FEDERAL COURT OF AUSTRALIA

BYH16 v Minister for Immigration and Border Protection [2019] FCA 357

ORDERS

THE COURT ORDERS THAT:

1.    The appeal be dismissed with costs.

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

REASONS FOR JUDGMENT

(Revised from the transcript)

LEE J:

1    In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) FCR 111 at [98], the Full Court (Kenny, Tracey and Griffiths JJ) described Pt 7AA of the Migration Act 1958 (Cth) (Act) as a scheme which could be described as truly remarkable. The legislative scheme in Pt 7AA is relied upon in this appeal as a basis upon which the Court should reconsider, or at least seek to distinguish, well-established propositions that arise in relation to the approach the Court has adopted when dealing with Pt 7 of the Act.

2    The appellant is appealing a judgment of the Federal Circuit Court on the basis that the primary judge failed to have regard to the tests or test which apply to the identification of unarticulated claims requiring consideration, or failed to have regard to that test or tests which the second respondent (Authority) ought to apply given its statutory framework.

3    There is only one ground of appeal which, as developed in the careful and comprehensive submissions made by the appellant, raises three issues: (a) first, whether the Authority is required to consider an unarticulated claim only if it fairly arises on the material before it, or whether it is also required to consider an unarticulated claim which, despite not arising squarely on the material before it, is “open on the facts”; (b) secondly, whether the Authority in the present case was required to consider an unarticulated claim that the appellant feared persecution “by reason of being a family member of an individual associated with, or perceived to be supportive of, the international community by virtue of his recognition as a refugee by an international organisation” (unarticulated claim); and (c) thirdly, if the Authority was required to consider the unarticulated claim, whether it in fact did so. It is convenient to structure these reasons by reference to these three issues, but prior to doing so, I should say something briefly about the background of the matter.

4    The appellant, an Afghan, applied for the grant of a protection visa as long ago as 2015, which was refused by a delegate of the first respondent (Minister). Given the introduction of Pt 7AA of the Act in April 2015 as part of the package of reforms designed to deal with what Parliament described as the “Asylum Legacy Caseload”, he was referred to the Authority. The Authority affirmed the decision not to grant a protection visa to the appellant and he thereafter sought judicial review. In July 2017, the Federal Circuit Court, by consent, quashed the decision of the Authority and remitted the appellant’s case back to the Authority for reconsideration. The appellant made five further submissions to the Authority in August and October 2017, each in the nature of country information, the details of which are not relevant for present purposes. In November 2017, the Authority affirmed the delegate’s decision. The way in which the Authority came to that conclusion is summarised by the primary judge at [12]-[23] of his Honour’s reasons and was not contended by either party to be inaccurate. The primary judge dealt with two grounds of appeal, only one of which is relevant to the current proceeding. Mr Tully, who appeared below, submitted before the primary judge that there was a claim or integer of the appellant’s claim that the Authority had failed to address. His Honour dealt with that argument at [25]-[29] of his reasons. For reasons that will become evident, it is unnecessary for those reasons to be set out in any detail.

5    I now turn to the three issues that I have identified above.

First issue: which unarticulated claims must be considered?

6    The core of the argument advanced on behalf of the appellant is that the distinctive statutory framework in which the Authority operates must inform how unarticulated claims are to be identified and addressed by it. The proposition for which Mr Tully contended is that a “broader test for assessing unarticulated claims applies in the [Authority] context relative to that of the [scheme provided for in Pt 7 of the Act] because of the relatively limited review contemplated by the statutory scheme” of Pt 7AA. Put another way, it is suggested that the Authority is required to have regard to an unarticulated claim if it is “open on the facts” before the Authority, and it is not the case that the unarticulated claim must arise “squarely on the material”. It is common ground that the primary judge approached his task on the basis that there was no relevant distinction in the way in which unarticulated claims are to be dealt with under the different statutory regimes.

7    In a sense, that is entirely unsurprising, as in AOJ18 v Minister for Home Affairs [2018] FCAFC 220, the Full Court (Griffiths, Gleeson and Colvin JJ) at [29] said as follows:

It was suggested that this was a case where the Authority should have considered a claim based upon whether there was a risk of harm from persons other than the Sri Lankan authorities from which the appellant would not be protected by the institutions required to maintain law and order. As to those instances where it is said that a claim that arose on the materials should have been considered even though it was not articulated as a claim by the applicant, the following passage in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J) was approved by the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70]:

Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.

8    AOJ18 was a decision concerned with an appeal from the Federal Circuit Court which dismissed a judicial review application relating to a decision of the Immigration Assessment Authority not to grant a protection visa. As can be seen from this extract, the principles which developed in the context of Tribunal review under Pt 7 were applied by the Full Court in the context of Authority review under Pt 7AA of the Act. It follows inevitably, it seems to me, that unless I was persuaded that AOJ18 was plainly wrong, I ought to follow it.

9    It is unnecessary for the purposes of this judgment to consider an argument, not made by the Minister, that it may be consistent with the text and purpose of Pt 7AA to construe the obligation of the Authority to consider unarticulated claims in a way which contracts rather than expands the relevant obligation as it has been developed by reference to a different statutory scheme. As is obvious from the structure and terms of Pt 7AA, Parliament has made a deliberate legislative choice to limit referred applicants’ rights to give (and the Authority’s coordinate duties to receive and consider) material in support of their claims by comparison to the applicants’ rights (and the Tribunal’s coordinate duties) under Pt 7. This, as well as Parliament’s use of the adjective “limited” to describe the Authority’s review function (see ss 473BA and 473FA), might be thought to have some contextual relevance to the way in which the Authority is to deal with claims which have not been specified in the particulars of the claim provided to the Authority. But as I have said, this issue need not detain us. It is tolerably clear that even uninstructed by authority I would reject the contention that there is some expansion of the obligation to consider unarticulated claims which arises by reason of the legislative landscape which governs Authority review, and which would require departure from well-known authorities established in the context of consideration of the requirements of Tribunal review.

10    All that needs to be said for present purposes, is that the primary judge was correct to ask whether the relevant unarticulated claim arose fairly on the material before the Authority, with the added comment that whatever the “adverb or adverbial phrases [describing] the apparentness of the unarticulated claim”, what matters, is that the unarticulated claim must “arise sufficiently from the material as to require a reasonably competent [decision-maker] in the circumstances to appreciate its existence”: NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]. Read fairly, this is precisely the way the primary judge approached the issue.

Second issue: was the relevant unarticulated claim required to be considered?

11    It is best to begin consideration of this issue by explaining the nature of the applicant’s claims that were articulated. Insofar as those claims related to his brothers (N and R), the way in which the claim was expressed is best seen from the submission made by the appellant’s solicitors on 1 June 2016 at CB143-147. In that submission, the point was made that the brother N had been found to be a refugee in “comparable circumstances” to that of the appellant and that R was found to be a refugee by the United Nations High Commissioner for Refugees (UNHCR) in April 2016 on the basis of a “threat [that] extends to the whole family, including [the appellant]”. A copy of his UNHCR card was provided. In a later “amended submission” made by the appellant’s solicitors on 4 June 2016, it was said that the appellant was at a heightened risk of kidnapping in Afghanistan by reason of “having a brother in a Western country”: CB160.

12    As noted above, the relevant unarticulated claim is said to be that the appellant fears harm because his brother R is an individual associated with, or perceived to be supportive of, the international community. Read fairly, the relevance of the claim that R had gained refugee status appears to have been that it tended to show that the appellant was also entitled to refugee status, not that R’s refugee status, in and of itself, gave rise to any well-founded fear of persecution in Afghanistan. The further claim, that the appellant feared harm on the basis of having a brother in a Western country, reads as having been raised quite separately. It cannot be said, given the lack of any explicit submission that someone who has been found to be a refugee by the UNHCR has an “association with the international community” in the sense of the DFAT country report, that these two separate claims somehow on their face, give rise to the unarticulated claim. To adopt the primary judge’s conclusion, the claim did not fairly arise on the material before the Authority but rather reflects the “ingenuity and creative activity of counsel”. It does not seem to me that there was error on behalf of the primary judge not to find jurisdictional error as was articulated in ground one before the primary judge.

13    Irrespective as to whether I were to accept the legal contention of the appellant (which I have rejected above), the Minister made detailed submissions dealing with the appellant’s claims as to how the unarticulated claim was open on the facts. It is appropriate to set out those submissions briefly.

14    An essential factual premise of the relevant unarticulated claim, is that R was an individual associated with what is described as the “international community”, and that this fact might have led to a conclusion that someone who had a brother so associated faced a particular risk of harm. The case of the appellant necessarily requires that the Authority, on the basis of the material before it, would have recognised the relevant unarticulated claim. This would require a finding that the association of R with the UNHCR (as somehow part of the “international community”), could rationally have led to an assessment of a claim of any well-founded fear of persecution in Afghanistan.

15    The expression “international community”, of which it is alleged that the UNHCR forms part, picks up on the Authority’s reasoning at [52] of the Authority’s decision and reasons. In that paragraph, reference was made by the Authority to the fact that DFAT assesses that people who are identified as having associations “with the government or the international community face a high risk of being targeted by [unidentified anti-government elements]”. The reference given for that proposition, in footnote 21, was to “DFAT Country Information Report, Afghanistan, 18 September 2017, CISEDB 50 AD5680, 5.22”. The Minister makes the point, in my view correctly, that the finding that R was recognised as a refugee by the UNHCR does not necessarily entail a finding that he had an association with the “international community” in the particular sense that would engage the DFAT assessment to which the Authority made reference (which was the material before the Authority). This depends on what “association” means in the DFAT assessment. The DFAT report was not adduced in evidence before the primary judge, although, obviously enough, it was before the Authority. The Minister submits it could have met any factual assertion with the tender of the report.

16    It is for these reasons that the Minister submits that even if I were to accept the test as whether the claim was “open on the facts”, the claim cannot be said to have been open. It is unnecessary to deal with this argument but if I were otherwise wrong as to the test to be applied, these submissions should be accepted.

17    It is also unnecessary to determine the third issue, but on the assumption that I am incorrect in relation to my conclusion that the relevant unarticulated claim was not required to be considered, I will deal with it.

Third issue: did the Authority in any event consider the relevant unarticulated claim?

18    It is convenient to set out [38]-[39] of the Authority’s reasons:

I acknowledge that the applicant's brother ([R]) was issued a UNHCR refugee card in Indonesia in April 2016; however, there is no information provided detailing on what basis he was issued this card. In light of the evidence discussed above, I am not satisfied that the applicant’s brother was granted refugee status by the UNHCR on the basis of a land dispute in Malistan District or because he travelled to Afghanistan and was threatened by a Hazara man named [J]. I reject the applicant’s representative’s assertion in the submission to the IAA that [R]’s testimony has been accepted by the UNHCR. I accept that the applicant’s other brother ([N]) was granted permanent protection in Australia in 2005. The applicant has raised no claims that he fears harm in Afghanistan on account of his brother’s profile in Afghanistan some 17 years ago. Further, there is no country information before me that indicates that the conflict that occurred in Malistan District at that time is ongoing. On the information before me, I am not satisfied the applicant faces a real chance of serious harm on account of either of his brothers previous activities or their profiles in Afghanistan.

I have accepted that the applicant and his family left Afghanistan in 2000 due to the proximity of the Taliban to his home area. I have also accepted that the applicant’s father was killed in 2005 while travelling on a bus between Pakistan and Afghanistan. While I find the circumstances surrounding his father’s death remain unclear, I have accepted it is plausible that he was killed by the Taliban. I have further accepted that the applicant returned to Ghazni Province in 2007, where he remained for one week without incident. On the evidence before me, I am not satisfied that the applicant faces a real chance of serious harm in Afghanistan on account of these past events, or the profile of his brothers, now or in the foreseeable future.

(Emphasis added)

19    A similar finding was made at [56] and, in the context of the complementary protection assessment, at [61]. As can be seen, the Authority found that there was no information detailing the basis upon which R was issued with the UNHCR refugee card. The Authority went on, however, to find that it was not satisfied that the appellant faced a real chance of serious harm on account of either of the activities of his brothers or their profiles in Afghanistan. Contrary to the submissions of the appellant, I do not read this as somehow excluding consideration of R’s refugee status. Indeed, in my view, that would be a somewhat curious reading. It seems to me that the conclusion of the Authority, that on the evidence it was not satisfied the appellant faced a real chance of serious harm in Afghanistan, including by reference to the profile of his brothers, was one which when construed fairly involved a determination that R’s refugee status (which the Authority knew arose following a UNHCR process) did not lead to the conclusion that the appellant faced a real chance of serious harm.

20    For these reasons, the appeal must be dismissed.

Associate:

Dated:    19 March 2019