagree with Mr Rebikoff’s contention that no freestanding claim was made. One was made. The thornier question is whether the Tribunal considered that claim. In my view, it did not.
  17. Let me explain my reasoning.
  18. The applicant completed his visa application answering questions 45 and 46 in a manner that identified an integer directed to arbitrary deprivation of life. So too did the information he set out in paragraph 57 of his statutory declaration dated 20 September 2012. The RILC submission at paragraph 3(b) squarely raised arbitrary deprivation of life as did part three of RILC’s submission under the heading “Complementary protection”. The debate between the Tribunal member and the applicant recorded on page 8 of the transcript of the Tribunal hearing similarly raised matters that called for separate consideration under s.36(2)(aa) of the Act.
  19. I do not agree that no “freestanding” issue was raised. It was. It called for consideration. Whether the test espoused in Htun, Dranichnikov, NABE or Plaintiff M61 was applied, in my view the claim for complementary protection was in fact raised by the applicant.
  20. The more difficult issue is whether the claim was in fact considered, albeit obliquely. In my view the complementary protection claim was not addressed. Instead, it was generically rolled into the Tribunal’s consideration of Convention-related issues. I do not agree that the complementary protection claims that ought to have attracted separate consideration were somehow subsumed in the findings of fact made in respect of the claims that called for consideration under a different section, that is to say under s.36(2)(a) of the Act.
  21. Mr Rebikoff submitted that the Tribunal’s reasons between paragraphs 61 and 68 revealed its treatment of the existence of real chance of harm to the applicant now or in the reasonably foreseeable future for reasons the applicant claimed. Mr Rebikoff submitted that the Tribunal dismissed the applicant’s claim about fear of harm by reason of the fact that the Tribunal was not satisfied there was a “real chance” such harm would occur now or in the reasonably foreseeable future. Mr Rebikoff submitted that in many respects the Tribunal’s disposition of the applicant’s “real chance of harm” arguments were predicated on findings of fact that the Tribunal made. Those findings included the applicant’s assertions that he would be harmed –
    1. by militants on account of his past association with ANP,
      an assertion the Tribunal rejected;
    2. by militants on account of his persuasion of his cousin to surrender to the army, an assertion the Tribunal rejected;
    1. by his own family, an assertion the Tribunal dismissed;
    1. by the Pakistan Army as a result of his having been involved in protests against the army, an assertion the Tribunal dismissed; and
    2. on account of the Pakistan Army working with the Taliban,
      an assertion the Tribunal dismissed.
  22. Mr Rebikoff submitted those matters showed that the Tribunal was not satisfied there was a “real chance” such harm would occur now or in the reasonably foreseeable future. He argued that this was not a case where the Tribunal conflated the Convention test with the complementary protection test. Mr Rebikoff, in reliance upon the decision of Wigney J in SZSXE v Minister for Immigration and Border Protection[30] submitted that the question was whether the Tribunal applied the complementary protection test to the facts as found.
  23. The point advocated by Mr Rebikoff, most persuasively and helpfully, did not overcome the proposition advanced by Mr Albert to the effect that the matters canvassed between paragraphs 61 to 69 of the Tribunal’s reasons were findings linked to a Convention nexus of harm. Conversely, the arbitrary killing of a person was a claim under complementary protection. It was erroneous for the Tribunal to consider the killing of the applicant’s cousin under the rubric of the Convention. The Tribunal should have dealt with that issue as a complementary protection claim. Having erroneously considered the issue under factors relevant to s.36(2)(a) and not to factors relevant to s.36(2)(aa) of the Act, the Tribunal fell into jurisdictional error by sweeping all claims up by reference in paragraph 70 to the much lamentable expression “[f]or the reasons set out above”.
  24. Recognising as I do that the Tribunal’s reasons are not to be scrutinised minutely with an eye keen to the detection of jurisdictional error,[31] nevertheless an aggrieved applicant is entitled to know precisely why he lost his case. In his signature treatise on point the
    Honourable Justice Mark Weinberg addressed the sufficiency of reasons in his article ‘Adequate, Sufficient and Excessive Reasons’.[32]
  25. To my mind, a reader of paragraph 70 of the Tribunal’s reasons was none the wiser in knowing what facts underpinned the Tribunal’s finding that the applicant had failed in his complementary protection claim. That situation should not be permitted to stand. Even if some repetition in the Tribunal’s reasons was involved, the Tribunal should have identified as separate matters those findings that supported the conclusions it reached in respect of the complementary protection claim. In my view it was a loose and unsatisfactory method of disposing of the applicant’s very important claim in respect of complementary protection for the Tribunal to trace 69 separate paragraphs of reasons that preceded paragraph 70 and for the Tribunal to then say in paragraph 70 that “[f]or the reasons set out above” the applicant’s complementary protection claim failed. What specific reasons? Those specific reasons should have been specifically identified. The Tribunal should not have glossed over the point in the way it did.
  26. In making that observation I realise that the Tribunal works under exquisitely oppressive time constraints in dealing with a huge number of cases each year, month, week and day. But it is not too much to expect that the path of reasoning leading to a particular result is recorded in a manner that enables the losing party to know why he or she lost.
  27. In my view, on ground 1 the Tribunal fell into jurisdictional error.
    I make orders for the issue of constitutional writs quashing the decision of the Tribunal.

The second ground of review

  1. Strictly speaking, my conclusions about the first ground of review rendered unnecessary any address of the second ground of review. However, the parties devoted such a significant amount of preparation and hearing time to the second ground of review that it is appropriate for me to express some views about their respective positions.
  2. In essence, the applicant complained that the Tribunal failed to give him an opportunity to adduce evidence and present argument as to whether the applicant lacked any role or standing in his district which would have caused him or enabled him to organise a protest concerning the Pakistan Army dumping bodies in his home village within
    24 hours.
  3. The applicant alleged that he left his village the day bodies were dumped and in response, the applicant organised a protest against the Pakistan Army. The applicant alleged that in response to that protest, the army came to his house, injured his wife causing her to miscarry and a few months later, four of his friends were killed. The Tribunal said in its reasons that it did not accept that the applicant had any role or standing in his district which would have caused or enabled him to have organised such a protest within 24 hours. The applicant argued that such a finding was an error because he had no notice that the finding would be made. The applicant said such a failure offended s.425 of the Act.
  4. The applicant was invited to appear to give evidence, which he did,
    as was common ground.
  5. The applicant contended that the decision of the High Court of Australia in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs[33] (“SZBEL”) was on point. Mr Albert submitted that the critical issue was whether the Tribunal gave the applicant notice of the issue that the applicant lacked a role or standing in his district to have convened a protest within 24 hours. Mr Albert submitted that the Tribunal should have put the applicant on notice by, essentially, telling the applicant that the Tribunal regarded the applicant’s lack of standing so as to be able to convene a protest within 24 hours to have been an issue to the Tribunal such that the Tribunal should have, but failed to, invite the applicant to say what he chose to say in response. According to Mr Albert, no such identification of issue was raised by the Tribunal, no such invitation to comment was offered and then, in the face of those two matters, the Tribunal made the finding it did about the applicant’s lack of standing in the district to be able to convene a protest within such a short time.
  6. The applicant also relied on the passages in SZBEL to the effect that if the Tribunal took no step to identify some issue other than those the delegate considered dispositive and did not tell the applicant what the issue is, the applicant was entitled to assume that the issues that the delegate considered dispositive were “the issues arising in relation to the decision under review”.[34]
  7. To make good his analysis on this issue, Mr Albert commenced with two parts of the delegate’s reasons. The first part was the segment of the delegate’s reasons entitled “8. Claims for protection”. There
    the delegate set out in unnumbered bullet points 25 separate assertions advanced by the applicant. In the ninth bullet point the delegate specifically recorded the applicant’s claim that in December 2010 the army dumped more bodies of people from the area prompting the applicant to protest with certain other persons. In the bullet point that followed, the delegate moved straight on chronologically, stating that the day after the protest four of the applicant’s friends were arrested. Mr Albert submitted there was an absence of reference on those two bullet points to the applicant’s standing or role in the community or capacity to organise the protest.
  8. The second part of the delegate’s reasons containing any reference to the protest was Section 4 in Part B under the heading “Assessment of Protection Obligations under the Refugees Convention”. Under the subheading “Claims” the delegate recorded –
  9. Mr Albert contended that the passage above said nothing about the applicant’s capacity to organise the protest or to contribute to the number of people who protested. Mr Albert submitted that the subject of the applicant’s standing to organise a protest was not an issue for the delegate and the applicant therefore was not on notice that he needed to address it. So, in the face of that, when the applicant read the passage in paragraph 49 of the Tribunal’s reasons that the Tribunal did not accept that the applicant had any role or standing in his district which would have caused him or enabled him to organise such a protest within 24 hours, Mr Albert submitted that the applicant was entitled to be concerned that the applicant had not been heard on the point, especially as that reason was part of the reasoning for the Tribunal’s rejection of the applicant’s claim.
  10. Before the Tribunal, the subject of the protest was addressed between pages 32 and 34 of its reasons but at no stage was the applicant’s role or standing raised, especially in the context that he could not have organised the protest.
  11. The Minister rejected the submission that s.425 of the Act had been in any way contravened. Very helpfully, Mr Rebikoff provided a detailed examination of the way s.425 of the Act should operate having regard to the observations made by the High Court of Australia in SZBEL. They may be stated in the following manner -
    1. first, the Tribunal’s task is to review the decision of the delegate so the point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons for that decision. That much emerged from the plurality in SZBEL at [35];
    2. second, only matters identified by the delegate as “determinative” will attract the operation of s.425 of the Act and not every conclusion adverse to the applicant will constitute an issue
      “arising in relation to the decision under review”;[36]
    1. third, s.425 of the Act does not require the Tribunal to give an applicant a running commentary on what it thinks about the evidence already given or to expose the Tribunal’s mental processes or provisional views for comment, or to advise of conclusions that are an obvious and natural evaluation of the material before the Tribunal;[37] and
    1. fourth, s.425 of the Act is directed to the invitation to appear before the Tribunal rather than the hearing itself.[38]
  12. Illuminating as that analysis may be, the point of importance in this litigation was the final sentence of paragraph 49 of the Tribunal’s reasons.
  13. In paragraph 9 of his supplementary submissions dated
    15 February 2016, Mr Rebikoff submitted that no issue arose
    in relation to the decision under review about whether the applicant was an organiser of the protest or merely a participant in it. Accordingly, there was no obligation on the part of the Tribunal to put the applicant on notice that his evidence about his being an organiser of the protest may not be accepted, so the Minister contended.
  14. Mr Rebikoff submitted that the applicant’s status as an organiser of the protest arose for the first time in the evidence the applicant gave to the Tribunal, especially between pages 32 to 35 of the transcript of the proceeding before the Tribunal. A close examination of the precise exchange between the applicant and the Tribunal member on those pages revealed that the applicant told the Tribunal that –
    1. he declined to protest;
    2. after the death of his cousin “we” (he did not say who was included in the plural pronoun) made a “Jirga” and “Jirga” meant a big gathering and meeting;[39] and
    1. the people who had been dumped were people he and others surrendered and “[t]hat’s why we wanted to protest against that (sic) what is happening”.[40]
  15. It was the Tribunal member who introduced the notion of the applicant wanting to organise the protest. The relevant question and answer were in the following terms –
INTERPRETER : Could you please clarify that?
INTERPRETER: We wanted the protest to continue ...[41]
  1. In that exchange, it was readily apparent that the applicant and the Tribunal member were at cross-purposes. The Tribunal member somehow fastened upon the notion that the applicant was the protest organiser, something he had not previously said or admitted.
    The member then put a proposition to the applicant that was falsely embedded with the premise that the applicant wanted to organise a protest. Understandably, the applicant, through the interpreter, sought clarification of that proposition as evidence of the fact of the applicant having organised the protest had not been previously given by the applicant. When purporting to clarify the question, the
    Tribunal member again asked the question and again embedded in the question a false premise, this time that the applicant had said he and his friends organised a protest against the army. The applicant had said no such thing. It was quite improper of the Tribunal member to express questions in that manner. In a court of law such a question was demonstrably objectionable and one destined to have been ruled inadmissible. Even allowing for the fact that the proceeding before the Tribunal is inquisitorial, to my way of thinking it was wrong for the Tribunal member when dealing with an applicant through an interpreter to ask questions the foundations of which were factually incorrect.
  2. All the more concerning was the fact that the Tribunal used the question and answer sequence I have canvassed immediately above in making a finding of fact that was one of the findings of fact leading to the rejection of the applicant’s review of the delegate’s decision.
  3. In the last sentence of paragraph 49 of its reasons the Tribunal made a factual finding that was not supported by the evidence and was one in respect of which no prior notice been given to the applicant. There is a great deal of merit in the applicant’s complaint in the second ground, called by all as “ground 3”.
  4. In my view ground 3 is also made out.
  5. I make orders quashing the decision of the Tribunal made
    30 June 2014. I direct that this matter be remitted to the Tribunal for rehearing before a differently constituted Tribunal. The Minister must pay the applicant’s costs.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Judge Wilson

Date: 20 October 2016

[1] Court Book filed 16 December 2014 at pp.61-81.
[2] Amended Application filed 19 November 2014.
[3] Notice of Address for Service filed 8 August 2014.
[4] Court Book filed 16 December 2014 at pp.2-31.
[5] Court Book filed 16 December 2014 at pp.33-39.
[6] Court Book filed 16 December 2014 at pp.83-88.
[7] Court Book filed 16 December 2014 at pp.93-125.
[8] Court Book filed 16 December 2014 at pp.126-132.
[9] Court Book filed 16 December 2014 at p.131.
[10] Court Book filed 16 December 2014 at pp.144-158.
[11] Order of his Honour Judge Wilson dated 18 December 2015.
[12] Supplementary Submissions filed by the first respondent on 15 February 2016; Submissions in Reply filed by the applicant on 1 March 2016.
[13] Affidavit of Sanmati Verma filed 17 December 2015 at annexure “SV-1”.
[14] Court Book filed 16 December 2014 at p.158.
[15] Transcript of Proceedings, 17 December 2015 at p.13.
[16] (2003) 77 ALJR 1088.
[17] [2004] FCAFC 263; (2004) 144 FCR 1.
[18] Court Book filed 16 December 2014 at p.9.
[19] Court Book filed 16 December 2014 at p.10.
[20] Transcript of Proceedings, 17 December 2015 at p.24.
[21] Court Book filed 16 December 2014 at p.95.
[22] Court Book filed 16 December 2014 at p.113.
[23] Court Book filed 16 December 2014 at p.124.
[24] Affidavit of Karyn Anderson filed 16 December 2015, annexure “KA-1” at p.8.
[25] [2013] FCA 774.
[26] [2013] FCA 774 at [26].
[27] (2001) 194 ALR 244 at [42].
[28] [2010] HCA 41; (2010) 243 CLR 319 at [90].
[29] Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71; (2003) 216 CLR 473.
[30] [2014] FCA 867.
[31] Collector of Customs v Pozzolanic Enterprises Pty Ltd [1993] FCA 456; (1993) 43 FCR 280.
[32] (2014) 5 Victorian Judicial Scholarship, [1] – [36] and [18].
[33] [2006] HCA 63; (2006) 228 CLR 152.
[34] [2006] HCA 63; (2006) 228 CLR 152 at [35].
[35] Court Book filed 16 December 2014 at p.75.
[36] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [35].
[37] See SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 at [48] and F Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 369 per Lord Diplock.
[38] Minister for Immigration and Border Protection v SZTJF [2015] FCA 1052.
[39] Affidavit of Karyn Anderson filed 16 December 2015, annexure “KA-1” at p.33.
[40] Affidavit of Karyn Anderson filed 16 December 2015, annexure “KA-1” at p.34.
[41] Affidavit of Karyn Anderson filed 16 December 2015, annexure “KA-1” at pp.34-35.

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