FEDERAL COURT OF AUSTRALIA

SZTZH v Minister for Immigration and Border Protection [2017] FCA 55

ORDERS

THE COURT ORDERS THAT:

1.    The appeal is allowed.

2.    Order 2 of the orders of the Federal Circuit Court of Australia dated 13 May 2016 is set aside and, in lieu thereof, there be an order in the nature of certiorari to quash the decision of the second respondent made on 14 February 2014 in case number 1218904.

3.    A writ of mandamus be issued, directed to the second respondent, requiring that it hear and determine according to law the application of the appellant for review of the decision of a delegate of the first respondent made on 10 January 2012 to refuse to grant the appellant a Protection (class XA) visa.

4.    The first respondent pay the appellant’s costs of the appeal.

5.    Order 3 of the orders of the Federal Circuit Court of Australia dated 13 May 2016 is set aside and, in lieu thereof, there be an order that the costs of the appellant’s application for judicial review before the Federal Circuit of Australia in case number SYG 582 of 2014 be paid by the first respondent.

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

REASONS FOR JUDGMENT

BROMBERG J:

1    The appellant is a citizen of Nepal. He arrived in Australia on 8 May 2010. On 22 July 2011 he applied to the Department of Immigration for a Protection (Class XA) visa (“visa”). On 10 January 2012 that application was refused by a delegate (“delegate”) of the first respondent (“Minister”). On 17 May 2012 the Refugee Review Tribunal, now a division of the second respondent (“Tribunal”), affirmed the delegate’s decision (“first Tribunal decision”). The appellant applied to the Federal Magistrates Court for review of the first Tribunal decision, and by an order by consent dated 21 November 2012 that court quashed the first Tribunal decision and remitted the matter to the Tribunal for determination according to law. On 14 February 2014 a differently constituted Tribunal affirmed the decision of the delegate (“second Tribunal decision”). The appellant applied for judicial review of the second Tribunal decision in the Federal Circuit Court. On 13 May 2016 the primary judge dismissed that application by a judgment published as SZTZH v Minister for Immigration & Anor [2016] FCCA 1139. The subject of this appeal is the primary judge’s dismissal of that application.

2    The primary judge’s task was to determine whether the Tribunal’s decision was affected by jurisdictional error: s 474 of the Migration Act 1958 (Cth) (“Migration Act”) and Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476. My task is to determine whether the primary judge’s judgment is affected by appellable error: SLMB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 129 at [11] (Branson, Finn and Finkelstein JJ).

Background

3    The appellant claimed that his father was a supporter of the Nepalese monarchy and a community leader in their home village in Nepal. He claimed that in about 1998 members of the Maoist party, in trying to convince the appellant’s father to join them, harassed, intimidated and threatened the appellant and his family. On this basis the family relocated away from their home village. The appellant claimed that after leaving his village the Maoists burned down his family home.

4    The appellant claimed that he was abducted and physically assaulted by Maoists in about 2004 or 2005. The appellant’s family again relocated. The appellant claimed that he continued to be harassed by Maoists in his new home and after about five or six months relocated alone to Kathmandu, where he found work in a hotel.

5    The appellant said that after arriving in Kathmandu he joined and became an active member of a monarchist organisation which performed social work, eventually being made a coordinator for his zone. While living in Kathmandu he claimed that he was subjected to regular harassment from Maoists requesting ‘donations’. He also claimed that in about 2010 he was abducted by members of a Maoist youth organisation who attempted to extort a ‘donation’ of 1,000,000 NRs. He was told that he would be killed if he did not pay. He negotiated with his abductors to be released for one week in order to gather money to pay the extortion amount. Upon his release, the appellant decided to flee, and with the help of an agent, exited Nepal on a false passport.

6    By a letter dated 22 June 2011 which accompanied the appellant’s visa application, the appellant’s migration agent submitted that the appellant feared persecution from Maoists on the basis of his monarchist political opinion (“the political opinion claim”) and his membership of a particular social group comprising “foreign returned people” (“the PSG claim”). Also attached to that letter was documentary evidence in support of the appellant’s claimed membership of the monarchist organisation in Kathmandu, including a reference letter and membership card each purportedly issued by the organisation (“corroborating documents”).

The delegate’s decision and the first Tribunal decision

7    On 10 January 2012 the delegate refused to grant the appellant the visa on the basis that he was not satisfied that the appellant was owed protection obligations. The delegate made brief reference to the corroborating documents but neither expressly accepted nor expressly rejected their contents. Relevantly, the delegate dismissed the PSG claim on the basis that it lacked a nexus with a Convention reason. In so doing, the delegate noted country of origin information, including “Country Information Report No. 09/58: CIS Request No. NPL 9770; Discrimination”, Australia: Department of Foreign Affairs and Trade (DFAT), 5 August 2009, from which the delegate cited as follows:

I note DFAT advice which states incidents of extortion “mostly target[ing] individuals who are known to have sufficient funds to pay a ransom, rather than due to issues concerning discrimination …”

8    On 17 May 2012 the Tribunal made the first Tribunal decision to affirm the decision of the delegate. It is recorded in the first Tribunal decision that the appellant was represented in relation to that review by a migration agent, though he attended the hearing unrepresented. No new claims or submissions were put forward with the review application. The Tribunal acknowledged the existence of the corroborating documents but did not make any findings on them or otherwise rely on their existence or contents. The Tribunal considered and dismissed the PSG claim made to the delegate, but not repeated before the Tribunal. In dismissing the claim, the Tribunal referred to a number of sources of country of origin information which indicated, generally, that Maoists engage in the extortion of businesses and wealthy individuals.

9    The delegate’s decision and the first Tribunal decision are not otherwise material to the issues the subject of this appeal.

The second Tribunal decision

10    On 14 February 2014 the Tribunal made the second Tribunal decision to affirm the decision of the delegate. The Tribunal did not record whether the appellant was represented by a migration agent at the hearing before it. In summary, the Tribunal did not accept that the appellant was of specific ongoing interest to the Maoists, and that his claims to that effect – specifically those claims of harm post-2005 – were not plausible or credible. It did not accept the political opinion claim on this basis.

11    At [12] the Tribunal summarised the submission made by the appellant’s agent to the delegate as follows:

In a short submission from the applicant's advisors dated 22 June 2011 it is submitted that the applicant fears harm in his country because of his political opinion; he fears harm from the Maoists and their cadres as he is a supporter of the King and the Nepal Patriotic Organisation. It is submitted that the applicant was kidnapped and tortured in Nepal on several occasions by the Maoists. It is further submitted that the applicant fears harm as a member of a particular social group; if he returns to Nepal from Australia Maoists will ask him for more donations and returnees from foreign countries are more vulnerable and at risk in this regard and are targeted by Maoists and their cadres.

12    Relevantly, at [19] the Tribunal said that it had taken into account the independent country of origin information referred to by the delegate and the first Tribunal and went on to refer to country information which indicated that document fraud in Nepal is common.

13    At [21] the Tribunal summarised its understanding of the appellant’s claims, including, relevantly, its understanding of the PSG claim. It said as follows:

… The applicant's adviser, in submissions, claimed on behalf of the applicant, that if the applicant returns to Nepal Maoists will ask him for more donations. It is submitted that returnees from foreign countries are more vulnerable and at risk in this regard and are targeted by Maoists and their cadres for this reason. When asked about the latter claim by the present Tribunal the applicant responded, "I have not said that", that is that he did not make this claim. …

14    While the Tribunal accepted the limited claims of past persecution of the appellant and his father by Maoists prior to 2004 or 2005 (at [24]–[26]), it ultimately disbelieved the claims of subsequent targeted harassment and persecution (at [27]–[32]).

15    At [30] the Tribunal said this in relation to corroborating documents provided by the appellant:

The Tribunal has considered the documents produced by the applicant in support of his claims including the document described as a Work Evaluation Report from the Patriotic Committee, Central Office in Kathmandu dated 14 April 2008 and the document described as an Active Member Identity Card dated as issued in September 2005 by the Patriotic Committee, Nepal, Central Office, Kathmandu. Given the independent country information about the prevalence of document fraud in Nepal which the present Tribunal generally discussed with the applicant at the hearing and the concerns that the present Tribunal has with the applicant's credibility the Tribunal finds that the documents are not reliable evidence of the facts in them.

16    At [33] the Tribunal addressed the PSG claim as follows:

The Tribunal finds that the applicant does not fear harm in his country as a returnee from an overseas country for the reasons raised in submissions by the applicant's advisers, namely because Maoists will ask him for more donations and returnees from foreign countries are more vulnerable and at risk in this regard and are targeted by Maoists and their cadres. He specifically told the present Tribunal that he did not make this claim. The Tribunal finds that there is not a real chance or real risk that this applicant will face serious or significant harm in his country for this reason if he returns to Nepal.

17    The Tribunal concluded (at [36]) as follows:

In the Tribunal's view there is no plausible evidence before it that enables it to conclude that the applicant will suffer persecution from Maoists/those who support the Maoists/the YCL or anyone else in Nepal either now or in the reasonably foreseeable future because of his political opinion, his imputed political opinion, his membership of a particular social group, or for any other Convention reason, if he returns to his country. Having regard to the above the Tribunal is not satisfied, on the evidence presently before it, that the applicant has a well-founded fear of persecution in Nepal within the meaning of the Convention.

18    The Tribunal found also that the appellant did not satisfy complementary protection criteria under s 36(2)(aa) of the Migration Act (at [37]), before concluding (at [40]) that the appellant did not satisfy “the criterion in s.36(2) for a protection visa”, and ultimately affirming (at [41]) the decision not to grant the appellant the visa.

The primary judge’s judgment

19    Before the primary judge, the appellant was represented by counsel. Two grounds of review were pressed: first that the Tribunal was irrational in its finding that the corroborating documents were not reliable (“corroborating documents ground”), and second, that the Tribunal had failed to consider a claim expressly advanced by the appellant, that is the PSG claim (“PSG ground”).

20    In oral submissions before the primary judge, the appellant’s counsel also pursued a ground put in the application but later expressly abandoned: that the Tribunal had not addressed a claim based in an alternative unarticulated characterisation of a particular social group, said to comprise a composite of returnees and those with monarchist political opinions (“alternative PSG ground”). The primary judge considered the alternative PSG ground not pressed, and in any event that it was subsumed by and “a diversion from” the second ground based in the PSG claim. There was before me no challenge to his Honour’s approach in this regard.

21    The primary judge dismissed the corroborating documents ground on three bases: one, that Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 198 ALR 59 did not stand for the proposition, as relied upon by the appellant, that an emphatic adverse credibility finding was required before corroborative evidence could be impugned on the basis of an applicant’s credibility (at [27]); two, that in any event, fairly read, the second Tribunal decision did disclose an emphatic finding of adverse credibility (at [30] and [38]); and three, that the Tribunal had an alternative rational basis for its finding that the corroborative documents were unreliable, namely independent country of origin information on the subject of document fraud in Nepal (at [41]).

22    The PSG ground was rejected on the basis that a fair reading of paragraph [33] of the reasons of the second Tribunal led to the conclusion that the Tribunal properly considered the PSG claim and made a finding on it (at [88]–[89]).

23    On the question of whether the appellant had pressed the PSG claim, the primary judge quoted the following extract from the transcript of the Tribunal hearing (at [47]):

[Tribunal]:    Okay. All right. Well, what I have to do now, Mr [applicant], is have a think about all the things you’ve told me. I have to make a decision and decide whether I accept what you’re saying’s true on the basis of all the information I have and I’ll do that over the next couple of weeks. So I can’t give you a decision today.

[Applicant]:    Okay.

[Tribunal]:    So, just to be clear, it’s just for now is your fears for the reasons you’ve said. There’s no other reason you fear to return to Nepal?

[Applicant]:    Yes. I fear them very much, the Maoists, and whenever I return, if I return whatever time, whenever, they will kill me.

[Tribunal]:    Somewhere in these papers I remember reading, I think, that you feared harm in your country, which you haven’t talked about today, because you’ve been in Australia. Is that right or did I get that wrong?

[Applicant]:    I didn’t understand.

[Tribunal]:    Well, I think somewhere in here, I think I’ve understood correctly, it said that - I thought there was a claim that you feared harm because you’d be perceived as maybe wealthy or something like that because you’ve been in Australia but you haven’t mentioned that claim or that fear today.

[Applicant]:    I don’t think I have said anything like that.

[Tribunal]:    Okay. I might’ve misunderstood it or it might’ve been part of a submission that wasn’t pressed. Is it the situation that your leg is - the treatment on your leg’s finished?

24    The primary judge appears to have come to the view that although the appellant did not press the PSG claim it was nevertheless dealt with by the Tribunal.

The present appeal

25    By his notice of appeal, the appellant advanced five grounds of appeal (errors in original):

1.    His Honour made error by treating the rejection of claims by the Second Respondent as equivalent to finding of fabrication sufficient to reject without any independent consideration of corroborative documents supporting the Appellant’s claims.

2.    His Honour erred by treating the Second Respondent’s Decision Record at [33] of CB 200 as if it were evidence of what occurred at the hearing (notwithstanding the tender of the actual transcript of hearing).

3.    His Honour erred by adopting a tortured and stained construction of [33] of the Decision Record.

4.    His Honour erred by finding that the transcript supported that the Appellant had been properly given the opportunity to address his claim to be more vulnerable to harm as a returnee.

5.    His Honour erred by finding that the Second Respondent had dealt with the Appellant’s claim on the grounds that he would be more vulnerable to harm as a returnee.

26    Before me, the appellant was self-represented and was unable to elaborate on these grounds.

27    Ground 1 relates to the primary judge’s approach to the corroborating documents ground. Each of the grounds 2–5 address the PSG ground.

Ground 1

28    Ground 1 asserts that the trial judge was in error to dismiss the corroborating documents ground. The nature of the complaint is difficult to pin down with specificity. The ground appears to me to be challenging the primary judge’s second basis for rejecting the corroborating documents ground which I have outlined at [21] above. The ground alleges the trial judge erroneously treated the Tribunal’s adverse credibility findings as “equivalent to [a] finding of fabrication”.

29    I can see no error of that kind in the primary judge’s approach. To my mind, there was sufficient basis for the primary judge to come to the conclusion here impugned. That basis was explained by the primary judge at [30] and then [37] in the following terms:

[30]    In my view, and in any event, such a finding, or findings do exist, so as to make the current circumstances analogous with what the Full Court said in SZNSP at [32]:

“But even if it is a precondition, a finding that the first respondent’s claims were not credible and that she had fabricated her claim is tantamount to a finding of lying. It is a finding that the party making the claims has made those claims up. To make up claims is to lie about the existence of those claims.”

…

[37]    Although the Tribunal did not express its findings in terms that the applicant “lied” or “fabricated” his claims, it is plainly clear it stated that the claims were not true. That is, they were not credible. In this regard, I note, with respect, that the Full Court in SZNSP rejected the contention that it was “necessary to find expressly that a party has lied before concluding that a piece of evidence which might corroborate the party’s account should be rejected” (at [30]). The Tribunal’s finding that the claims were not true can only be reasonably and fairly read as findings that the applicant had made up these claims. That is, that they were a fabrication (see SZNSP at [32]).

30    In any event, the primary judge (at [41]) found that the Tribunal had an alternative rational basis for dismissing the corroborating documents ground, that is, country of origin information indicating the prevalence of fraudulent documents in Nepal. Even if the primary judge erred in his approach accepting the Tribunal’s treatment of the corroborating documents through the lens of the appellant’s general credibility, there remained this alternative rational basis for the Tribunal’s rejection of the corroborating documents. Accordingly the primary judge was correct to reject the challenge to the Tribunal’s approach to the corroborating documents on the basis of rationality.

31    Ground 1 is not made out.

Grounds 2–5

Applicable Law

32    Part 7 of the Migration Act deals with the jurisdiction of the Tribunal in cases such as the appellant’s. Section 411 defines a Part 7-reviewable decision, relevantly, as a decision to refuse to grant a protection visa, subject to certain exceptions not presently relevant.

33    Section 414 of the Migration Act provides as follows:

414    Tribunal to review Part 7-reviewable decisions

(1)    Subject to subsection (2), if a valid application is made under section 412 for review of a Part 7-reviewable decision, the Tribunal must review the decision.

(2)    The Tribunal must not review, or continue to review, a decision in relation to which the Minister has issued a conclusive certificate under subsection 411(3).

34    It has been a longstanding approach of this Court to regard the failure to deal with a claim clearly articulated by a claimant as a constructive failure to exercise jurisdiction under s 414: see for example NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [63] (Black CJ, French and Selway JJ).

35    In Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 a Full Court of this Court (Kenny, Griffiths and Mortimer JJ) considered the nature of the Tribunal’s duty to consider the claims of a visa applicant. The Court summarised the duty at [32]–[34] (emphasis added):

[32]    The Tribunal’s task on review under s 414 of the Migration Act is to form, for itself and on the material before it, the requisite state of satisfaction under s 65 of the Migration Act in respect of the criterion (or criteria) for a visa in issue before it. Relevantly, and almost uniformly for the Tribunal (putting complementary protection to one side), the criterion is the one set out in s 36(2)(a) of the Migration Act, which picks up Art 1 of the Refugees Convention.

[33]    The occasion on which the application of this criterion is to be considered is the prospect that a person currently in Australia will be returned to her or his country of nationality, the risks if any she or he might then face, and the reasons she or he may face those risks. It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.

[34]    Critically to the determination of the issues raised in this appeal, lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in her or his country of nationality and, second, a correct understanding of how, in respect of each of the bases articulated, it is to be determined whether that fear is objectively well founded.

36    In that case, having accepted that the applicant was a former member of the MDC opposition political party in Zimbabwe, the Tribunal relied on outdated information to find that the visa applicant’s fears of politically-motivated violence were not well-founded, without reference to the more current information put to it by the applicant’s representatives which indicated increasing political violence in Zimbabwe. The question was whether the Tribunal had sufficiently engaged with the claim to discharge its duty under s 414. The Court found that the Tribunal’s reasons disclosed (at [3]) “neither consciousness nor consideration of these central aspects of the first respondent’s claim”. On that basis the Court found that Tribunal had committed jurisdictional error, having failed to discharge its statutory duty (at [62]–[63]).

37    In MZZKA v Minister for Immigration and Border Protection [2014] FCA 633 I considered the principles explained in MZYTS, including a requirement that the Tribunal consider claims raised by the material or evidence in a “real or active” way (at [22]), and the nature of the task for a court on review: that is, “not to assess the quality of the Tribunal’s reasons, but rather to consider what the Tribunal’s reasons, as they are, reveal about the Tribunal’s performance of its statutory task” (at [23]). I concluded (at [45]) in that case that “[t]he absence of findings in the Tribunal’s reasons about material questions of fact relevant to [the claim] leads to the inference that the Tribunal did not address that claim”.

Discussion

38    As earlier stated, grounds 2–5 address the PSG ground raised before the primary judge. Ground 5 takes up that challenge directly. It contends, in essence, that the primary judge was wrong to reject the contention that the Tribunal failed to consider the PSG claim. Grounds 2–4 seem to me to be laying the foundation for why the appellant says that error was made. I will treat grounds 2–4 as particulars of ground 5.

39    As the resolution of ground 5 depends on a proper understanding of [33] of the Tribunal’s reasons, it is convenient to again set out that paragraph:

The Tribunal finds that the applicant does not fear harm in his country as a returnee from an overseas country for the reasons raised in submissions by the applicant's advisers, namely because Maoists will ask him for more donations and returnees from foreign countries are more vulnerable and at risk in this regard and are targeted by Maoists and their cadres. He specifically told the present Tribunal that he did not make this claim. The Tribunal finds that there is not a real chance or real risk that this applicant will face serious or significant harm in his country for this reason if he returns to Nepal.

40    The primary judge accepted (at [52]) that the PSG claim was made. As the primary judge said at [53]–[54], the resolution of the challenge raised by the appellant turned upon resolving the tension between the penultimate and the ultimate sentences in [33] of the Tribunal’s reasons. The primary judge accepted (at [55]–[56]), as I do, that the penultimate sentence should be understood as recording the Tribunal’s understanding that the appellant was not pressing the PSG claim. The primary judge noted the oddity involved in the fact that the Tribunal, in the very next sentence, “made a finding addressing a claim which it had just stated was not made” (at [57]).

41    As I have explained, the tension which the primary judge correctly identified was resolved in favour of a conclusion that the PSG claim was considered not pressed but nevertheless dealt with by the Tribunal. However, with respect to the primary judge, much of the discussion engaged in by his Honour at [65]–[87], which led to that conclusion expressed at [88]–[89], did not address the tension which his Honour had identified. Instead, it seems to me that the analysis that should have ensued was distracted by an issue as to whether the conclusion made in the penultimate sentence was reasonably open for the Tribunal to have made based upon the exchange at the hearing recorded in the extract from the transcript which I have set out at [23] above. Whether the Tribunal would have been justified in coming to an understanding that the PSG claim was not pressed may be relevant to another issue, as I will shortly explain, but the answer to that question does nothing to resolve the tension between the final two sentences of [33] and the question as to whether the Tribunal considered the PSG claim.

42    To my mind, [33] of the Tribunal’s reasons raises a question as to whether the Tribunal dismissed the PSG claim because it was not pressed or, alternatively, because it had no merit. Before the claim could have been validly rejected on its merits, it would have been necessary for the Tribunal to have engaged with the claim in a “real or active” way and set out in its reasons the basis for that rejection. For instance, there was country of origin information before the Tribunal, which I have recorded at [7]–[8], which arguably supported the PSG claim. In contrast with the reasons given by the delegate, where that country of origin information was referred to and the merits of the PSG claim were addressed but ultimately rejected, the Tribunal’s reasons do not reveal that the Tribunal grappled with the PSG claim at all. The absence of any findings in the Tribunal’s reasons about material questions of fact relevant to the PSG claim leads to the inference that the Tribunal did not address that claim: MZZKA at [45].

43    Although not essential to that conclusion, I note also that, as the Minister accepted, the transcript of the hearing does not indicate that the merits of the PSG claim were addressed by the Tribunal at the hearing.

44    That all strongly points to the conclusion that the Tribunal rejected the PSG claim because it regarded it as having been abandoned and that, therefore, it was unnecessary for the Tribunal to deal with it. The ultimate sentence of [33] of the Tribunal’s reasons is not demonstrative of the Tribunal grappling with the merits of the claim. That sentence expresses an ultimate finding which it was not necessary for the Tribunal to have made. It reveals, perhaps, a misapprehension by the Tribunal that its dismissal of a claim which it regarded as not being pressed needed to be expressed through an ultimate finding negating the existence of a risk of harm to the appellant should he be returned to Nepal. That sentence does not reveal, and there is nothing else to demonstrate, that the PSG claim was actively addressed and dismissed on its merits.

45    The Minister sought to answer the contention that the Tribunal’s reasons failed to grapple with the merits of the PSG claim in two ways. First, the Minister contended that the PSG claim was linked to the political opinion claim and was dealt with by the Tribunal as part of that claim. Second, the Minister relied upon [36] of the Tribunal’s reasons.

46    I reject both those contentions. As to the first point, to succeed on that point the Minister needed to establish first that the PSG claim, as made by the appellant, had a connection with the political opinion claim and secondly, that that connection was recognised and applied by the Tribunal.

47    The PSG claim was made in submissions put by the appellant’s migration agent. The claim was in these terms:

Based on the documents and information provided to this office during our meetings, we submit that the applicant's claim falls under the following Convention grounds:

…

2.    Member of particular social group: We are instructed that he has fear from Maoists if he returns to Nepal as he will be asked for more donations. Foreign returned people are more vulnerable and in risk as they are targeted by the Maoists and their cadres.

48    The Minister contended that the PSG claim related to a particular social group comprising returnees who had in the past, on account of their political profile, been subject to extortion from Maoists. That is, a composite group of returnees with political profiles. The characterisation contended for is similar to that which formed the basis of the alternative PSG ground argued by the appellant in the court below. It is worth noting that the appellant’s formulation was put in the court below as an implied, cumulative claim in addition to the more straightforward, and expressly put, social group comprising ‘foreign returned people’.

49    In support of his submission, the Minister relied on the word “more” preceding the word “donations” as it appeared in the appellant’s expression of his claim and as repeated in the Tribunal’s reasons at [21] and [33]. The Minister also highlighted the use of the pronouns “he” and “his” as indicating that the group more closely resembled a person of the appellant’s attributes, especially his claimed history of political persecution. The essence of the submission was that those words indicated that the Tribunal considered a claim based in a social group incorporating more of the appellant’s personal characteristics and in this way that the PSG claim and the political opinion claim “must be linked”.

50    I cannot accept the submission. The particular social group which formed the basis of the appellant’s advisor’s submission to the delegate was plainly comprised of foreign returnees alone. The Minister could point to nothing more than the word “more” in the appellant’s advisor’s submission in support of his interpretation. I am prepared to accept that the word “more” indicates that the nature of the persecution feared in connection with the PSG claim may be of the same character as the claimed past persecution – that is, extortion at the hands of Maoists; however this does not import into the PSG claim any other element of the political opinion claim, including that members of the claimed social group must have experienced prior extortion at the hands of the Maoists. In any event, the Tribunal in its reasons made no connection of the type contended for by the Minister between the PSG claim and the political opinion claim and dealt with each claim separately, as a distinct claim. I therefore reject the Minister’s contention that the Tribunal’s evident engagement with the political opinion claim evidences an engagement with the merits of the PSG claim.

51    I turn then to the Minister’s reliance on [36] of the Tribunal’s reasons which I have extracted in full at [17] above. The Minister contended that read together, what is recorded at [33] and [36] indicated that the Tribunal had engaged with the PSG claim sufficiently to discharge its statutory duty. I do not accept that submission. The opening sentence of [36] upon which the Minister relied is an ultimate conclusion rejecting all of the claims made by the appellant. It does not evince any real or active consideration of the PSG claim including by providing a basis for the rejection of the country of origin information which was capable of supporting that claim. That paragraph does not explain why the PSG claim was rejected. The only part of the Tribunal’s reasons which does that is the penultimate sentence in [33].

52    For those reasons, I respectfully depart from the primary judge’s conclusion that the Tribunal did not fail to deal with the PSG claim. To my mind, the Tribunal dismissed the claim because, as it said in the penultimate sentence at [33], it regarded it as not pressed. The Tribunal did not otherwise consider the claim and determine it.

53    Both before the primary judge and before me, the Minister contended that the Tribunal did consider and therefore did deal with the PSG claim on its merits. In his written outline before me, the Minister conceded that the Tribunal had “a duty to consider the [PSG] claim”. No submission was made that it was unnecessary for the Tribunal to have dealt with the PSG claim because it had been abandoned. If such a submission had been made and accepted there may have been a basis for declining the relief sought by the appellant because an alternative basis for the Tribunal’s rejection of the PSG claim was available. In the absence of that submission being made, I need not form any concluded view about it. I would however say that, in my view, the exchange between the Tribunal and the appellant, set out in the extract from the transcript at [23] above, is a tenuous basis for concluding that the appellant had expressed an intent to abandon the PSG claim.

54    Ground 5 is made out: the primary judge erred in finding that the Tribunal had dealt with the PSG claim.

Conclusion

55    I have found the appellant to have succeeded on at least one of his grounds of appeal. Accordingly, I will make orders that the appeal be allowed and will remit the matter to the Tribunal for determination according to law. Both parties accepted that costs should follow the event and I will make orders to that effect. I am not aware of any reason why I should not also order the Minister to pay the appellant’s costs on the application before the primary judge given that I will allow the appeal. I will make an order to that effect. However, as I have not heard the Minister on that issue, I will reserve to the Minister leave to apply within 7 days of the making of that order for the order to be set aside.

Associate:    

Dated:    2 February 2017