FEDERAL COURT OF AUSTRALIA

MZARV v Minister for Home Affairs [2019] FCA 1984

ORDERS

THE COURT ORDERS THAT:

1.    The orders of the Federal Circuit Court of Australia made on 23 November 2016 be set aside, and in lieu thereof:

(i)    a writ of certiorari be issued, quashing the second respondent’s decision of 9 December 2014; and

(ii)    a writ of mandamus be issued, remitting the matter to the second respondent and requiring the second respondent (differently constituted) to determine the matter according to law.

2.    Unless a submission contesting the making of this costs order is filed and served on or before 2 December 2019, the first respondent pay the appellant’s costs of the appeal and of the proceeding in the Federal Circuit Court of Australia.

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 appeals from a judgment of the Federal Circuit Court of Australia delivered on 23 November 2016 and published as MZARV v Minister for Immigration & Anor [2016] FCCA 2898. By that judgment, the primary judge dismissed the appellant’s application seeking judicial review of the decision of what was at the time the Refugee Review Tribunal, and what is now the Administrative Appeals Tribunal (“Tribunal”). The Tribunal had earlier affirmed a decision of a delegate of the first respondent (“Minister”) not to grant the appellant a Protection (Class XA) visa (“visa”) under s 65 of the Migration Act 1958 (Cth).

background

2    The appellant is a male national of Iran of Ahwazi Arab ethnicity and Shia Muslim religion. He arrived in Australia on 12 February 2011. On 3 October 2012, having earlier been the subject of a protection obligations evaluation and an independent protection assessment, the appellant applied to the Department of Immigration and Citizenship (“Department”), as it then was, for a visa. That application was refused by a delegate of the Minister on 12 July 2013.

3    On 19 July 2013 the appellant applied to the Tribunal to review the delegate’s decision. On 4 December 2014 a member of the Tribunal affirmed the delegate’s decision (“first Tribunal decision”), this was communicated to the appellant by letter on 5 December 2014. On 10 December 2014 a further letter was sent to the appellant attaching a decision made on 9 December 2014 by the same member of the Tribunal (“Tribunal decision”).

The Tribunal decision

4    The Tribunal did not accept that the appellant had a well-founded fear of persecution for any reason under the Refugees Convention (Convention Relating to the Status of Refugees, done at Geneva on 28 July 1951, as amended by the Protocol Relating to the Status of Refugees, done at New York on 31 January 1967) upon return to Iran at the present time or in the reasonably foreseeable future, or that the appellant faced a real risk of significant harm for the purposes of the complementary protection criteria found in s 36(2)(aa) of the Migration Act. The Tribunal rejected the appellant’s claim that he had any outstanding court proceedings against him in Iran as a result of being discovered purchasing and consuming alcohol by Iranian authorities or that he was a person of any adverse interest to the authorities. As a result, the Tribunal concluded that there was not a real chance that the appellant would be considered to be a member of the particular social group “people who transgress religious moral codes/policies/laws”. While the Tribunal did accept that the appellant’s job opportunities may be limited in Iran due to his ethnicity, it did not accept that he faced a real chance of serious harm on the basis of his Ahwazi Arab ethnicity or Shia religion should he return to Iran now or in the reasonably foreseeable future. The Tribunal also rejected claims that the appellant would be treated differently on returning to Iran as a failed asylum seeker due to his Ahwazi Arab ethnicity. Further, the Tribunal rejected that the appellant would face a well-founded fear of persecution for reasons of his actual and/or imputed political opinion as being against the Iranian government, its religious leaders or institutions and/or as supportive of separatist views. The appellant’s claims were also rejected when considered cumulatively.

The primary judge’s judgment

5    The ground of judicial review relied on before the primary judge was an alleged failure on the part of the Tribunal to address an integer of the appellant’s claims, namely, what might occur to the appellant if he continued to drink alcohol if he was returned to Iran. The primary judge also considered an alternative submission that this claim emerged sufficiently clearly on the materials and should have been dealt with. The primary judge found that the Tribunal did not fall into jurisdictional error and dismissed the appellant’s application with costs.

The present appeal

6    By his notice of appeal, the appellant raised two grounds of appeal but only one ground was pressed. The appellant contended that the primary judge had erred by failing to hold that the Tribunal had failed to consider that because of his Ahwazi Arab ethnicity he would be at higher risk of suffering serious or significant harm if he continued to consume alcohol upon his return to Iran.

7    At the hearing of this matter on 26 March 2019 it came to the attention of the Court that the Tribunal had remade its original decision and a question arose as to whether the Tribunal was functus officio after the making of the first decision. That is, that having made the first Tribunal decision, the Tribunal had completed its statutory task with the consequence that it lacked the capacity to make the second Tribunal decision. I adjourned the hearing of the proceeding to give the parties an opportunity to make submissions on that issue. Following the filing of further written submissions from the parties, the issue was dealt with on the papers.

was the tribunal functus officio?

8    Following the first Tribunal decision of 4 December 2014 which was communicated to the appellant by letter on 5 December 2014, a case note was made by an official of the Tribunal on 5 December 2014 which sets out the following uncontested facts:

On 5/12/14 as per the Member’s instruction, the Member decided to revisit this case due to jurisdiction error.

9    On 5 December 2014 a further case note was made by Ms Zhu which stated:

On 5/12/14 as per the Member’s instructions, I called the Rep. advising that the Member decided to reopen this case due to jurisdiction error; and the Tribunal would advise the Rep./PRA about this matter in due course: the Rep. stated he understood that.

10    The decision was then remade on 9 December 2014 by the same member of the Tribunal who made the first Tribunal decision. A copy of the Tribunal decision was sent to the appellant by letter on 10 December 2014. The letter did not refer to the fact that the decision attached was in any way different to the decision sent to the appellant on 5 December 2014. The Tribunal decision is almost identical to the first Tribunal decision except for a few additional paragraphs acknowledging and dealing with written submissions made for the appellant on 4 December 2014.

11    Both parties accepted on this appeal that the Tribunal’s failure in the first Tribunal decision to deal with the content of the written submissions of the appellant of 4 December 2014 constituted jurisdictional error.

12    The Minister submitted that the Court should follow the majority in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597, and treat the first Tribunal decision, as affected by jurisdictional error and therefore no decision at all, such that the Tribunal was not functus officio when it made the Tribunal decision.

13    The relevant factual circumstances in Bhardwaj bare resemblance to the present proceeding and it is helpful to set them out briefly. The Tribunal in Bhardwaj received a letter from the respondent’s agent requesting an adjournment of his visa cancellation review hearing due to ill health. Due to an administrative oversight, the letter was not forwarded to the relevant Tribunal member. When the respondent did not appear at the hearing the Tribunal decided to reject the respondent’s application; the reason given being that the respondent had not provided any information suggesting his visa cancellation was unfair or inappropriate. Upon becoming seized of the knowledge that an adjournment request had been sent, the Tribunal arranged for a new hearing and ultimately accepted the respondent’s application by way of an amended decision. The Minister then sought judicial review of the Tribunal’s decision on the basis that the Tribunal was functus officio after making the first decision. The matter was appealed to the High Court where the Court decided, on differing bases, that the Tribunal was not functus officio.

14    In Bhardwaj, Gaudron and Gummow JJ (with whom McHugh J agreed) found (at [53]) that if a decision-maker makes a decision subject to jurisdictional error then the duty to make a decision remains unperformed and there is no legal impediment to the decision-maker remaking such a decision: see further Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476 at [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). A key consideration in Bhardwaj was that there were no provisions in the Migration Act which either directly or by implication purported to give legal effect to decisions of the Tribunal which involved jurisdictional error: see at [54] Gaudron and Gummow JJ, [67] McHugh J, [153] Hayne J.

15    In BMF16 v Minister for Immigration and Border Protection [2016] FCA 1530 at [149]-[151] I considered the decision in Bhardwaj as well as later authorities of this Court on the application of the principle in Bhardwaj stating that whether jurisdictional error will render a decision nugatory for all purposes may depend upon the statute pursuant to which the decision was made:

[149]    F contended that if I found, as I have, that F’s refusal decision is affected by jurisdictional error it ‘is a decision that lacks legal foundation and is properly regarded, in law, as no decision at all’: Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597 at [51] (Gaudron and Gummow JJ, with whom McHugh J relevantly agreed). That principle was adopted by Gaudron, McHugh, Gummow, Kirby and Hayne JJ in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476 at [76]. Most recently it was applied by the High Court in S297/2013 v Minister for Immigration (2015) 255 CLR 231 at [31] (French CJ, Hayne, Kiefel, Bell, Gageler and Keane JJ).

[150]    A number of decisions of the Full Court of this Court have expressed the view that whether jurisdictional error will render a decision nugatory for all purposes may depend upon the statute pursuant to which the decision was made. Bhardwaj has not been regarded as establishing a ‘universal proposition that jurisdictional error on the part of a decision-maker will lead to the decision having no consequences whatsoever’: Jadwan v Department of Health (2003) 145 FCR 1 at [42] (Gray and Downes JJ, with whom Kenny J agreed). Their Honours considered that the legal and factual consequences of such a decision ‘will depend upon the particular statute’. Those observations have been followed in Ma v Minister for Immigration and Citizenship [2007] FCAFC 69 at [27] (Lander J, with whom Mansfield and Siopis JJ agreed); SZKUO v Minister for Immigration and Citizenship (2009) 180 FCR 438 at [26] (Moore, Jagot and Foster JJ); Yu v Minister for Health and Others (No 2) (2013) 216 FCR 188 at [4] (Jessup J); Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 at [44] (Flick and Foster JJ with whom Katzmann J relevantly agreed) and see Lansen v Minister for Environment (2008) 174 FCR 14 at [159]–[165] (Moore and Lander JJ).

[151]    I respectfully agree with Muir JA (with whom Holmes JA and Lyons J agreed) who, at [66] of BM Alliance Coal Operations Pty Ltd v BGC Contracting Pty Ltd & Ors (2013) 1 Qd R 228, stated that ‘absent statutory provisions necessitating a contrary conclusion’, the general principle identified in Bhardwaj applies.

16    Consistently with the authorities just referred to, I will proceed on the basis that absent statutory provisions necessitating a contrary conclusion, the general principle identified in Bhardwaj applies.

17    The appellant contended that it was crucial to the decision in Bhardwaj that there was no provision in the Migration Act which purported to give legal effect to decisions which involved jurisdictional error. The appellant contended that since the decision in Bhardwaj, the Migration Act had been amended and relied on amendments made to s 430 of the Migration Act and, in particular, amendments made to ss 430(2) and (2A).

18    Relevantly, and post the amendments in question, s 430 provides:

430    Tribunal’s decision and written statement

Written statement of decision

(1)    Where the Tribunal makes its decision on a review (other than an oral decision), the Tribunal must make a written statement that:

   (a)    sets out the decision of the Tribunal on the review; and

   (b)    sets out the reasons for the decision; and

   (c)    sets out the findings on any material questions of fact; and

(d)    refers to the evidence or any other material on which the findings of fact were based; and

(e)    in the case of a decision under paragraph 426A(1C)(b) or subsection 426A(1E) to confirm the dismissal of an application—indicates that under subsection 426A(1F), the decision under review is taken to be affirmed; and

   (f)    records the day and time the statement is made.

Note:    Decisions on a review made under paragraph 426A(1A)(a) or (1C)(b), or under subsection 426A(1E), must be made by a written statement under this section. They cannot be given orally. These decisions may be made following the failure of an applicant to appear before the Tribunal.

How and when written decisions are taken to be made

(2)    A decision on a review (other than an oral decision) is taken to have been made:

(a)    by the making of the written statement; and

(b)    on the day, and at the time, the written statement is made.

Note:    For oral decisions, see section 430D.

(2A)    The Tribunal has no power to vary or revoke a decision to which subsection (2) applies after the day and time the written statement is made.

19    The appellant contended that s 430(2A) is intended to give legal effect to all decisions made by the Tribunal including decisions which involve jurisdictional error. The appellant’s construction involves reading the word “decision” as used in s 430, and in particular in s 430(2A), as meaning any decision including a decision that lacks legal foundation, and a decision which in the words of Gaudron and Gummow JJ in Bhardwaj is in law “no decision at all”. Given the decision in Bhardwaj, it is most unlikely that if Parliament had that intent, s 430(2A) would have been cast in the terms in which it was. Indeed the Explanatory Memorandum to the Migration Amendment Bill 2013 (Cth) which amended s 430 specifically disavowed any such intent. The Explanatory Memorandum at [101] stated:

101.    New subsection 430(2A), preventing variation or revocation of a decision after it is made by the [Tribunal], applies only to a decision that has been validly made and that does not involve legal error. A decision that is later found to be legally defective and to involve jurisdictional error may still be set aside, and remade according to law.

20    Furthermore, as the Explanatory Memorandum makes clear in its outline, the amendments to s 430 were made to address two Full Court judgments of this Court (Minister for Immigration and Citizenship v SZQOY (2012) 206 FCR 25 and Minister for Immigration, Multicultural Affairs and Citizenship v SZRNY (2013) 214 FCR 374) so as:

to clarify and provide certainty as to when a decision on review (other than an oral decision), or a visa refusal, cancellation or revocation decision by the Minister or his delegate, is taken to be made on the day and at the time when a record of it is made. That finalisation is not dependent upon when the decision is notified or communicated to the review applicant, the visa applicant or the former visa holder.

21    I reject the contention of the appellant that the inclusion of s 430(2A) into the Migration Act was intended to remove the Tribunal’s power to revisit a decision affected by jurisdictional error in the Bhardwaj sense.

22    Accordingly, absent any statutory provision necessitating a contrary conclusion, I would conclude that the general principle identified in Bhardwaj applies. In that circumstance, the first Tribunal decision is to be regarded in law as no decision at all and the Tribunal was not functus officio when it made the Tribunal decision.

Did the tribunal Fail to consider an argument or integer of a claim?

23    The applicable principles are settled and were not in dispute.  The Tribunal was required to consider and determine each of the claims expressly raised by the appellant and also those that clearly emerged from the material: see SZSHK v Minister for Immigration and Border Protection [2013] FCAFC 125 at [37] (Robertson, Griffiths and Perry JJ); see also AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [17]-[18] (Collier, McKerracher and Banks-Smith JJ). In Minister for Immigration and Citizenship v SZRMA (2013) 219 FCR 287, Mansfield, Gilmour and Foster JJ endorsed (at [70]) the observation made by Allsop J in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 that a claim must:

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.   

24    The issue for resolution is whether the Tribunal discharged its obligation to deal with the appellant’s claims concerning his consumption of alcohol. There is no dispute that at least one of the claims made by the appellant concerning his consumption of alcohol was squarely put and squarely addressed by the Tribunal. The Tribunal described that claim in the following terms at [9] of its reasons:

At hearing the applicant told the Tribunal that he was forced to flee Iran after he was discovered by Sepah to have purchased and consumed alcohol, leading to the commencement of court proceedings against him. In support of his claims the applicant provided copies and English language translations of four documents purporting to be court documents issued by the Iranian authorities on 23 December 2010, 15 January 2011, 14 February 201l and 6 March 2011.

25    That paragraph is the first paragraph of the section of the Tribunal’s reasons headed “The applicant’s claims to have outstanding court proceedings against him in Iran”. The claim identified in [9] was dealt with in the remainder of that section of the Tribunal’s reasons at [10]-[12]. At [10], the Tribunal identified and referred to inconsistencies in the evidence provided by the appellant in connection with his claim that he was wanted by the authorities in relation to his consumption of alcohol. At [11], based on perceived inconsistencies and the appellant’s delay in making his claim, the Tribunal stated that it did not “accept that the [appellant] was at any time observed by Sepah to purchase or consume alcohol, nor that the applicant departed Iran because of his view of being charged with offences or has been charged with such offences. It follows that the Tribunal does not accept the purported court documents to be genuine”. At [12], the Tribunal concluded this section of its reasons by stating:

The applicant’s evidence is that he departed Iran in January 2011 on a genuine passport issued to him in his own name and the Tribunal does not accept that the applicant was of any adverse interest to the authorities at that time. For these reasons the Tribunal does not accept there to be a real chance that the applicant will be considered to be a member of the particular social group ‘people who transgress religious moral codes/ policies/ laws’.

26    The appellant contended that beyond his claim that he faced persecution for historical alcohol related offences should he be returned to Iran, he also raised with the Tribunal a claim that, should he be returned to Iran, he feared that his future consumption of alcohol would, in the context of alcohol consumption being illegal and because of his Ahwazi Arab ethnicity, render him susceptible to serious and significant harm if his alcohol consumption was discovered by the Iranian authorities.

27    The Minister contended that no such claim was squarely raised before the Tribunal. Alternatively, the Minister contended (as I detail below) that any such claim was impliedly dealt with and disposed of when the Tribunal dealt with what may fairly be regarded as the appellant’s principal claim in relation to the consumption of alcohol addressed at [9] of the Tribunal’s reasons and set out above.

28    The primary judge concluded at [50] of his Honour’s reasons that “it is plain that the applicant never did expressly suggest that he faced risk of persecution because if he returned to Iran he would continue to consume alcohol and face persecution as a result”. The primary judge at [52] rejected that such a claim was sufficiently clear from the material before the Tribunal. His Honour said that “[t]he reality is that only the most glancing reference was made in the materials and only the smallest emphasis placed by the applicant’s representative upon such a possibility”.

29    The appellant contended that the claim relating to his future consumption of alcohol was expressly raised, or in the alternative, sufficiently arose from the material. In support of that submission, the following matters were relied upon.

30    On 26 March 2014, the appellant’s legal representative provided the Tribunal with a submission in support of the appellant’s application (“written submission”). The written submission stated that the appellant feared persecution by reason of (inter alia), his ethnicity as an Arab originating from Ahwaz and also his membership of a particular social group, being “[p]eople who transgress religious moral codes/policies/laws”. These fears were elaborated upon in the written submission. Having referred to and relied upon various country information reports, the submission said:

Based on available reports referring to the discrimination and mistreatment encountered by Ahwazi Arabs at the hands of the Iranian authorities, we submit that due to the Applicant’s ethnicity, he would be at an elevated risk of harm on return to Iran

31    Under the heading “Perceived non conformist [sic] as being against the Iranian government, its religious leaders or institutions and/or as supportive of separatist views” the written submission stated the following (emphasis added):

Country information supports the Applicant’s claims that the authorities continue to target any person that is perceived to be anti-government or shows any signs of political dissent. The Applicant claims he has been imputed with an anti-government opinion for transgressing religious social and moral codes, policies and laws in Iran by virtue of the fact he was caught consuming alcohol. According to Iran’s penal code, consumption of alcohol is a hadd crime, or a crime against God, for which shari’a, or Islamic law, assigns fixed and specific punishments including the death penalty. Furthermore, he claims that due to his Ahwazi Arab ethnicity, he is more likely to attract the adverse attention of the Iranian authorities and is at an elevated risk of harm.

…

The Applicant fears he would continue to attract the adverse attention of the authorities in his area as someone who has not and will not adhere to the strict Islamic moral codes currently being enforced in the country.

…

The Applicant has previously encountered harm in Iran owing to his perceived breach of strict Islamic social mores. Further breaches would expose the Applicant to additional harm and particularly given the stigma attached to him owing to his alcohol consumption and his Ahwazi ethnicity. The current climate in Iran supports [sic] the Applicant would then continue to remain at risk of harm by the authorities, including the Basij and morality police, owing to the perception he is a trouble maker and non-conformist challenging the legitimacy of the government and its religious based instituted [sic].

32    The appellant also relied upon the following statement made by him at the Tribunal hearing of 27 November 2014, as recorded in the transcript of that hearing:

I actually had a problem back in Iran and my life was in danger. I’d been drinking alcohol and its considered to be illegal to drink alcohol in Iran and I was given a warning, and because I was also an Arab ethnic background – an Arab ethnic background, it was even a worse case for me to consume alcohol, and so my life was in danger and I didn’t feel secure in the country anymore. So we had to travel and so that they managed to find me they would have persecuted me and they would have tortured me and my family would have never been able to find out where I am.

33    The references made in the written submission to the appellant not adhering to “Islamic moral codes” and breaching “Islamic social mores” and extracted above must, read in context, be understood as referring to prohibitions on the consumption of alcohol.

34    It may be accepted that the appellant’s expressed fears about future transgressions of Iranian law by consuming alcohol received relatively minor attention in the context of all of the appellant’s expressed claims. Whilst that observation may warrant the conclusion expressed by the primary judge that the claim was not emphasised, it does not necessarily warrant the conclusion that the claim was not made. In my view it was.

35    Understandably, the appellant’s statements that he:

    “fears he would continue to attract the adverse attention of the authorities”;

    “has not and will not adhere to the strict Islamic moral codes currently being enforced in [Iran]”; and

    that “[f]urther breaches would expose [the appellant] to additional harm and particularly given the stigma attached to him owing to his alcohol consumption and his Ahwazi ethnicity”

were all made in the context of the appellant’s claim of historically offending Iran’s alcohol consumption laws. However, the fears expressed and recorded above are clearly addressing the appellant’s fear of future offending as distinct from his fear that he will be persecuted for his historical offending.

36    In my view, although the Tribunal clearly appreciated that the appellant held a fear and therefore was making a claim in relation to his historical offending of Iran’s laws against the consumption of alcohol, the Tribunal failed to appreciate that the appellant had also expressed a fear, and therefore was making a claim, in relation to the likelihood that if returned to Iran he would continue drinking alcohol and if caught and because of his Ahwazi Arab ethnicity he would be exposed to persecution. The fear expressed in relation to historical offending and the fear expressed in relation to future offending are sufficiently discrete and separate to have warranted independent consideration.

37    In my view the claim that by reason of his future breaches of Iran’s alcohol consumption laws, the appellant would be exposed to significant harm by reason of his Ahwazi Arab ethnicity arose sufficiently from the material before the Tribunal to have required the Tribunal in the circumstances to have appreciated its existence. With respect to the primary judge, his Honour erred in concluding that the claim was either not expressly made or did not arise on the material before the Tribunal.

38    I turn then to the alternative argument raised by the Minister, that in addressing and rejecting the appellant’s claim about his fear in relation to historical offending, the Tribunal implicitly rejected the appellant’s claim in relation to future offending. That submission was premised on the contention that the Tribunal made a finding that the appellant was not a person who consumed alcohol at all. On the basis of the Tribunal having made that finding, the Minister contended that a claim about the future consumption of alcohol by the appellant was implicitly rejected. The difficulty with that contention is that the Tribunal did not make a finding that the appellant was not a person who did not consume alcohol. All that the Tribunal relevantly did, was to hold that the appellant had not been caught and charged with alcohol consumption as he had alleged.

Conclusion

39    In my view the Tribunal’s decision is affected by jurisdictional error because the Tribunal failed to appreciate and failed to deal with a claim made by the appellant. The primary judge erred in failing to identify that jurisdictional error. It follows that the appeal must be allowed. I will make orders setting aside the orders made by the primary judge and Tribunal’s decision and an order remitting the matter to the Tribunal for reconsideration. Given that adverse credit findings were made by the Tribunal member who made the Tribunal decision, it is appropriate that the Tribunal be reconstituted.

40    The question of costs was not the subject of any submissions. I am not aware of any reason why the usual order that costs follow the event should not be made. I will make a conditional order that the Minister pay the appellant’s costs of the appeal and of the proceeding before the primary judge if the making of such orders is not in contest. If it is, the Minister can avoid that order coming into effect by filing and serving a short submission contesting costs. If such a submission is filed, the appellant should file a short responding submission within 7 days. I will then determine any costs issues on the papers.

Associate:

Dated:    25 November 2019