FEDERAL COURT OF AUSTRALIA

SZTQP v Minister for Immigration and Border Protection [2015] FCAFC 121

THE COURT ORDERS THAT:

1.    The name of the second respondent be amended to “Administrative Appeals Tribunal”.

2.    The appellants be given leave to rely upon the additional ground of appeal set out in the Proposed Amended Notice of Appeal filed 19 August 2015.

3.    The appeal be allowed.

4.    The orders made by the Federal Circuit Court of Australia on 27 February 2015 be set aside.

5.    The decision of the second respondent made on 11 November 2013 be quashed.

6.    The second respondent reconsider the entirety of the application for review dated 6 July 2012 according to law.

7.    There be no order as to the costs of the proceeding before the primary judge.

8.    The first respondent pay 50% of the first appellant’s costs of and incidental to the appeal, as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THE COURT

Introduction

1    This appeal is brought from orders made by the Federal Circuit Court of Australia (the FCCA) on 27 February 2015 dismissing, with costs, the application made to that Court on 10 December 2013 as amended on 12 September 2014.

2    The second and third appellants, the wife and the older child of the first appellant, did not and do not make separate claims for protection. We shall therefore refer to the first appellant as the appellant.

3    The application to the FCCA was for judicial review of a decision of the then Refugee Review Tribunal made on 11 November 2013 which affirmed the decision made by a delegate of the Minister not to grant to the appellant a Protection (Class XA) visa.

4    The name of the Refugee Review Tribunal as the second respondent should be amended to read “Administrative Appeals Tribunal” (the Tribunal).

5    The appellant was legally represented before the Tribunal, before the FCCA and before this Court.

Grounds of appeal

6    The grounds in the amended notice of appeal to this Court dated 19 August 2015, as sought to be amended in the course of the hearing of the appeal, are in the following terms:

1.    The Court Below erred in holding that the second respondent (the Tribunal) made no jurisdictional error in failing to specifically consider the claims that it did accept against the criteria in s. 36(2)(aa) of the Migration Act.

2.    The Court Below erred in holding that the Tribunal had not fallen into error in failing to differentiate the criteria which are relevant to s 36(2)(a) with those relevant to s. 36(2)(aa) of the Migration Act.

3.    The Court Below erred in failing to find the Tribunal had failed to consider and determine a claim or integer of a claim.

Particulars

(a)    The claim that the appellant had been the subject of threatening telephone calls.

7    The appellant required leave to amend his appeal so as to add ground 3. The application for leave was opposed by Mr Reilly of counsel, who appeared for the Minister. We have decided to grant leave to amend. The reasons for that grant of leave are as follows:

(a)    the factual basis of the issue presented by proposed ground  3 was raised below in ground 2(2) of the amended application before the primary judge;

(b)    the Minister pointed to no prejudice if leave were granted. Mr Reilly indicated that he was in a position to deal with the amendment were leave to be granted;

(c)    it was not submitted that the proposed ground lacked prospects; and

(d)    it was unlikely that the new ground would interfere with the efficient and timely conduct of the appeal.

Factual background

8    The factual background as set out in the judgment under appeal is as follows:

1. The Applicant is a citizen of Rwanda.

2. He was born on 23 December 1977. He is 37 years old.

3. The Applicant’s wife… is a 34 year old citizen of Rwanda.

4. The Applicant and his wife have 2 sons, one who was born in Rwanda in 2007 and the other who was born in Australia in 2013.

5. On 1 February 2011, [the second applicant] first arrived in Australia on a subclass 576 student visa.

6. On 31 August 2011 the Applicant and their first son arrived in Australia on visas to join [the second applicant].

7. On 29 December 2011, the Applicant lodged a subclass 866 protection visa, including for his wife and child.

8. The Applicant claimed that he was a child soldier in Rwanda during the genocide and eventually became a body guard or escort to [the] General. The General took him under his wing and help him with his education and financially.

9. After a period of unrest there was a disagreement between [the] General and the current President of Rwanda. In 2010 [the] General fled to South Africa and was since granted asylum there.

10. The Applicant fears that if he is returned to Rwanda he will be persecuted due to his association with [the] General.

11. On the 29 June 2011, the Department refused the applicant’s protection visa application.

12. On 6 July 2012, the Applicant lodged an application for review with the Refugee Review Tribunal (‘The Tribunal’).

13. On 11 November 2013, the Tribunal made a decision affirming the delegate’s decision.

…

9    So far as presently relevant, as to which see [20] below of our reasons, the Tribunal accepted the following claims.

10    The Tribunal accepted, at [88] and [107], that the appellant was detained, interrogated and tortured in March 2010 and that he had to report to the police station every Friday for three weeks after he was released. The Tribunal also accepted that the Rwandan authorities were aware of the appellant’s relationship with the General. But the Tribunal found that the relationship with the General was clearly not a close one and the Tribunal did not accept that the Rwandan authorities had any interest in the appellant after he ceased reporting to the police.

11    Even if the appellant received telephone calls from unknown numbers, which the Tribunal did not decide, the Tribunal found that the appellant was able to deal with this by changing his telephone number and ceasing to answer telephone calls from unknown numbers. The Tribunal did not accept that these telephone calls could be considered to constitute persecution involving “serious harm” within s 91R(1)(b) of the Migration Act 1958 (Cth) (the Act). In view of their importance in the appeal, particularly in relation to ground 3, it is desirable to set out [99] and [107] of the Tribunal’s reasons for decision:

99.    Even if, as [the appellant] claims, he was receiving telephone calls from unknown numbers almost every day saying that they knew the plan he had with [the General] and his Rwanda National Congress (RNC) and that if he did not stop he would disappear from the earth, he was by his own account able to stop this by changing his telephone number and ceasing to answer telephone calls from unknown numbers. I do not accept in all the circumstances that these telephone calls can be considered to constitute persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Migration Act 1958.

…

107.    For the reasons given above I do not accept that [the appellant] and his wife are telling the truth about the continuing interest of the Rwandan authorities in [the appellant] as a result of his relationship with [the] General. As I have said, I accept that [the appellant] was detained in March 2010 and that he had to report to the police station every Friday for three weeks after he was released and I also accept that the Rwandan authorities were aware of his relationship with the General. For the reasons given above, however, I consider that his relationship with the General is clearly not a close one and I do not accept that the Rwandan authorities had any interest in [the appellant] after he ceased reporting to the police. As I have said, even if he received telephone calls from unknown numbers I accept that he was able to deal with this by changing his telephone number and ceasing to answer telephone calls from unknown numbers and I do not accept in all the circumstances that these telephone calls can be considered to constitute persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Migration Act.

(Emphasis added).

12    As to the appellant’s bank accounts being frozen, the Tribunal accepted at [108] that his bank accounts were frozen but not that he was told that this was because of his relationship with the General, or because he was suspected of providing financial support to the General and his exiled partners or because he might have worked for the General.

13    As to the stone throwing, the Tribunal summarised its conclusions at [108], stating that it did not accept that the Rwandan Government was responsible for seven stones being thrown at the appellant’s home later in 2010.

14    In relation to the complementary protection claims, so far as presently relevant, the Tribunal said in the heading above [111], and at [111] and [113]:

Are there are (sic) substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Rwanda, there is a real risk that he will suffer significant harm?

111. In their submission dated 6 June 2013 [the appellant’s] representatives submitted in the alternative that the complementary protection provisions were ‘surely engaged’. For the reasons given above, however, while I accept that the Rwandan authorities are aware of his relationship with [the] General, I do not consider that this relationship is a particularly close one. I do not accept that, as [the appellant] and his representatives have claimed, the Rwandan authorities have shown an interest in pursuing him as a result of this relationship after he was detained in March 2010. I do not accept that he is wanted in Rwanda nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Rwanda, there is a real risk that he will suffer significant harm as a result of his relationship with [the] General or his real or imputed political opinion opposed to the RPF.

…

113. I do not accept on the evidence before me that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Rwanda, there is a real risk that he will be arbitrarily deprived of his life, that the death penalty will be carried out on him, that he will be subjected to torture, that he will be subjected to cruel or inhuman treatment or punishment or that he will be subjected to degrading treatment or punishment as defined. Accordingly I do not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of [the appellant] being removed from Australia to Rwanda, there is a real risk that he will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

15    In Attachment A to its reasons, the Tribunal set out the relevant law, including the terms of s 36(2)(aa), summarised the decision in Minister for Immigration and Citizenship v SZQRB [2013] FCAFC 33; (2013) 210 FCR 505 and also summarised the definition of “significant harm” in s 36(2A). No complaint is made about the content of Attachment A.

The FCCA’s reasons for judgment summarised

16    It is convenient first to set out the grounds of the amended application below so far as now relevant. They were as follows:

GROUND ONE

The second respondent failed to apply the complementary protection criteria to the applicant’s claims. In particular, the second respondent failed to assess whether the treatment experienced by the applicant amounted to “significant harm” for the purposes of s. 36(2)(aa) of the Migration Act 1958 (Cth).

Particulars

1.    The second respondent accepted that the applicant’s bank accounts had been frozen, however, it did not accept that it was due to a Convention-based reason. The second respondent failed to determine whether that treatment was “significant harm”.

2.    The second respondent accepted that the applicant’s home had been stoned, and also accepted that the authorities failed to respond after the stoning incidents. However, it did not accept that those matters were due to a Convention-based reason. The second respondent failed to determine whether that treatment was “significant harm”.

3.    The second respondent accepted that the applicant had received threatening phone calls from unknown numbers almost every day, but did not consider those calls to be “serious harm” pursuant to s. 91R(1) of the Migration Act 1958 (Cth). The second respondent failed to determine whether that treatment was “significant harm”.

GROUND TWO

The second respondent asked itself the wrong question in applying the complementary protection criteria and thereby failed to distinguish the tests posed by s.36(2)(a) and s.36(2)(aa) of the Migration Act 1958 (Cth).

Particulars

1.    The second respondent rejected a number of the applicant’s claims on the basis of an absence of a Convention nexus. In its analysis of the complementary protection claim, it made the same factual findings, see par [111] of the decision record. It was not open to the second respondent to reject the complementary protection claim simply for the same reasons as the Convention claims.

2.    It was incumbent on the second respondent to identify and evaluate the incidents relevant to significant harm. The second respondent failed to do this in respect of the frozen bank accounts, stoning (including failure to respond), and threatening telephone calls experienced by the applicant. The reason for that harm is irrelevant to the s.36(2)(aa) inquiry.

17    The primary judge considered the presently relevant issues as follows.

18    As to ground 1 of the amended application below, the primary judge said, in summary:

35.    In all, the applicant’s claim to fear harm, if he were to return to Rwanda, was said by him to arise from his relationship with [the] General. His fear was that he would be killed or tortured. It may be accepted that this claim was, if not expressly made in relation to complementary protection, clearly arose from the circumstances presented, such that the Tribunal was obliged to consider it.

36.    However, I agree with the Minister that the applicant made no claim to fear harm on return, by way of his house being stoned, or that his bank accounts would remain frozen, or even, that he would receive threatening phone calls. The material before the Tribunal supports the Minister’s submissions that those instances were advanced by the applicant as instances of past events that were part of his claimed motivation to leave Rwanda.

…

38.    In short, the applicant’s claim in relation to both the Refugees Convention, and complementary protection, was that he would be killed, or tortured, on return because of his relationship with [the] General. I agree with the Minister that in these circumstances, once the Tribunal came to the finding that there was not a real risk that the applicant would suffer significant harm as a result of his relationship with [the] General ([111] at CB 270 to CB 271), that was sufficient to deal with the applicant’s claim to fear harm, in the context of complementary protection.

19    As to ground 2 of the amended application, the primary judge said, in summary:

55.    When the Tribunal came to consider the complementary protection criterion (at [111] – [113] at CB 270 to CB 271), it addressed the remaining core factual claim made by the applicant. Namely, his relationship with [the] General. Once the Tribunal found that the authorities did not have any ongoing interest, and therefore, interest in the foreseeable future, in the applicant, because of his relationship with [the] General, it was not necessary to separately consider each instance of past harm which he claimed had occurred because of this relationship.

56.    It is to be emphasised that the Tribunal had found, variously, that the freezing of the bank accounts had not occurred for reason of his relationship with [the] General, the telephone calls had ceased, that the Rwandan Government did not condone the stone throwing, and police did not fail to protect the applicant. These were all factual findings made absent to any connection with the Refugees Convention. In all, ground two is not made out.

The appellant’s submissions summarised

20    The appellant submitted that the Tribunal must consider the case in the light of the claims that it did accept and the Tribunal must consider the claims that it did accept cumulatively and in their context. Further, the appellant submitted, the Tribunal is not to limit its determination to the case articulated by an applicant if evidence and material which it accepts raise a case not articulated. The appellant submitted that the Tribunal rejected a causal connection between the claims that it accepted, after March 2010, and the appellant’s association with the General. However the claims that it did accept were:

    the appellant was interrogated and tortured in March 2010 because of his association with the General;

    thereafter his house was stoned;

    his bank accounts were frozen in May 2011 and the Tribunal implied at [94] that they remained frozen in July 2012; and

    the appellant may have been the victim of threatening and abusive phone calls.

21    Had the Tribunal considered those matters, and considered them in their totality, the appellant submitted, it may have reached the conclusion that somebody or some people in Rwanda did not like him. Had it considered the facts that it found in their totality it may have also found that other claims that he had made were to be believed. But even if the Tribunal did not believe other claims it might in the context of the situation in Rwanda have found that the requirements of s 36(2)(aa) were made out. The Tribunal, in focusing exclusively on whether there was a real risk of harm to the appellant as a result of his relationship with the General, foreclosed upon this consideration. In consequence, the appellant submitted, the primary judge erred in dismissing grounds 1 and 2 of the amended application filed in the FCCA.

22    In support of ground 3, it was submitted that the threatening telephone calls received by the appellant formed part of his claims, but this claim was not adequately dealt with by the Tribunal in [99] or [107] of its reasons for decision, or elsewhere. In particular, the Tribunal made no finding as to whether or not the threatening phone calls were in fact made and, if they were, what was their content and significance to his claims for protection.

The Minister’s submissions summarised

23    The Minister submitted that the Tribunal dealt with complementary protection at paragraphs [111]-[113]. On a fair reading, the Minister submitted, the Tribunal’s conclusions concerning complementary protection were evidently based on its previous findings concerning the appellant’s refugee claims. The Tribunal was entitled to so proceed.

24    In relation to ground 1 of the amended application below, the Minister submitted the specific complaint was that the Tribunal did not, when considering complementary protection, refer to its acceptance that the appellant’s bank account had been frozen, his house stoned and that threatening telephone calls may have been received by him. While the Tribunal accepted that the first two of those events had occurred, it did not accept that the appellant’s bank account was frozen for the reasons he claimed, that is, because of his relationship with the General or because he was suspected of providing financial support to or might have worked for the General: see the Tribunal’s reasons at [98] and [108]. The Tribunal found that the Rwandan Government was not responsible for the seven stones thrown at the appellant’s house in 2010, and the authorities had responded reasonably: Tribunal’s reasons at [92] and [108]. The Tribunal also found that even if the appellant had received threatening telephone calls as he claimed, they stopped when he changed his telephone number: Tribunal’s reasons at [99] and [107].

25    The Minister submitted that the primary judge accepted the Minister’s submission that the appellant’s claim to be entitled to complementary protection was because he would be tortured or killed as a result of his relationship with the General and that the appellant did not claim to fear future “significant harm”, as defined, from the repetition of the bank account freezing, stone throwing or telephone calls. The Minister adopted the reasons of the primary judge at [36]-[39].

26    The Minister submitted that the appellant’s submissions in relation to ground 1 of the amended notice of appeal did not engage with the reasons of the primary judge for rejecting the ground, but appeared to repeat the claim that failed before the primary judge, with the addition of the Tribunal’s acceptance that the appellant was interrogated and tortured in March 2010 because of his relationship with the General. The new claim, the Minister submitted, failed on a plain reading of the Tribunal’s decision. The Tribunal did not accept that the detention, interrogation and torture meant that the appellant’s fears of being persecuted if he returned to Rwanda were well-founded: reasons of the Tribunal at [90]. Ultimately, the Tribunal was not satisfied that the appellant’s relationship with the General was particularly close, or that the Rwandan authorities had any interest in the appellant after he ceased reporting to police a few weeks after he was released in March 2010: reasons of the Tribunal at [107] and [110].

27    The Minister submitted that a fair reading of the Tribunal’s decision showed that it could not be said to have failed to consider the significance of the detention, interrogation and torture when considering complementary protection. The Tribunal at [111] specifically stated that the Rwandan authorities had not shown an interest in pursuing the appellant after he was detained in March 2010 and ceased reporting to the police shortly thereafter.

28    The remaining complaints, the Minister submitted, failed for the reasons given by the primary judge. The Tribunal found that the appellant was not wanted in Rwanda and there was not a real risk that he will suffer “significant harm” as a result of his relationship with the General or his anti-RPF political opinion: Tribunal’s reasons at [111].

29    In the circumstances, the Minister submitted, it was not incumbent on the Tribunal to specifically address the past incidents of bank account freezing, stone throwing and telephone calls when considering complementary protection. The Tribunal was evidently aware of its previous findings concerning these matters, but was entitled to conclude that as the appellant’s relationship with the General was not particularly close and the Rwandan authorities had shown no interest in pursuing him since he was detained in March 2010, there was not a real risk that he would suffer “significant harm” because of his relationship with the General.

30    It followed, the Minister submitted, that the appellant’s claim for complementary protection, as it was put to the Tribunal, was addressed. There was no failure by the Tribunal to deal with a “substantial, clearly articulated argument relying on established facts” within the principles in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) at [68] and SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125; (2013) 138 ALD 26 at [37].

31    As to ground 2 of the amended notice of appeal, i.e. that the Tribunal asked itself the wrong question and failed to distinguish between the tests in s 36(2)(a) and s 36(2)(aa), the Minister submitted that the primary judge rejected this ground at [40]-[56]. The primary judge found that the Tribunal had not rejected past claims simply on the basis of there being no Convention nexus as the ground alleged. The Minister adopted the reasons of the primary judge. The Minister submitted the appellant’s submissions did not engage with the findings of the primary judge. The Minister submitted that ground 2 of the notice of appeal claimed that the primary judge erred in failing to differentiate the criteria relevant to s 36(2)(a) and s 36(2)(aa) but the ground was not explained in the appellant’s submissions. The Minister submitted the Tribunal plainly did differentiate between the two criteria in its reasons and set out a correct statement of the law in Attachment A to its reasons.

32    As to ground 3 of the amended notice of appeal, the Minister submitted that the Tribunal did make findings in relation to the telephone calls in the sense that it accepted that the calls may have occurred. The appellant never claimed that the telephone calls might recur in the future and therefore they formed no part of the basis for his fear of further harm. Rather, the Minister submitted, his feared future harm was that he could be killed or tortured, as opposed to receiving future threatening phone calls. The Minister submitted that the Tribunal expressly dealt with and rejected the appellant’s claims that he feared death and torture by the Rwandan authorities if he were returned to that country.

33    The Minister submitted that it was sufficient for the Tribunal to consider the possibility that the appellant’s claims of having received the threatening phone calls was true, without making a decisive finding one way or the other. He submitted that it was sufficient for the Tribunal to proceed on the basis that, even if the calls had been received, they stopped after the appellant changed his telephone number. The Minister supported the Tribunal’s reasoning on the basis that the Tribunal appeared to believe that, if the Rwandan authorities were really interested in the appellant, they would have approached him directly and harmed him, which did not occur after the appellant changed his telephone number. The Minister submitted that the Tribunal’s consideration of the threatening telephone calls was in no different category to the Tribunal’s findings concerning the appellant’s claims that his bank accounts were frozen and that his house was stoned. That is because, it was submitted, the Tribunal accepted that all those events had occurred but concluded that they did not give rise to a well-founded fear of harm because it found that after he ceased to report to the police station in late March or early April 2010, the Rwandan authorities lost interest in him.

Consideration

Grounds 1 and 2

34    The first two grounds in the amended notice of appeal should be dismissed.

35    As to ground 1, in our opinion no error on the part of the primary judge has been made out in rejecting the submission that the Tribunal failed specifically to consider the claims that it did accept against the criteria in s 36(2)(aa). While it is correct to say that [111] of the Tribunal’s reasons do not expressly refer to the interrogation and torture of the appellant in March 2010 because of his association with the General or to the appellant’s house being stoned or to his bank accounts being frozen or to the threatening phone calls, in our opinion all those matters were dealt with at length in the preceding paragraphs of the Tribunal’s reasons and it should not be doubted that the Tribunal had those matters in mind, in their totality, when considering whether there were substantial grounds for believing that, as a necessary and foreseeable consequence of the appellant being removed from Australia to Rwanda, there was a real risk that he will suffer significant harm, as defined. It is to be recalled, as the primary judge held, that each of those events or series of events was put as stemming from the appellant’s claimed relationship with the General.

36    Where, as here, there is a factual foundation common to both the s 36(2)(a) and s 36(2)(aa) claims and the Tribunal does not accept the factual foundation in its consideration of the s 36(2)(a) claim, jurisdictional error is not made out. Each case is dependent on its own facts but the conclusion might be otherwise if the Tribunal accepted the factual foundation in its consideration of s 36(2)(a) but held that that claim failed for absence of a Convention nexus. In that case it would be necessary for a fuller analysis by the Tribunal of the s 36(2)(aa) claim for complementary protection. The position is different, however, if the Tribunal fails to consider and determine a claim or an element thereof, such as where it misunderstands or mischaracterises the claim, a matter which is raised by ground 3.

37    As to ground 2 of the amended notice of appeal, in our opinion it adds nothing to ground 1. The Tribunal expressly considered the complementary protection criteria, separately from the s 36(2)(a) criteria. In doing so, in our opinion the Tribunal differentiated between those criteria. No error on the part of the primary judge in this respect has been made out.

Ground 3 - the threatening telephone calls

38    In order to understand ground 3, it is necessary to set out in some detail the relevant material relating to the appellant’s claim that he received threatening telephone calls while he was in Rwanda in which calls explicit reference was made to his relationship with the General.

39    In the statement which accompanied the appellant’s application for a protection visa, he claimed the following:

… I used to receive phone calls from unknown numbers and the person on the other end would say that he knew the plan I had with [the General] and his RNC party and if I did not stop I will disappear from this earth. I would receive these calls almost every day until I decided to change my number and stopped answering calls from any unknown number.

40    In his statement the appellant did not say precisely when he received these calls. In circumstances, however, where his statement generally dealt with relevant events chronologically, it is reasonable to assume that he was alleging that the calls were received by him in mid-2011 (noting that he left Rwanda on 30 August 2011 and arrived in Australia on 31 August 2011).

41    It is evident from the delegate’s decision record that this particular claim by the appellant was discussed at his interview with the delegate and, although there was some uncertainty, he said that the calls started before early May and went on for about a month:

… The interviewer asked how many threatening calls he received. He stated that he received many calls a day which began before his accounts were frozen. He stated that it spanned over a month or a number of weeks. He then stated that he was not sure. He stated that he recalls he had to change his mobile phone number as a consequence. The interviewer asked whether he was ever informed of the identity of the caller. He stated that he was not aware of the identity of the caller and no one identified themselves. He stated that they were about the General.

42    The delegate dismissed the claims concerning the telephone calls, along with the appellant’s claims concerning the stoning attacks, describing both claims as “speculative”. The delegate’s relevant finding was as follows:

… Whilst the applicant states that subsequent threating telephone calls and stone attacks are ongoing proof of the harassment and intimidation of the Government these claims are speculative. Given that I do not accept that the applicant was of any interest to the Government I do not accept as plausible that he was subject of harassment or intimidation. Consequently I do not accept that the applicant attempted to draw upon the resources of the police department or that his funds were frozen, or that he encountered or suspected that a Government agent by the name of General [X] was following him or that he escaped from his pursuer…

43    In support of his application for review dated 6 July 2012 to the Tribunal, the appellant swore a lengthy statutory declaration dated 5 June 2013. He reiterated his concern that, because of his association with the General, he would be persecuted by the Government of Rwanda and/or by its agents if he was forced to return to that country. In support of that claim, the appellant expanded upon many of the matters he had raised before the delegate, including his detention and torture in March 2010, the stoning incidents in November 2010, the freezing of his bank accounts and various other matters. It is to be noted that his statutory declaration made no express mention of the threatening phone calls. The appellant repeated, however, his claim that he feared returning to Rwanda because he believed that the Government knew of his close association with the General and that he would be killed.

44    In support of his review application, the appellant filed with the Tribunal lengthy written submissions dated 6 June 2013 which were prepared by his representatives. He also filed additional witness statements. The written submissions addressed many of the matters which the appellant said demonstrated his close association with the General and the harm he said he had experienced as a result. No express mention was made in the written submissions regarding the threatening telephone calls. The submissions concluded with a statement that there was a real chance that the Government of Rwanda would persecute the appellant if he were returned to that country. It was also submitted that, if no Refugee Convention ground was found to exist, then “the Complementary Protection provisions are surely engaged”.

45    The transcript of the Tribunal hearing was in evidence. It records no explicit discussion of the threatening telephone calls.

46    Significantly, however, it is evident that the Tribunal accepted that the threatening telephone calls were part of the appellant’s claims. On the hearing of the present appeal, the Minister did not submit otherwise.

47    Express reference is made to that subject in various paragraphs of the Tribunal’s decision record, including in the first paragraph which provided a broad overview of the appellant’s case. The Tribunal made reference to the appellant’s original statement and the appellant’s claims concerning the threatening telephone calls. It said at [21]:

In the statement accompanying his original application [the appellant] said that until he had changed his telephone number he used to receive telephone calls from unknown numbers almost every day saying that they knew the plan he had with [the General] and his Rwandan National Congress (RNC) and that if he did not stop he would disappear from the earth. He said that besides changing his telephone number he had stopped answering calls from any unknown number.

48    As noted above at [11], the Tribunal directly addressed the appellant’s claims regarding the threatening phone calls in [99] and [107] of its reasons for decision. These paragraphs are pivotal to ground 3 of the amended notice of appeal. We will return to them shortly.

49    After dismissing the appellant’s Refugee Convention claims, the Tribunal turned its attention to his claims for complementary protection. It rejected those claims at [111]:

In their submission dated 6 June 2013 [the appellant’s] representatives submitted in the alternative that the complementary protection provisions were ‘surely engaged’. For the reasons given above, however, while I accept that the Rwandan authorities are aware of his relationship with [the] General, I do not consider that this relationship is a particularly close one. I do not accept that, as [the appellant] and his representatives have claimed, the Rwandan authorities have shown an interest in pursuing him as a result of this relationship after he was detained in March 2010. I do not accept that he is wanted in Rwanda nor that there are substantial grounds for believing that, as a necessary and foreseeable consequence of his being removed from Australia to Rwanda, there is a real risk that he will suffer significant harm as a result of his relationship with [the] General or his real or imputed political opinion opposed to the RPF.

Some relevant legal principles

50    The relevant legal principles relating to the question whether or not the Tribunal falls into jurisdictional error if it fails to deal with an element of an applicant’s claim, were conveniently summarised by the Full Court in NABE at [55] and [63] (per Black CJ, French and Selway JJ):

Failure to Deal with a Claim - Express and Implied Claims

[55]    Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on “ … a substantial, clearly articulated argument relying upon established facts” that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction - Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at [26]):

… the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.

…

[63]    It is plain enough, in the light of Dranichnikov, that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error. The same may be true if a claim is raised by the evidence, albeit not expressly by the applicant, and is misunderstood or misconstrued by the Tribunal. Every case must be considered according to its own circumstances. Error of fact, although amounting to misconstruction of an applicant's claim, may be of no consequence to the outcome…

51    Applying those principles here, we consider that the Tribunal fell into jurisdictional error for the following reasons. First, the appellant’s primary claim was that he feared serious harm and/or significant harm if he were returned to Rwanda because of his close relationship with the General and the harm which he had experienced while he was in Rwanda as a result of that association. An integer or element of that claim was that he had received threatening telephone calls around mid-2011 in which express reference was made to his association with the General. As noted at [40] above, those phone calls were made only a few months before he left Rwanda for Australia.

52    Secondly, in order to discharge its statutory review function, the Tribunal was required to consider the appellant’s claims and their integers. In the circumstances here, this obliged the Tribunal to determine whether or not it accepted that the threatening telephone calls had been made and, if it found that they had, to proceed to determine whether it accepted the appellant’s claims that he was threatened in those calls that he would “disappear from the earth” and that such threats were made because of his association with the General. If the Tribunal made findings of fact which were favourable to the appellant on these matters, they would be material in that they could indicate that, contrary to the Tribunal’s ultimate finding, the appellant remained a person of interest in mid-2011 because of his association with the General. If that fact was accepted, it indicated that the appellant was a person of interest well after he ceased reporting to the police the previous year, contrary to the Tribunal’s finding.

53    Thirdly, instead of making clear findings one way or the other on this element of the appellant’s claim (and it is plain that the Tribunal appreciated that this was an element of his claim because it purported to deal with it in its reasons for decision), the Tribunal was content to proceed on the basis that, even if the threatening calls had been made as alleged by the appellant, he was able to “deal” with them by changing his telephone number and ceasing to answer calls from unknown numbers. With respect to the Tribunal, that reasoning was inadequate to discharge the Tribunal’s review function in respect of this matter. That is because:

(a)    the fact that the calls stopped because of the appellant changing his telephone number and ceasing to take calls from unknown numbers did not mean that the threats were empty and would not be carried out if an opportunity arose; and

(b)    equally significantly, if the Tribunal assumed that the calls had been made as alleged by the appellant (and it is not clear that it did make that assumption even though it used the phrase “even if”), it was then incumbent on the Tribunal to turn its mind to the significance of the fact that the threats were said to be connected to the appellant’s association with the General and that, as at mid-2011, he remained a person of interest to the unknown caller(s).

54    Fourthly, there is the curious reference at the end of both [99] and [107] of the Tribunal’s reasons for decision to the Tribunal’s finding that it did not accept in all the circumstances that the telephone calls could be considered to constitute persecution involving “serious harm” as required by s 91R(1)(b) of the Act. Those statements strongly suggest that the Tribunal viewed the appellant’s claims in relation to the telephone calls as being that the telephone calls themselves constituted persecution involving “serious harm” for the purposes of that provision. This constitutes a fundamental misunderstanding or mischaracterisation of the claim which was being made, or at least an element of it. The appellant was not claiming that the making of the telephone calls themselves constituted serious harm. Rather, it was the threats that were made to him in those calls that were claimed to constitute the serious harm and also to evidence that the claimed serious harm was related to the appellant’s relationship with the General. The calls could have been and were avoided by the appellant changing his telephone number and ceasing to take calls from unknown numbers, but the threats remained. The appellant’s claim was that, if he returned to Rwanda, there was a risk that those threats would be carried out. The Tribunal never addressed or determined that element of his claims. This matter was relevant not only to his claim to fear persecution under the Refugee Convention but also to his claim that he was at risk of significant harm for the purposes of s 36(2)(aa) of the Act.

55    We reject the Minister’s submission that these statements at the end of [99] and [107] of the Tribunal’s reasons for decision do not reveal a misunderstanding of the appellant’s claims and that the statements can be put to one side because they were unnecessary to the Tribunal’s conclusion that there was no real chance that the appellant would suffer serious harm in the future. The fundamental difficulty with that submission is that it is predicated on the acceptance of the correctness of the Tribunal’s reasoning that, even if the phone calls occurred, they ceased when the appellant changed his telephone numbers and stopped taking calls from unknown numbers. As noted above, that reasoning is seriously deficient and fails to grapple with the appellant’s claims relating to and arising from the threatening phone calls.

56    The claims relating to the threatening phone calls were an element of the appellant’s claim to fear serious or significant harm if he were returned to Rwanda. The Tribunal appreciated that this was a claim which was expressly made and one which arose clearly on the materials before the Tribunal (see NABE at [61]-[62]). Because of the way the Tribunal dealt with that claim, it remains “unresolved”. As Flick J observed in not dissimilar circumstances in SZRRD v Minister for Immigration and Border Protection [2015] FCA 577 at [17]:

It matters not why the now Appellant’s claim remains unresolved; it may not have been resolved by reason of error, misunderstanding, or inadvertence on the part of the Tribunal. However it occurred, the jurisdictional error remains.

Conclusion and orders

57    The appeal should be allowed. The orders made below should be set aside and the Tribunal’s decision quashed. Appropriate orders should be made requiring the Tribunal to reconsider the appellant’s application for review dated 6 July 2012 according to law. To avoid misunderstanding, the entirety of the application for review is to be reconsidered by the Tribunal because, as we have stated at [54] above, the legal error which has been made out infects the way the Tribunal has dealt with the claims under both ss 36(2)(a) and 36(2)(aa).

58    Because the point on which the appellant has succeeded was not run below, there should be no order as to the costs of the proceedings before the primary judge. Also, because the point on which the appellant has succeeded was raised by amendment in the course of the hearing of the appeal, the Minister should pay only 50% of the appellant’s costs of and incidental to the appeal, as agreed or assessed. Orders will be made accordingly.

Associate:

Dated:    28 August 2015