AKS16 v Minister for Immigration and Border Protection
[2019] FCA 791
•7 May 2019
FEDERAL COURT OF AUSTRALIA
AKS16 v Minister for Immigration and Border Protection [2019] FCA 791
Appeal from: AKS16 v Minister for Immigration [2019] FCCA 142 File number: NSD 195 of 2019 Judge: RARES J Date of judgment: 7 May 2019 Catchwords: MIGRATION – application for Constitutional writ relief under Judiciary Act 1903 (Cth) s 39B – whether Administrative Appeals Tribunal committed jurisdictional error – whether Tribunal failed to consider a clearly articulated and distinct claim raised in evidence at Tribunal hearing – whether Tribunal failed to base decision on most recent and up-to-date material Legislation: Migration Act 1958 (Cth) ss 36, 91R Cases cited: AKS16 v Minister for Immigration [2019] FCCA 142
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593
Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173
Date of hearing: 7 May 2019 Registry: New South Wales Division: General Division National Practice Area: Administrative and Constitutional Law and Human Rights Category: Catchwords Number of paragraphs: 36 Counsel for the Appellants: Ms T Baw Solicitor for the Appellants: Sarom Solicitors Counsel for the First Respondent: Mr J Kay Hoyle Solicitor for the First Respondent: Mills Oakley Counsel for the Second Respondent: The second respondent filed a submitting notice save as to costs ORDERS
NSD 195 of 2019 BETWEEN: AKS16
First Appellant
AKU16
Second Appellant
AKV16 (and others named in the Schedule)
Third Appellant
AND: MINISTER FOR IMMIGRATION AND BORDER PROTECTION
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
JUDGE:
RARES J
DATE OF ORDER:
7 MAY 2019
THE COURT ORDERS THAT:
1.The appeal be allowed.
2.The orders made by the Federal Circuit Court on 29 January 2019 be set aside and, in lieu thereof, orders that:
(a)the decision of the second respondent made on 28 January 2016 be set aside;
(b)the application for review be remitted to the second respondent for hearing and determination according to law; and
(c)the first respondent pay the applicants’ costs.
3.The first respondent pay the appellants’ costs of the appeal.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)RARES J:
This is an appeal against a decision of the Federal Circuit Court that dismissed the appellants’ application for Constitutional writ relief against a decision of the Administrative Appeals Tribunal made on 28 January 2016 to affirm the decision of a delegate of the Minister not to grant them protection visas: AKS16 v Minister for Immigration [2019] FCCA 142. The issue now agitated on appeal is in a narrow compass and is confined to whether the Tribunal made a jurisdictional error in failing to carry out its statutory task of review by misconstruing, or not considering, one or more of the appellants’ claims.
Background
The appellants are a family of a husband, wife and their four children, one of whom was born in Australia after their arrival here in late 2013. The appellants are citizens of Fiji. They applied for protection visas on 30 January 2014. The delegate refused to grant the visas to the five eldest appellants on 26 June 2014 and another delegate refused the application of the youngest child (who had been born in April 2014) on 6 July 2015.
The Tribunal found both the husband and wife to be honest and credible witnesses but that their claims did not give rise to protection obligations under s 36(2)(a) or (2)(aa) of the Migration Act 1958 (Cth).
The sole issue on the appeal arises because the Tribunal accepted that the activities of each of the husband and wife while in Australia were genuinely undertaken for reasons other than to obtain a protection visa. That is, it found that it could consider their sur place claims and determine whether their activities in Australia were such as gave rise to a real chance that they or either of them would suffer serious or significant harm were they to return to Fiji for reasons, relevantly, of an actual or imputed political opinion of opposition to the government of Fiji.
The factual context in which the present issue arose was as follows. The Tribunal accepted the husband’s and wife’s evidence that, since arriving in Australia, the husband had attended meetings of a major Fijian opposition party, that was originally called the SDL and is now called the SODELPA (the party) in Griffith, New South Wales, and a protest rally in 2014 in Sydney as well as another linked body called the FDFM. The husband claimed to be a close friend of the president of the party in Griffith and that he attended regular meetings and, in 2014, participated in the protest rally in Sydney when the Fijian Prime Minister, and leader of the 2006 coup, Colonel Frank Bainimarama, came to campaign for the Fijian election while in this country.
The husband and wife claimed that they were photographed at the rally with prominent members of the FDFM and the party, including with the former national president of the FDFM, Suliasi Daunitutu, and the party’s Griffith president, Moapetamo Siganisucuvinaka, as well as in photographs that showed the husband positioned near anti-regime banners. The Tribunal had before it copies of those photographs.
The wife told the Tribunal, and it accepted, that she had posted information about her support of the party on her Facebook page and her image was also in published photographs with the prominent members of both the FDFM and the party. It found that there was no other evidence of her involvement in or concerning any other political activities either in Fiji or Australia.
The Tribunal was originally constituted by one member who ceased to be available after a lengthy hearing in June 2015 at which the husband and wife both gave evidence. After it was reconstituted to comprise the member who gave the decision, the subject of this appeal, the husband and wife again gave further evidence to that member on 7 September 2015.
During the course of the husband giving evidence on 7 September 2015, the member asked him (through an interpreter) about his then claims concerning the photographs. The husband gave the following evidence:
TRIBUNAL: The other issue that I put to you is that from all of what you have said or what appears before me, I may take the view that your involvement in the political organisations has been at quite a low level. While I acknowledge your claim that your having been photographed with some of the leaders that are well known and quite vocal in their opposition – well, as I understand your claim is that that imputes a more active role or a more opinionated position than you may have, and that for that reason you’re more at risk, I may find that given that you haven’t been yourself as vocal as some of these individuals have been, that even though you’ve been photographed, these were events were [sic] many, many people attended and given the relatively small community of Fijians here in Australia, some of those individuals who you’re next to do know many other people. So I may find that that association won’t necessarily place you at any further risk – any great risk, I should say. Is there anything further you would wish to say about that?
INTERPRETER: Disregarding the photographs of the protest, there were photographs taken by Bainimarama’s bodyguard. He took pictures of us during the protests and being very vocal on that particular day. And since that event, that protest, Bainimarama has announced or made a statement that, “All those Fiji citizens living overseas who have expressed anti-government meetings or slogans or anything expressed against the Fiji government, they will be targeted and we will seek them out.”
TRIBUNAL: Is that the article that you most recently provided the tribunal? Is that what you’re referring to?
THE HUSBAND: Yeah, yeah.
INTERPRETER: Yes.
TRIBUNAL: So that’s the one where he stated:
If you encourage sedition, you are committing a serious offence if you urge violence against anyone in Fiji.
INTERPRETER: Yes.
TRIBUNAL: And have you done any of those things?
INTERPRETER: What I’m afraid of is that they have taken photographs of us. Those photos will be with them and they’ll be seeking to identify everyone in that photo.
(emphasis added)
The Tribunal found the following (at par 110) about Mr Bainimarama’s then recent announcement or statement to which the husband referred in that evidence:
In August 2015, Mr Bainimarama was reported to have delivered a speech in which he warned of ‘severe punishment and many years in jail’ for anyone attempting to form a breakaway state or overthrow the government. Mr Bainimarama claimed that ‘high profile’ figures in Australia were plotting to bring down his government and that these figures would be ‘tracked down and brought to justice’. Mr Bainimarama was also reported to have criticised the opposition party SODELPA for not supporting his condemnation of those he claimed were threatening the integrity of Fiji. The opposition party SODELPA responded to Mr Bainaimarama’s [sic] criticism by claiming that his ‘threats over sedition are becoming aggressive and similar in tone to his behaviour before the 2006 coup’. A separate media report on the same speech delivered by Mr Bainimarama in August 2015 claimed that he had also called on Fijians to report anyone to the police who was involved in plotting against the government. (emphasis added)
The footnote at the end of this paragraph read relevantly: “FIJI: PM warns ‘plotters’ and opposition cries ‘hypocrisy’: 2015 Pacific Media Centre 31 August”.
The Tribunal considered the husband’s evidence and claims “holistically”, and took into consideration the submissions that their migration agent made concerning their motivations for their political activities since arriving in this country. It found that the husband and wife had not participated in those activities here solely to strengthen their refugee claims, as I have said, and, therefore, was not required to disregard that conduct in Australia pursuant to the now repealed s 91R(3) of the Act. Relevantly, s 91R provided:
91R Persecution
(1)For the purposes of the application of this Act and the regulations to a particular person, Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol does not apply in relation to persecution for one or more of the reasons mentioned in that Article unless:
(a)that reason is the essential and significant reason, or those reasons are the essential and significant reasons, for the persecution; and
(b) the persecution involves serious harm to the person; and
(c) the persecution involves systematic and discriminatory conduct.
(2)Without limiting what is serious harm for the purposes of paragraph (1)(b), the following are instances of serious harm for the purposes of that paragraph:
(a) a threat to the person’s life or liberty;
(b) significant physical harassment of the person;
(c) significant physical ill-treatment of the person;
(d)significant economic hardship that threatens the person’s capacity to subsist;
(e) denial of access to basic services, where the denial threatens the person’s capacity to subsist;
(f)denial of capacity to earn a livelihood of any kind, where the denial threatens the person’s capacity to subsist.
(3)For the purposes of the application of this Act and the regulations to a particular person:
(a)in determining whether the person has a well-founded fear of being persecuted for one or more of the reasons mentioned in Article 1A(2) of the Refugees Convention as amended by the Refugees Protocol;
disregard any conduct engaged in by the person in Australia unless:
(b)the person satisfies the Minister that the person engaged in the conduct otherwise than for the purpose of strengthening the person’s claim to be a refugee within the meaning of the Refugees Convention as amended by the Refugees Protocol.
(emphasis added)
The Tribunal found that the husband had attended the meetings and rallies of the party as an ordinary member to support it and other pro-democracy organisations here. However, it was not satisfied that the husband had a significant or vocal profile as a result of his involvement in those organisations since his arrival in Australia.
The crucial finding of the Tribunal is contained in par 150 of its reasons, as follows:
150. It has considered his claims and evidence that he attended and was photographed at the 2014 rally to protest against Bainimarama, and accepts that he was present and was photographed alongside other members of the community including Suliasi Daunitutu and Moapetamo Siganisucuvinaka, among others. The Tribunal accepts on the evidence submitted by the applicant’s representative that some of the individuals pictured with him are prominent members of the Fijian community who are well documented as outspoken advocates of democracy and critics of the Bainimarama government. While it accepts that the applicant was photographed with a banner showing a political message critical of the regime and that he may have personal opinions opposing the current government, the Tribunal is not satisfied that this of itself gives him a profile that would place him at risk of serious or significant harm. In reaching this conclusion the Tribunal has taken into consideration information contained in DFAT’s Country Report which indicates the environment for public expression of political opinion has improved since the 2014 election; that criticism of public policies is permitted and occurs. It has also taken into consideration the qualification expressed in DFAT’s report, that some uncertainty remains of the permissible limits on public commentary and its observation that most commentators remain circumspect in any public criticism of the Prime Minister or Attorney General. DFAT’s assessment is that it is high profile public figures and leaders of organisations who might be seen to challenge the government’s authority or undermine its legitimacy who are at risk, and that the risk is of monitoring and harassment by the military and harassment through the court system. The Tribunal does not accept the applicant’s attendance and being photographed at one rally in Australia, membership of SODELPA and attendance at some meetings in Griffith have given him a profile that would attract the interest of the authorities. In any event, the Tribunal also does not consider that monitoring and surveillance of itself would come within the meaning of serious harm for the purposes of s91R(1)(b). For these reasons the Tribunal is not satisfied the applicant will face a real chance of serious or significant harm on the basis of his activities in Australia. (emphasis added)
The Department of Foreign Affairs and Trade’s (DFAT) country report, to which the Tribunal referred to in par 150 was dated 14 April 2015 (the April 2015 DFAT report).
The Tribunal concluded in par 151 that, having considered the husband’s claims, individually and on a cumulative basis, it was not satisfied that there was a real chance that he would face persecution were he to return to Fiji because of his party membership or pro-democracy activities in Australia. Therefore, it rejected his claim under s 36(2)(a) of the Act. It followed that the Tribunal also was not satisfied that there were substantial grounds for believing that there was a real risk that the husband would suffer significant harm for the purposes of s 36(2)(aa) of the Act, and so rejected the claim to complementary protection. The wife’s claim and the four children’s dependent claims failed on the same basis.
The proceeding before the trial judge
The appellants’ submissions that developed during the course of argument in this appeal as to whether the Tribunal had committed a jurisdictional error did not fall with precision within any of their grounds of appeal. However, the trial judge discussed what became the focus of their appeal towards the end of her reasons. The Minister, fairly, raised no objection to my considering this argument and deciding the appeal accordingly.
The trial judge found that the Tribunal had considered the integers of each of the husband’s and wife’s claims and that it had not failed to have regard to cogent evidentiary material of significance to the assessment of their claims in a manner giving rise to jurisdictional error. Her Honour said:
167. The Tribunal considered the integers of (both) adult Applicants’ claims. It did not fail to have regard to cogent evidentiary material of significance to the assessment of the Applicant’s claims (cf SZRKT and Minister for Immigration and Border Protection v SZSRS [2014] FCAFC 16; (2014) 309 ALR 67) in a manner giving rise to jurisdictional error. The absence of specific findings about the claims that the Applicant was photographed by Bainimarama’s bodyguards or seen by his brother is not indicative of such error. The Tribunal had previously referred to this aspect of the Applicant’s claimed (and accepted) participation at the rally. In any event, it found that even if the Applicant did have a profile of interest to the authorities, it did not consider that the resulting possible monitoring and surveillance (the consequences for high profile public figures and leaders of organisations described in the DFAT country report cited) would come within the meaning of serious harm or constitute significant harm. It was not necessary for the Tribunal to expressly refer to the specific claims referred to in particulars (b) and (d) to this ground in its findings, given that these matters were subsumed in this concluding finding at a greater level of generality (see Applicant WAEE at [47]).
168.As to the Fiji Times news article and Mr Bainimarama’s statement, this referred to sedition. The Applicant did not suggest at the hearing that he had been involved in encouraging sedition or violence. The Tribunal referred to other reports of Bainimarama’s statement. It also considered whether the Applicant had a “high profile”, as referred to in the statement. It was open to the Tribunal to rely on other country information as to the consequences for those with a high profile.
169.Contrary to particular (d), and as discussed above, when the Tribunal decision is read fairly and as a whole, it is clear that it considered whether the events at the rally including being photographed with leading dissidents in the manner claimed (as well as being photographed with a banner and other political activities in Australia and holding an opinion opposing the Fijian government) gave the Applicant a profile that would attract the interest of the Fijian authorities or contributed to such a profile or whether, if he had such a profile this put him at risk of serious or significant harm. As indicated, the Tribunal accepted that the Applicant had been photographed as claimed with outspoken critics of the government. Its concluding findings in paragraph 150 were at a sufficient level of generality to include this aspect of the Applicant’s claims (see Applicant WAEE at [46] to [47]).
(emphasis added)
Accordingly, her Honour dismissed the application below with costs.
This appeal
In its reasons in par 150, the Tribunal appeared to have accepted the husband’s evidence generally, including that one of Mr Bainimarama’s bodyguards had recognised and photographed him at the protest rally in 2014, although it did not specifically refer to or consider that evidence in this part of its reasons.
The appellants contended that the Tribunal, first, did not deal with the significance of the fact that the bodyguard had recognised and photographed the husband at the rally and, secondly, had not discussed, in its reasons, the potential significance of the bodyguard’s actions in light of the then very recent August 2015 statement by the Prime Minister (the Prime Minister’s statement) to which it had referred earlier at par 110 of its reasons.
The appellants also submitted that, in dealing with the appellants’ claims about the rally and the photograph, the Tribunal had only relied on the country information in the April 2015 DFAT report that was written some three months prior to the Prime Minister’s statement, even though the husband had made his new claim based on that statement to the Tribunal during the hearing on 7 September 2015 within weeks after the Prime Minister’s statement. They contended that the Tribunal had not considered all of the context in which the husband was photographed and participated in 2014 at the rally. The context included, first, his appearing in photographs in close connection with the two political leaders, and that in one of the photographs one of the leaders had his arm around the husband (which the Tribunal did consider in par 150), but also included the Tribunal’s earlier finding that one of Mr Bainimarama’s bodyguard had recognised the husband at that rally and had photographed him there (which it did not address in par 150). The appellants argued that, based on these circumstances, it could be imputed that the husband was a person who had a high profile, even though that may not, in fact, have been the case.
The appellants argued in the appeal that the Tribunal fell into jurisdictional error because it did not deal expressly with the most up-to-date country information available to it, being the Prime Minister’s statement, that post-dated the April 2015 DFAT report and had occurred immediately preceding its second hearing, in assessing the risk to persons such as the husband, and potentially the wife, to whom an imputed high political profile might be assigned by reason of their apparent close connection, in this country, to leaders of the Fijian opposition political movements. The appellants also argued, as they had before the trial judge, that the Tribunal did not address those matters as integers of their earlier claims if those matters were not a separate claim or claims to fear harm for reasons of imputed political opinion. They claimed that, although the Tribunal had discussed photographs in par 150, its focus was on one photograph, being that in which the husband appeared with a banner showing a political message critical of the regime, to support its finding that such a photograph, of itself, did not give him a profile that would place him at risk of serious or significant harm. The appellants argued that that finding mischaracterised the husband’s claims and did not substantively engage with their claims that an imputed high profile arose from the husband’s proximity and apparent closeness to the two political leaders with whom he was also photographed, together with the bodyguard’s action after recognising the husband and photographing him at the same rally.
The Minister argued that the reasons of the Tribunal, fairly read as a whole and construed with an eye not finely tuned to the perception of error, did not disclose any jurisdictional error. He relied on the principle that a decision-maker need not refer to every piece of evidence or every argument in determining a claim and that a mere failure to mention some evidence could be explicable by reason of findings of greater generality, as French, Sackville and Hely JJ had held in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593 at 604 [45]-[47]. He contended that the Tribunal had reasoned in par 150 that the husband’s activities, including his appearance in photographs and the circumstances in which they were taken had failed to persuade the Tribunal, as it said, that he had a sufficiently high profile to place him at risk of serious or significant harm within the meaning of ss 91R(1)(b) and (2) and 36(2A) of the Act. The Minister argued that the Tribunal had referred earlier, in par 110, to the Prime Minister’s statement, but had made a finding as to the position in Fiji based on the April 2015 DFAT report. He contended that this finding was open to the Tribunal and that the mere fact that it had not mentioned the Prime Minister’s statement in stating its conclusions in par 150 did not mean that the inference should be drawn that the Tribunal had not considered that statement in arriving at its preference for the assessment in the April 2015 DFAT report.
He argued that merely because the Tribunal did not refer to the role of the bodyguard in par 150 that did not mean that the Tribunal had not considered all the photographs and the circumstances in which they were taken. Rather, the Minister said the conclusion that should be drawn was that the Tribunal had found that those circumstances did not give rise to the husband having a sufficiently high profile to be considered as being at risk of serious or significant harm. Next, the Minister argued that, in any event, the Tribunal had found in par 150, based on the April 2015 DFAT report, the nature of the risk in Fiji for persons with a high profile was only a risk “of monitoring and harassment by the military and harassment through the court system”. The Minister submitted that this finding explained the Tribunal’s alternative finding in the last two sentences of par 150, being namely that monitoring and surveillance, of itself, would not come within the meaning of “serious harm” for the purposes of s 91R(1)(b) and, accordingly, the claim could not be made out.
Consideration
In Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at 346 [69] McHugh, Gummow and Hayne JJ pointed out that:
…a court which is asked to review the decision is able to identify the Tribunal’s reasons and the findings it made in reaching that conclusion. The provision entitles a court to infer that any matter not mentioned in the s 430 statement was not considered by the Tribunal to be material [Repatriation Commission v O’Brien (1985) 155 CLR 422 at 446, per Brennan J; Sullivan v Department of Transport (1978) 20 ALR 323 at 348-349, per Deane J; at 353, per Fisher J; cf Fleming v The Queen (1998) 197 CLR 250 at 262-263 [28]-[29]]. This may reveal some basis for judicial review by the Federal Court under Pt 8 of the Act, or by this Court in proceedings brought under s 75(v) of the Constitution. For example, it may reveal that the Tribunal made some error of law of the kind mentioned in s 476(1)(e) of the Act, such as incorrectly applying the law to the facts found by the Tribunal. It may reveal jurisdictional error [Craig v South Australia (1995) 184 CLR 163 at 179]. The Tribunal’s identification of what it considered to be the material questions of fact may demonstrate that it took into account some irrelevant consideration or did not take into account some relevant consideration [Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24]. (emphasis added)
In Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 44-45, Mason J, with whom Gibbs CJ and Dawson J agreed, held that, ordinarily, unless the subject matter, scope and purpose or express provisions of an Act provided otherwise, a decision-maker must base his or her decision on the most recent and accurate information that is to hand. His Honour said at 45:
It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject-matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker. (emphasis added)
Recently, in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at 195-196 at [59]-[60], French CJ, Bell, Keane and Gordon JJ affirmed the principle that the reasons of an administrative decision-maker for a decision under review are not to be construed minutely and finely with an eye keenly attuned to error. They said that such a decision “must be read fairly as a whole”.
During the course of the husband’s evidence on 7 September 2015, he made a distinct claim that he was at risk because he had been photographed in 2014 by Mr Bainimarama’s bodyguard at the rally where he was being very vocal. He also claimed that since that rally, in the weeks before the 7 September 2015 hearing, Mr Bainimarama had made the Prime Minister’s statement that placed him at risk of being targeted and “tracked down and brought to justice”, were he to return to Fiji, because of his being photographed by the bodyguard at the rally.
The Tribunal described its understanding of the nature of the fears, at least, of those in the opposition, based on what the Prime Minister had said, as is apparent from its finding at par 110 (set out in [10] above). The information about the Prime Minister’s statement post-dated the assessment in the DFAT April 2015 report. The information about what the Prime Minister had said in August 2015 consisted of statements by the Prime Minster of the country as to how the Fijian State would deal with “anyone…who was involved in plotting against the government”, “anyone attempting to form a breakaway state or overthrow the government [or to] bring down his government” who would be “tracked down and brought to justice.” He also urged Fijians to report any one “plotting against the government” to the police.
The Tribunal had before it the opposition party’s response to the Prime Minister’s statement that perceived these to be a threat akin to those Mr Bainimarama made prior to the 2006 coup in Fiji. Of course, whether those perceptions were correct or not is not a matter for a court to consider on judicial review. However, the husband raised a claim to fear harm based on the new information in August 2015 during his evidence to the Tribunal on 7 September 2015. The husband connected that fear to his claim that he would have imputed to him a profile of being a “high profile figure” in Australia because he had been photographed, first, in close association with persons protesting against Mr Bainimarama and his government at the rally in 2014 and, secondly, by the bodyguard who had recognised the husband from past associations in Fiji.
The Tribunal made no mention of the Prime Minister’s statement in par 150 when identifying the nature of the harm that the husband claimed might come to the government’s political opponents or those who were perceived as its political opponents. The Tribunal did not give any reasons as to how or why it came, or could have come, to its conclusion of the nature of the harm without reference to the Prime Minister’s statement, in August 2015, that, as the Tribunal said at par 110, “high profile figures” in Australia were plotting to bring down his government and that those figures would be “tracked down and brought to justice”. It nonetheless found that the nature of the risk to high profile political opponents of the government was only as set out in the April 2015 DFAT report, namely “the risk…of monitoring and harassment by the military and harassment through the court system”.
In my opinion, the Tribunal did not consider what the nature and extent of any risk of “being tracked down and brought to justice” might be to a person in the husband’s position who had been photographed by the Prime Minister’s bodyguard in circumstances where the bodyguard recognised him in this country in company with high profile members of opposition parties and opponents of the Prime Minister’s regime. Nor did it consider what the risk was that a person faced:
·who actually had a high profile; or
·who was in the husband’s position and could have had such a profile imputed to him by reason of his association with those opposition leaders at the rally in all of the circumstances.
The Tribunal’s omission of any reference to those matters in the otherwise detailed statements in par 150 supports the inference the Tribunal did not identify the clearly articulated claim that the husband had made during the course of the hearing on 7 September 2015 that he based on the bodyguard’s actions at the rally in 2014 and the recent Prime Minister’s statement. Nor did the Tribunal explain in par 150 of its reasons why, in its consideration of the husband’s position, it had not had regard to (or if it did, why it did not consider to be relevant) the most recent, up-to-date, available information (being the Prime Minister’s statement in August 2015) concerning the risk that a person with an actual or imputed high profile might face in Fiji.
In those circumstances, I am of opinion the Tribunal fell into two jurisdictional errors, namely, first, not considering a clearly articulated claim, and, secondly, not basing its decision on the most recent, up-to-date material before it: Peko-Wallsend 162 CLR at 44-45. It follows that the Tribunal’s decision cannot stand since each of those errors was material: Hossain v Minister for Immigration and Border Protection (2018) 359 ALR 1 at 9 [30] per Kiefel CJ, Gageler and Keane JJ.
The trial judge found that the articles concerning the Prime Minister’s statement did not apply to a person in the husband’s position because he was not a person involved in encouraging sedition or violence. In my view, her Honour’s reasoning in that respect, to the extent that this argument was on all fours with what she was asked to consider, erred. Her reasoning was an evaluation of the merits of the claim, as opposed to a consideration of what the Tribunal actually did as expressed in its reasons. The trial judge erred by failing to ascertain whether the Tribunal carried out its function of review in accordance with law.
Conclusion
For these reasons, the appeal must be allowed and the matter remitted to the Tribunal for determination in accordance with law. The Minister must pay the costs of the appeal and the proceeding below.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate:
Dated: 28 May 2019
SCHEDULE OF PARTIES
NSD 195 of 2019 Appellants
Fourth Appellant:
AKW16
Fifth Appellant:
AKX16
Sixth Appellant:
AKY16
0
14
1