Federal Court of Australia

SZRKG v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1389

ORDERS

THE COURT ORDERS THAT:

1.    The name of the first respondent be amended to Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.

2.    Leave to rely on the first ground of appeal is refused.

3.    The appeal be dismissed.

4.    The first appellant must pay the first respondent’s costs as agreed or taxed.

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

REASONS FOR JUDGMENT

FARRELL J:

1    This is an appeal from a judgment of the Federal Circuit Court of Australia (FCCA): SZRKF v Minister for Immigration [2018] FCCA 1403.

Procedural history

2    The FCCA Judge dismissed the appellants’ application for judicial review of a decision of the Administrative Appeals Tribunal (known at the time of the decision as the Refugee Review Tribunal) (Tribunal) dated 22 May 2015. The Tribunal affirmed a decision of a delegate of the then Minister for Immigration and Citizenship not to grant each of the appellants a Protection (Class XA) visa (protection visa).

3    There is a substantial history to the appellants’ attempts to obtain a protection visa, which were summarised in the Tribunal’s decision record (or DR) at DR[2]-[7] and [10]. Words bolded in the following extract bear the same meaning in these reasons:

2.    The applicants are husband, wife and their daughter, who was born in Australia on [redacted] 2009. They are citizens of India and followers of the Sikh religion. The first named applicant completed Form 866C, for applicants who wish to submit their own claims for protection. The second and third named applicants completed Form 866D, for members of the family unit who do not have their own claims to be a refugee but are included in the application. For convenience, the Tribunal will refer to the first named applicant as ‘the applicant’, to the second named applicant as ‘the applicant wife’ and to [the third] named applicant as the ‘applicant daughter’.

3.    The applicant arrived in Australia in August 2008 and applied to the Department of Immigration (the department) for a protection visa on 8 September 2008 (first application). The applicant attended an interview (the first interview) with the department on 14 November 2008 in connection with his first application. The delegate did not find the applicant to be credible and decided to refuse to grant the visas on 6 December 2008.

4.    The applicant applied for a review of the delegate’s decision. He attended a hearing on 10 March 2009 (the first hearing) and a differently constituted Tribunal (the first Tribunal) affirmed the delegate’s decision on 26 March 2009. The applicant’s subsequent request for Ministerial Intervention was not considered.

5.    On 1 April 2011, the applicant daughter applied for a protection visa (the applicant daughter’s application for a protection visa). The applicant was interviewed on 11 August 2011 in relation to his daughter’s claims. The delegate decided to refuse to grant the visa on 12 August 2011 and she applied to the Tribunal, differently constituted, on 26 August 2011 for review of the delegate’s decision. The applicant appeared before the Tribunal on 12 January 2012 to give evidence and present arguments on behalf of his daughter (the applicant daughter’s hearing). On 21 March 2012 the Tribunal affirmed the delegate’s decision.

6.    The applicant applied to the department a second time for a protection visa on 6 January 2014 (second application). He attended a departmental interview by telephone on 12 May 2014 (the second interview). The delegate did not find the applicant’s claims to be credible and refused the application on 16 May 2014.

7.    The applicant applied for a review of the delegate’s decision to the presently constituted Tribunal (the Tribunal) on 13 June 2014. The applicant appeared before the Tribunal on 13 May 2015 to give evidence and present arguments. The Tribunal hearing (the second hearing) was conducted with the assistance of an interpreter in the Punjabi and English languages.

…

10.    … The applicant wife did not provide oral evidence to the department or the Tribunal at any point.

4    The submissions filed on behalf of the first respondent (Minister) note the following about the procedural history:

3.    Only the [husband] was invited to, and attended, an interview in relation to the first application. A delegate of the first respondent refused the first application. The delegate’s decision record lists the [wife] as a member of the family unit not making specific claims. The delegate rejected the [husband’s] claims. Although, in doing so, the delegate rejected those aspects of the [husband’s] claims concerning the [wife], the delegate did not expressly consider her application against s 36(2)(a) of the Migration Act 1958 (Cth) (the Act). The delegate found that, as he had refused the [husband’s] visa application, the [wife’s] visa application was necessarily also refused.

4.    … On 26 March 2009, the Tribunal affirmed the delegate’s decision, refusing to grant the [husband and wife] Protection visas. The Tribunal stated that only the [husband] had made Convention-related claims. The Tribunal considered and rejected the claims the [husband] advanced concerning harm to the [wife].

5.    The Tribunal stated that it was required to consider the situation if the appellants were to return to India now or in the reasonably foreseeable future. The Tribunal considered the appellants’ Sikh religion, and the availability of state protection. The Tribunal concluded that it had considered whether all of the Convention related harms feared by the appellants cumulatively amounted to persecution. On the basis of the evidence before it, the Tribunal was not satisfied that the harm feared by the appellants gave rise to a real chance of persecution now or in the reasonably foreseeable future. At [79] of its reasons, however, the Tribunal made the observation that, despite the [husband] having made claims concerning the [wife], the [wife] had only lodged an application form as a member of the [husband’s] family unit.

6.    The Tribunal did not accept that either of the appellants had a well-founded fear of persecution for a Convention reason, and found they did not meet s 36(2)(a) of the Act.

7.    The [daughter], who was born in Australia subsequent to the first application, applied for a Protection visa on 1 April 2011. The [husband] and [wife] were included in her visa application as members of her family unit. The [husband’s] and [wife’s] applications were found to be invalid. The [daughter’s] application was refused by a delegate of the first respondent and, on 21 March 2012, the Tribunal affirmed the delegate’s decision. The Tribunal found it did not have jurisdiction with respect to the [husband] and [wife].

8.    On 24 March 2012, the complementary protection provisions commenced, following passage of the Migration Amendment (Complementary Protection) Act 2011.

9.    On 3 July 2013 the Full Federal Court handed down its judgment in SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235. The effect of that judgment was that the each of the appellants was only prohibited from lodging a subsequent Protection visa application in respect of a particular criterion in circumstances where an application in respect of that criterion had already been determined. Section 48A of the Act, as it then stood, did not prevent any of the appellants lodging a valid application in respect of a particular criterion which was not the subject of a previous application.

10.    As has been set out above:

(a)    the [husband] had previously applied for a Protection visa reliant on the criterion in s 36(2)(a) (that is, the first application). He had not made an application reliant on the complementary protection criterion in s 36(2)(aa);

(b)    the [wife] had applied for a Protection visa as a member of the [husband’s] family unit. The [wife] had not, however, made an application reliant on the criteria in ss 36(2)(a) and/or s 36(2)(aa); and

(c)    the [daughter] had, in her own visa application lodged on 1 April 2011, made an application reliant on the criterion in s 36(2)(a). She had not made an application reliant on the criterion in s 36(2)(aa).

11.    On 6 January 2014, the appellants lodged a second Protection visa application (the second application). The second application included the [husband] as primary visa applicant, and the [wife] and [daughter]. The [husband] completed a ‘part C’ visa application form as a person who wished to submit their own claims for protection. The [wife] and [daughter] both completed ‘part D’ application forms as members of the [husband’s] family unit who did not have their own claims to protection.

12.    The [husband] was invited to and attended an interview by telephone, in connection with the second application. A delegate of the first respondent refused the second application on 16 May 2014. The delegate’s decision record refers to the [wife] and [daughter] as members of the [husband’s] family unit.

13.    The delegate found the second application was a valid application, on the basis of the judgment in SZGIZ, as the first application was made and refused prior to the commencement of the complementary protection provisions on 24 March 2012. The delegate rejected the entirety of the [husband’s] claims, including those concerning the [wife].

14.    The delegate considered the second application against both of the criteria in ss 36(2)(a) and 36(2)(aa) of the Act. With respect to the criterion in s 36(2)(aa) (that is, the complementary protection criterion), the delegate relied upon the factual findings which he or she had made, rejecting the entirety of the [husband’s] material claims. Accordingly, the delegate did not accept that the [husband] faced a real risk of significant harm on his return to India. The delegate did not make any express findings concerning the [wife’s] non-satisfaction of ss 36(2)(a) or (aa). The delegate found that, as he or she was not satisfied that the [husband] met the criteria for the grant of the visa, the [wife] (and [daughter’s]) applications as members of the family unit were consequently refused.

15.    The appellants sought review of the delegate’s decision by the Tribunal. By letter dated 25 February 2015, the Tribunal wrote to the appellants and invited them to attend a hearing before it. Ultimately, the appellant attended a hearing before the Tribunal on 13 May 2015.

16.    On 22 May 2015 the Tribunal made its decision, affirming the decision of the first respondent’s delegate not to grant the appellants Protection visas.

…

20.    Amendments to the Act consequent upon the judgment in SZGIZ were made to s 48A by the Migration Amendment Act 2014 (Cth), which came into force on 28 May 2014. Item 5 of Schedule 2 of that Act provided that s 48A as amended applied to making a (second) ‘application for a protection visa’ after that date. As such, these amendments had no application to the second application.

Tribunal’s decision

5    The Tribunal set out the husband’s claims made in the first and second applications at DR[8]-[9] and dealt with oral evidence given by the husband before each of the delegates and Tribunals in the course of its consideration of its reasons and findings: DR[10]. The summary of the claims made in the first and second applications is as follows:

8.    In his first application for a protection visa the applicant claimed that he is a district level leader of the Congress Party (INC). He had a strong hold of mainly young votes in his area. During the 2007 State elections, the opposition BJP candidate, Harbijan Singh Chema (Cheema) MLA, ordered him to force his members to vote in his favour. The applicant refused and Mr Cheema threatened to kill him and his wife. He reported the matter to higher authorities but they did not take any action. A few days before the elections they kidnapped him and his wife so that they could not campaign in favour of the INC. He could not contact his party. They threatened to kill him and his wife in jail. They asked him to change his vote in favour of the BJP candidate. He refused. They scared his party members when he was in jail and forcibly stopped INC members voting on election day which resulted in the defeat of their candidate. If he had not been kidnapped and detained, the INC would have won the seat. They released him after the elections and threatened him with physical harm on a daily basis because he did not follow their orders during the 2007 elections. He reported the threats to the INC but they were unable to take any action because they were not in power. He fears that if he returns to India, the ruling party will harm him by detaining him or pressing false criminal charges against him. He also fears the opposition harming his family. The local police follow orders from Mr Cheema who considers the applicant his enemy.

9.    In his second application for a protection visa the applicant raised similar claims, stating that he joined the INC in 2006 as his father and grandfather before him were members of the party. In early 2007, just before the State elections, he became a 'Block President. The leader of the BJP asked him to switch over and join forces with him, but the applicant refused. A week before the elections, the applicant and his wife were kidnapped. They were released after the elections. The applicant wife was sexually assaulted but the police took no action against the culprits. He reported the matter to the central government but no action was taken. The applicant and his wife were constantly threatened and attempts were made to kill them many times. They had no option but to leave the country. he claimed that they did not withdraw the case against the BJP and if they go back to India they will be killed. They will have no protection from the police.

6    The Tribunal found that, applying the reasoning of the Full Court of the Federal Court in SZGIZ v Minister for Immigration and Citizenship [2013] FCAFC 71; (2013) 212 FCR 235, it did not have power to consider the Refugees Convention criterion in s 36(2)(a) and proceeded on the basis that it could only consider the husband’s claims under the complementary protection provision in s 36(2)(aa) of the Migration Act: DR[11].

7    The Tribunal did not find the husband to be a credible, truthful or reliable witness and concluded that he showed a propensity to manufacture, shift and tailor evidence and he fabricated and concocted evidence to achieve an immigration outcome. In reaching that conclusion, the Tribunal had regard to the “significant inconsistencies” in his evidence throughout the process as well as reasons given later in the decision record: DR[16], [36].

8    The Tribunal grouped the inconsistencies in the husband’s evidence as inconsistencies concerning:

(a)    Events surrounding the state election in 2007: DR[17]-[21]. The Tribunal found that his evidence concerning the date on which the election was held and the name of the candidate for whom he said he worked was inconsistent with independent evidence. The Tribunal found that it was not credible that the husband would not be able to accurately recall this information and his explanations did not satisfactorily address the inaccuracies which cast doubt on his claims;

(b)    The date of the husband and wife’s marriage and when he and others were kidnapped relative to when the state elections were held in 2007 and concerning whether his wife was kidnapped at that time and a sexual assault on her occurred: DR[22]-[29]. The Tribunal found that the inconsistencies, changes and fundamental “implausibilities” in his evidence at various stages seriously undermined his credibility and cast serious doubt on his claims; and

(c)    Where and for what periods the husband and wife lived after the state elections in 2007 and whether they had been subject to any threats or harassment: DR[30]-[34].

9    The Tribunal also found that doubt was cast on the husband’s claim to fear harm by the fact that he obtained a passport in April 2007 but did not depart India until August 2008: DR[35].

10    The Tribunal therefore did not accept his claims or that there were substantial grounds for believing that, as a necessary and foreseeable consequence of him being removed from Australia to India, there was a real risk that he would suffer significant harm (as defined in s 36(2A) of the Migration Act) as a result of his real or perceived political opinion, his religion or any other factor arising from his circumstances: DR[37]-[38].

11    The Tribunal then made findings concerning the wife and daughter. The Tribunal noted that the wife and daughter did not submit claims for protection of their own. It noted that, at various stages, the husband claimed “on his wife’s behalf” that she had been kidnapped, sexually assaulted, mistreated and threatened with physical harm and death, but the Tribunal rejected those claims for reasons previously given: DR[39]. It also noted that the husband expressed concern for the safety of his wife and daughter and stated that he did not want to expose them to any form of danger. His concern was said to be because there are lots of kidnappings and killings in India. The Tribunal noted that it had “comprehensively rejected” his claims and that the husband had provided no further meaningful reasons or information as to why he believed his wife and daughter would be killed or kidnapped: DR[40]. The Tribunal then found as follows at DR[41]-[42]:

41.    The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife and the applicant daughter being removed from Australia to India, there is a real risk that they will suffer significant harm arising from the applicant's real or perceived political opinion or the applicant wife's real or perceived political opinion. The Tribunal is not satisfied that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife and the applicant daughter being removed from Australia to India, there is a real risk that they will suffer significant harm as a result of their religion or any other factor arising from their circumstances or the circumstances of the applicant. The Tribunal does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife and the applicant daughter being removed from Australia to India, there is a real risk that they will be arbitrarily deprived of their lives; that the death penalty will be carried out on them, that they will be subjected to torture, that they will be subjected to cruel or inhuman treatment or punishment or that they will be subjected to degrading treatment or punishment as defined. The Tribunal, therefore, does not accept that there are substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant wife and the applicant daughter being removed from Australia to India, there is a real risk that they will suffer significant harm as defined in subsection 36(2A) of the Migration Act.

42.    For the reasons given above the Tribunal is not satisfied that any of the applicants is a person in respect of whom Australia has protection obligations. The applicants do not satisfy the criterion set out in paragraph 36(2)(aa) of the Act for a protection visa. It follows that they are also unable to satisfy the criterion set out in s.36(2)(b) or ( c). As they do not satisfy the criteria for a protection visa, they cannot be granted the visa.

FCCA decision

12    The grounds of review relied upon by the appellants before the FCCA were as follows (as written):

1.    The second respondent failed to comply with the mandatory requirement under section 424A (read with section 424AA) of the Migration Act to give the applicant clear particulars of information it considered would be part of the review for affirming the decision under review, to ensure the applicants understood why that information was relevant to the review and the consequence of its being relied upon, and to invite the applicant to comment upon or respond to that information.

Particular:

The Tribunal did not issue any written invitation under section 424A of the Act and, made no attempt to, and did not, comply with the requirements set out in section 424AA of the Act.

2.    The Tribunal had no jurisdiction to make the said decision because its “reasonable satisfaction” was not arrived in accordance with the requirements of the Migration Act.

3.    The applicants satisfy the key elements of the Convention definition as detailed in the Tribunal decision. The Tribunal has not considered this aspect and therefore committed factual and legal error.

13    In rejecting the first ground of review, the FCCA Judge found (at J[25]-[34]) that:

(a)    The ground does not identify the “information” of which it is asserted that the Tribunal failed to give clear particulars under s 424A of the Migration Act.

(b)    On the assumption that the intent of the first ground was to attack the Tribunal’s reliance on reference to prior inconsistent evidence in relation to the topics referred to at [8] above in assessing his credibility and failed to give the husband clear particulars of those inconsistencies under either s 424AA or s 424A of the Migration Act, the ground must fail for the following reasons:

(i)    It is entirely conventional for the purpose of criminal and civil litigation for there to be consideration and comparison of any prior inconsistent statements or evidence in the course of assessing trustworthiness and veracity. Such inconsistencies do not constitute “information” for the purposes of s 424A, relying on SZTNL v Minister for Immigration and Border Protection [2015] FCA 463; (2015) 231 FCR 204 at [53] (Griffiths J) and SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 235 ALR 609 (SZBYR) at [18] (Gleeson CJ, Gummow, Callinan, Hayden and Crennan JJ). The obligation of the Tribunal to give information under ss 424AA and 424A only applies to “information” that contains a rejection, denial or undermining of the husband’s claims (relying on SZBYR at [17]). The evidence given by the husband which was considered by the Tribunal to be inconsistent was evidence which he had given in support of his claims and not evidence rejecting, denying or undermining those claims for protection.

(ii)    Insofar as the first ground asserts that the Tribunal was under an obligation “… to ensure the applicants understood why that information was relevant to the review and the consequences of its being relied upon, and to invite the applicant to comment upon or respond to that information”, the Tribunal was under no such obligation, relying on Muin v Refugee Review Tribunal [2002] HCA 30; (2002) 190 ALR 601 at [265]-[266] and [268] (Hayne J) and SZMDB v Minister for Immigration and Citizenship [2008] FCA 1937; (2008) 105 ALD 499 at [36]-[37] (Graham J).

(iii)    In any event, it is clear from the decision record that the Tribunal did give clear particulars of the inconsistencies with which it was concerned to the husband. The FCCA Judge referred to DR[21], [28], [29] and [34].

14    The FCCA Judge (at J[35]) rejected the second ground of review on the basis that it was unparticularised and failed to identify in any meaningful or coherent way why or how it was said that the Tribunal had no jurisdiction to make the decision which it did, relying on WZAVW v Minister for Immigration and Border Protection [2016] FCA 760 (WZAVW) at [35] (Gilmour J).

15    The FCCA Judge found (at J[36]) that the third ground of review failed to establish jurisdictional error because the Refugees Convention criterion in s 36(2)(a) of the Migration Act was irrelevant on the basis that the Tribunal was in the same position as the delegate and it only had jurisdiction to consider the protection visa application under the complementary protection criterion, relying on Minister for Immigration and Border Protection v SZVCH [2016] FCAFC 127; (2016) 244 FCR 366 at [44] (Kenny, Siopis and Besanko JJ) and [113]-[114] (Mortimer J).

16    The FCCA Judge then turned to consider a matter raised by the Minister as a model litigant at J[37]-[40]. A delegate of the Minister had issued certificates dated 16 May 2014, 12 August 2011 and 8 December 2008 purportedly pursuant to s 438 of the Migration Act, each addressed to the District Registrar of the Tribunal. The folios of the departmental files to which the certificates related concerned the provision and booking of interpreters in the Punjabi language. The Minister conceded that the certificates were invalid. The FCCA Judge accepted the Minister’s submission that, although the certificates were invalid, no procedural unfairness had been occasioned to the appellants by reason of their non-disclosure because the certificates and the documents referred to in them were entirely irrelevant and immaterial to the Tribunal’s review of the delegate’s decision and they could not conceivably have had any impact on the outcome of the review and there was no practical unfairness caused, relying on BZV15 v Minister for Immigration and Border Protection [2017] FCA 1522 at [2]-[4] (Robertson J). The FCCA Judge noted that, at the hearing, the husband sought an opportunity to comment on the authorities relating to s 438 certificates discussed in the Minister’s submissions, that opportunity was granted but no written submissions were received from him.

Appeal

17    The appellants’ grounds of appeal are as follows (as written):

1.    The Hon. Judge failed to consider that The Tribunal misconstrued the risk and fear of significant harm as set out in s.36(2A) of the Migration Act 1958.

The Tribunal construed erroneously (and narrowly) the existence of risk to life and fear of significant harm to the applicants upon their return to India.

2.    The learned Federal Judge has dismissed the case without considering the legal and factual errors contained in the decision of the AAT.

18    The Minister filed written submissions in advance of the hearing. The appellants did not.

19    In the late afternoon of the penultimate day before the hearing, the Minister filed a notice of contention, the ground of which was as follows:

Instead of the basis on which the primary judge rejected ground three of the application before his Honour, the primary judge ought to have held that:

a)    As the first respondent’s delegate in the 6 December 2008 decision had only rejected the appellant wife's visa application under the family unit criterion in s 36(2)(b) of the Migration Act 1958 (Cth) (the Act), the second respondent (Tribunal) erred in not assessing her application by reference to both of ss 36(2)(a) and 36(2)(aa) of the Act.

b)    However, in circumstances where the totality of the appellant wife’s material factual claims were rejected, the Tribunal’s error was immaterial and therefore not jurisdictional.

20    The appellants were not legally represented at the hearing. Only the husband appeared. He only made one submission: he urged the Court to “do the right thing”. As the Minister’s notice of contention had been filed so proximately to the hearing, the Court enquired of the husband whether he wished for an opportunity to make submissions in relation to it. The husband indicated that he wished to have that opportunity, including to take legal advice. The Court granted the husband leave to file written submissions in relation to the notice of contention, but no written submissions were received.

21    The Court accepts the Minister’s submission that the first ground of appeal relates to an issue which was not raised before the FCCA Judge, even though the ground asserts a failure on the part of the FCCA Judge. The Court is satisfied that leave to raise this new ground on appeal should not be granted because:

(a)    It is not expedient in the interests of justice to grant leave to permit the ground to be run for the first time on appeal, primarily because it lacks merit: see VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; (2004) 238 FCR 588 at [46]-[48] (Kiefel, Weinberg and Stone JJ).

(b)    The decision record does not reveal any misconstruction of the relevant law as to what constitutes a risk of “significant harm”: see DR[12]-[14], [38] and [41].

(c)    The Tribunal addressed the appellants’ “risk of fear of significant harm” in its findings and reasons and rejected that such harm existed expressly by reference to the matters addressed in s 36(2A) of the Migration Act. It follows that the Tribunal did not fail to consider whether the appellants would face significant harm: see DR[37]-[38] and [39]-[41].

(d)    To the extent that the ground invites the Court to consider the merit of the Tribunal’s decision, it invites impermissible merits review.

22    The second ground of appeal should be rejected. It is well established that the fact that an appeal ground is put with a high degree of generality and lack of specificity or any real particulars is itself a sufficient basis for dismissing that ground: see WZAVW at [35] followed in BYM16 v Minister for Immigration and Border Protection [2018] FCA 326 at [12]-[13] (Bromwich J); CHM16 v Minister for Immigration and Border Protection [2018] FCA 1132 at [27] (Perry J); BDE16 v Minister for Immigration and Border Protection [2019] FCA 816 at [20] and [24] (Reeves J); ANA18 v Minister for Home Affairs [2018] FCA 1854 at [59] (Derrington J); DIF17 v Minister for Immigration and Border Protection [2019] FCA 1055 at [29] (Abraham J); and GSQ18 v Minister for Home Affairs [2019] FCA 2057 at [14] (Lee J).

23    The Minister made the following submissions in relation to the matters raised in the notice of contention:

(a)    In SZGME v Minister for Immigration and Citizenship [2008] FCAFC 91; (2008) 168 FCR 487 at [73]-[94] (SZGME) (Black CJ and Allsop J), the majority of the Full Court of the Federal Court accepted that there was no reason why an applicant could not apply for a protection visa both on the basis of claims of his or her own and as a member of a family unit. The Full Court also held that an applicant could change the nature of his or her claims before the Tribunal.

(b)    In this case, claims by the wife to have experienced past harm and to fear future harm amounting to serious or significant harm arose squarely on the material before the Tribunal in the sense considered in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; (2004) 144 FCR 1 (NABE) (Black CJ, French and Selway JJ). As the Full Court held in NABE at [58], the Tribunal is not to limit its determination to the “case” articulated by an applicant if a case that was not expressly articulated is apparent on the face of evidence and material accepted by the Tribunal. Independent protection claims on the part of the wife arose clearly on the material provided in connection with the visa application.

(c)    The Minister noted that, in obiter remarks in SZRNJ v Minister for Immigration and Border Protection [2014] FCCA 782 at [22]-[24], Judge Cameron held that it is the criterion addressed by the first respondent’s delegate that is dispositive when consideration is being given to whether an applicant has made an application for a protection visa relying upon a particular criterion.

(d)    The Minister concedes that, as the delegate in the 6 December 2008 decision only rejected the wife’s visa application under the family unit criterion in s 36(2)(b) of the Migration Act, the Tribunal erred in not assessing her second application by reference to both ss 36(2)(a) and 36(2)(aa) of the Migration Act. The Minister therefore concedes that the FCCA Judge was also incorrect in his finding in relation to the third ground of review for the reasons set out in the notice of contention.

(e)    However, the Minister submitted that where the totality of the wife’s material factual claims were rejected, the Tribunal’s error was immaterial. It did not matter whether the wife’s application was considered by reference to ss 36(2)(a) or 36(2)(aa), or both. The wife’s application was bound to fail by reference to both criteria, in circumstances where the totality of her claims were rejected at a level of fact: see Hossain v Minister for Immigration and Border Protection [2018] HCA 34; (2018) 264 CLR 123 at [31] (Kiefel CJ, Gageler and Keane JJ) and [72] (Edelman J).

(f)    Ground three of the application before the FCCA Judge alleged that the appellants satisfy the elements of the Refugees Convention definition. Although not put to the FCCA Judge in these terms, that ground of review might have been construed as an allegation that the Tribunal erred in not considering the wife’s claims against s 36(2)(a). For the reasons given above, if that is how the ground of review is construed, the Minister conceded that the Tribunal fell into error but submitted that its error was not jurisdictional because it was not material.

24    The Minister has acted appropriately in considering whether or not there is evident error in the Tribunal’s reasons or in the FCCA Judge’s decision, notwithstanding the inadequacy of the grounds of appeal filed by the appellants who are not legally represented.

25    However, it is not entirely clear to the Court that the Minister’s concession of error by the Tribunal and the FCCA Judge is well founded. Although, at DR[39], the Tribunal referred to the husband’s claims concerning the sexual assault and molestation of his wife when they were kidnapped at the time of the state election in 2007 as being made “on her behalf”, it is not clear that his claim was ever cast in those terms. It was part of the husband’s claims made to the first Tribunal in relation to the first application and in the second application that his wife was sexually assaulted or molested at that time in 2007. However, the wife never made a claim of her own for protection and, despite opportunities to do so in relation to the first and second applications and in the daughter’s application, she never gave evidence to the Department or any of the Tribunals that considered the first and second applications or the daughter’s application. Her fear is an essential element of any claim she has to protection; she never stated that she has such a fear and her fear does not clearly arise from the materials. The Minister relied on SZGME. That case is distinguishable. While SZGME originally only claimed a visa as a member of her daughter’s family unit and she did not complete the part of the application whereby a member of a family unit may state their own claims to protection, she ultimately did make her own claims to protection: see SZGME at [58] and [64].

26    If, contrary to that view, the Minister’s concession was properly made, the Court accepts the Minister’s submission that any error which the Tribunal made by not considering whether the criterion in s 36(2)(a) of the Migration Act applied to the wife is not material and that no practical injustice arises from any such error for the following reasons:

(a)    The husband’s factual claims, including the claim about the sexual assault or molestation of the wife in 2007, were considered and rejected by the first Tribunal on the basis of inconsistencies in the husband’s evidence leading to a finding that he was not a witness of truth and had fabricated his claims. While noting that the wife had not made claims of her own, the first Tribunal found that neither the husband nor the wife satisfied the criterion in s 36(2)(a) of the Migration Act: see [56], [59] and [78]-[81] of the reasons dated 26 March 2009.

(b)    In relation to the second application, the Tribunal found that the husband was not a witness of truth and had fabricated his claims based on the inconsistencies in his evidence as well as other reasons detailed in the decision record: see DR[16]. That finding appears to have been open to the Tribunal to make on the basis of the material before it.

(c)    The Tribunal did in fact consider the risk of significant harm to the wife raised by the husband’s claims: see DR[39]-[41]. Importantly, the Tribunal did not accept that the husband was at risk because of his real or imputed political opinion and the incident in which harm was said by the husband to have been experienced by the wife only arose in that context. The Tribunal did not accept any of the factual claims made by the husband for reasons which appear to have been open to the Tribunal on the basis of the materials before it.

(d)    The Tribunal made an express finding at DR[42] that none of the appellants satisfied the criterion in s 36(2)(aa) and any finding made in relation to the criterion in s 36(2)(a) would have had to have been made on the basis of the same factual material. It is therefore inevitable that the Tribunal would have made a decision adverse to the wife had it expressly considered the criterion in s 36(2)(a).

Conclusion

27    The appeal should be dismissed with costs. As the second appellant did not participate in these proceedings and as it appears that the third appellant is a minor, costs should only be awarded against the first appellant.

Associate:    

Dated:    28 September 2020