FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATU16 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 686 |
| Catchwords: MIGRATION LAW – Judicial review of decision affirming refusal of protection visa application – applicant claimed to be a member of the Ahmadi faith who practised as lawyer in Pakistan representing minority groups – ambit of obligation to consider integers of claim – application rejected on credibility grounds – scope of obligation to verify documents or facts put before Tribunal – application for judicial review – grounds of application expressed at high level of generality – Tribunal’s decision considered all of applicant’s claims – no jurisdictional error shown – non-disclosure of documents – procedural fairness – whether documents contained material which negatived the suggestion that such non-disclosure deprived the applicant of the possibility of a successful outcome before Tribunal – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.5H, 36, 65, 414, 418, 420, 422B, 423, 424, 426, 427, 430, 438, 476 |
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- Case
- [2018] FCCA 686
- Decision Date
CaseChat Overview and Summary
The legal issue before the Court was to determine the ambit of the Tribunal's obligation to consider arguments presented by an applicant. Specifically, the Court had to ascertain what constitutes a "substantial and clearly articulated argument" that, if not considered by the Tribunal, would lead to a jurisdictional error. This involved examining the criteria for when an applicant has sufficiently put the Tribunal on notice of a contention or submission that could affect the formation of the satisfaction required under section 65 of the *Migration Act 1958* (Cth).
The Court's reasoning was informed by established case law, including decisions in *CPE15 v Minister for Immigration and Border Protection* [2017] FCA 591, *BDJ15 v Minister for Immigration and Border Protection* [2017] FCA 1281, and *SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship* [2013] FCA 774. These authorities establish that the Tribunal is not required to consider arguments that are not clearly articulated or that do not clearly arise from the material before it. A reviewing court will only find a failure to consider an argument if it is both substantial, meaning it could have materially affected the Tribunal's conclusion, and clearly articulated, meaning the Tribunal was put on notice. The assessment of whether an argument meets these criteria is highly fact-dependent and must be considered in the context of each individual case. The Court emphasised that a conclusion that the Tribunal failed to consider an argument not expressly advanced should not be made lightly.
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Ratio Decidendi
Legal Principle Established
The ambit of the Tribunal’s obligation to consider a clearly articulated argument was considered in detail by Mortimer J in CPE15 v Minister for Immigration and Border Protection [2017] FCA 591, [35]-[42]. Her Honour distilled the principles as follows at [40]:The kind of argument which must have been articulated by an applicant in order for the Tribunal to exceed its jurisdiction by failing to consider it was described by Griffiths J in SZSSC as “a substantial and clearly articulated argument”. In other words, the Tribunal as the decision-maker on the merits must have clearly been put on notice by an applicant of a contention, submission or argument the applicant wished to make in support of a decision in her or his favour on the review. Unless the argument has been “clearly articulated”, the Tribunal would not be put on notice. Unless the argument is “substantial”, a reviewing court cannot be confident or sufficiently confident that the Tribunal’s failure to deal with the argument may have affected or been material to the conclusion it reached. Ultimately the argument put by an applicant in these circumstances must be characterised as capable of affecting the formation of the state of satisfaction required by section 65 of the Migration Act. If it is not so capable, then the Tribunal will not exceed or fail to exercise its jurisdiction in not considering such an argument. (Emphasis added)As Mortimer J explained at [42], “assessments by a reviewing court of whether the identified argument was “substantial and clearly articulated”, and what the Tribunal did or did not do in its reasons in terms of considering it, will be highly fact dependant and will need to be considered against the background of each individual case”. More recently, in BDJ15 v Minister for Immigration and Border Protection [2017] FCA 1281, [49], Charlesworth J, citing MZYTS, emphasised that the Tribunal was required to examine and deal with the claims for asylum that were made by the applicant. Other recent authority suggests that some care is required in the application of the holding in MZYTS: see ACE15 v Minister for Immigration and Border Protection [2017] FCA 1054, [24]-[33] (Bromberg J). In SZSGA v Minister for Immigration, Multicultural Affairs and Citizenship [2013] FCA 774, Robertson J examined the scope of the requirement to deal with claims that had been expressly articulated or squarely or sufficiently raised by the material: [44]-[52]. His Honour endorsed views that: (1) the Tribunal was not required to deal with claims which were not articulated and which did not clearly arise from the material before it; (2) the court insists that on judicial review, a decision of the tribunal must always be considered in light of the basis on which the application was made, not on an entirely different basis which may occur to an applicant, or an applicant’s lawyers, at some later stage in the process; (3) if the claim was not expressly made, it must emerge clearly from the materials before it; (4) a conclusion that the tribunal has failed to consider a claim which is not expressly advanced is not to be made lightly: (citations omitted).