BHS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 459
•27 May 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
BHS19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 459
File number(s): SYG 767 of 2019 Judgment of: JUDGE DRIVER Date of judgment: 27 May 2021 Catchwords: MIGRATION – Review of Immigration Assessment Authority decision – refusal of a protection visa – applicant claiming a fear of harm in Bangladesh – applicant’s fears found not to be well-founded – whether the Authority failed to consider a claim arising on the material before it considered – jurisdictional error established. Legislation: Evidence Act 1995 (Cth), s 144
Migration Act 1958 (Cth), ss 5H, 36, 473CA, 473DD, 477
Cases cited: ADA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 371
AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503
Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44
Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77
Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111
Minister for Immigration and Multicultural Affairs v Sarrazola(No 2) (2001) 107 FCR 184
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28
SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 265
Sellamuthu v Minister for Immigration and Multicultural Affairs(1999) 90 FCR 287
SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214
Number of paragraphs: 59 Date of hearing: 10 March 2021 Place: Sydney Counsel for the Applicant: Mr P Bodisco Solicitors for the Applicant: Abu Legal Counsel for the Respondents: Ms C Ernst Solicitors for the Respondents: HWL Ebsworth ORDERS
SYG 767 of 2019 BETWEEN: BHS19
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERIVCES AND MULTICULTURAL AFFAIRS
First Respondent
IMMIGRATION ASSESSMENT AUTHORITY
Second Respondent
ORDER MADE BY:
JUDGE DRIVER
DATE OF ORDER:
27 MAY 2021
THE COURT ORDERS THAT:
1.A writ of certiorari shall issue removing the record of the Immigration Assessment Authority decision made on 15 February 2019 into this Court for the purpose of quashing it.
2.A writ of mandamus shall issue requiring the Immigration Assessment Authority to redetermine according to law the review referred to it.
REASONS FOR JUDGMENT
JUDGE DRIVER:
INTRODUCTION AND BACKGROUND
The applicant seeks judicial review of a decision of the Immigration Assessment Authority (Authority) made on 15 February 2019. The Authority affirmed a decision of the delegate of the Minister (delegate) not to grant the applicant a protection visa.
The following statement of background facts is derived from submissions filed on behalf of the Minister on 9 March 2021.
The applicant claims to be a stateless individual born in Myanmar and formerly resident in Bangladesh.[1] On 12 October 2016, he lodged an application for a Safe Haven Enterprise Visa (SHEV).[2] On 7 December 2018, the delegate rejected that application.[3] The delegate found that the applicant was neither a refugee (within the meaning of s 5H of the Migration Act 1958 (Cth) (Migration Act)) nor a person to whom Australia owed protection obligations for the purposes of s 36(2)(aa) of the Migration Act. None of the criteria under s 36(2) for the grant of a protection visa having been engaged, the applicant was not eligible for a protection visa.[4]
[1] Court Book (CB) 31, 163
[2] CB 30-58
[3] CB 117
[4] see s 36(1A)(b) of the Migration Act
On 12 December 2018, the matter was referred to the Authority under s 473CA of the Migration Act. On 15 February 2019, the Authority affirmed the decision of the delegate not to grant the applicant a SHEV.[5] The Authority found that the criterion in s 36(2)(a) of the Migration Act was not satisfied because the applicant was not a refugee.[6] The Authority also found that the criterion in s 36(2)(aa) was not met because it was not satisfied there were substantial grounds for believing that, as a necessary and foreseeable consequence of the applicant being removed from Australia, there would be a real risk that he would suffer significant harm.[7]
[5] CB 190
[6] CB 199, [34]
[7] CB 200, [41]
THE CURRENT PROCEEDINGS
The procedural history of this matter is somewhat unusual. The proceedings began with a show cause application filed on 29 March 2019. The applicant was at that time legally represented. The Minister’s solicitors filed a response to that application on 17 April 2019. The application had been filed outside the period prescribed in s 477(1) of the Migration Act but on 29 April 2019, by consent, I ordered that an extension of time be granted up to and including 29 March 2019.
An amended application was filed on 3 March 2021 by the same legal representative who had filed the original application. The following day, by consent, I granted the applicant leave to rely upon it. I also ordered the applicant to pay the Minister’s costs thrown away by reason of the amendment and the grant of leave. I also made other procedural orders.
Counsel was briefed on behalf of the applicant and written submissions were filed on 9 March 2021.
The matter came before me for a final hearing on 10 March 2021. I formed the view during the course of oral argument that the grounds advanced in the amended application would likely fail but that there was an issue not addressed by the parties, namely whether the Authority had erred by not considering an issue arguably arising on the material before it, whether the applicant would be treated as a Rohingya upon return to Bangladesh.
After discussion with counsel for the parties, I made the following orders:
1.The Court notes that the applicant no longer wishes to pursue the amended application subject to leave granted on 4 March 2021, but sought leave to make a further amended application today, which was opposed by the Minister.
2. On reviewing that proposed further amended application, the Court raised an alternative issue of whether the Authority erred by not dealing with a claim not articulated but squarely arising on the material that the applicant could be treated as a Rohingya on return to Bangladesh.
3.The applicant is to file and serve on the respondents written submissions on this issue by 17 March 2021.
4. The first respondent is to file and serve on the applicant written submissions by 24 March 2021.
5. The applicant is to pay the costs of the first respondent thrown away by reason of the abandonment of the amended application and the application for leave to deal with the proposed further amended application.
6. Costs are otherwise reserved.
In light of those orders, counsel for the applicant filed supplementary submissions on 23 March 2021 and counsel for the Minister filed further submissions on 29 March 2021. On the same day, an affidavit by Sophie Verity Lloyd made on 23 March 2021 was filed on behalf of the Minister.
On 31 March 2021, a further amended application was filed on behalf of the applicant which, consistently with my orders, raises the following single ground:
The Assessor has failed to consider an integer of the Applicant’s claims.
Particulars:
The Assessor has failed to consider an integer of the Applicant’s claims that squarely arises on the material, namely that he is or will be perceived a Rohingya from Myanmar who will be returned to Bangladesh.
In addition to the affidavit by Ms Lloyd, I have before me as evidence the court book filed on 29 May 2019.
CONSIDERATION
Did the Authority overlook a claim arising on the material but not articulated?
Applicant’s contentions
The applicant relies upon the following:
(a)the unknown birth origins in Burma of the applicant;
(b)the lack of family contact since he was 2-3 years old;
(c)the period of estrangement from family;
(d)the itinerant existence lived by the applicant in Bangladesh;
(e)his lack of citizenship;
(f)the lack of reliable information about his origins, reliant on unreliable hearsay from third parties; and
(g)a certain barrier to communication during iterations of his claim, including mental health issues and language.
These facts are said to emerge at every iteration of the applicant’s claims.
The applicant submits that the error here was to narrowly limit consideration to the claim the applicant raised as opposed to the claim that squarely arises on the material, namely that he was or could be confused as being a Rohingya from Bangladesh.
Ample material is said to be contained in the submissions forwarded by the applicant’s agent to enliven such a claim.[8]
[8] see for example CB 165
Further, in his Irregular Maritime Interview, the applicant stated that:
(a)he did not know where he was born in Burma;[9]
(b)a photograph of the applicant was contained in the Irregular Maritime Arrival Entry Interview;[10]
(c)he speaks Hindi and Bengali;[11]
(d)he has had no contact with his father since he was three years old;[12]
(e)he has had no contact with his mother since he was two years old;[13] and
(f)in regards to his siblings, he stated that they “went missing the same time [client] was missing from his family”.[14]
[9] CB 3
[10] CB 1
[11] CB 5
[12] CB 6
[13] CB 6
[14] CB 7
Again, this is said to be consistent with the applicant being a Rohingya who was estranged from family and therefore his culture.
In his application for a SHEV, the applicant stated:[15]
When I was travelling to Bangladesh at 3 years of age, with my family, we got separated, and I was lost from my family. For up to 7 years.
[15] CB 31
The applicant does not have travel documents, noting “I do not have any current travel documents as I arrived illegally in Australia”. He went on, “to obtain current travel documents I need to be a legal citizen of a country, which I am not of any”.[16]
[16] CB 39
Again, this is said to be consistent with the applicant being a Rohingya who was estranged from family and therefore his culture.
Further identity information was contained in the delegate’s decision.[17] The delegate held:[18]
The applicant’s knowledge in regard to his origin and background is not based on fact but rather on unreliable and unverifiable assumptions. … I find it equally possible that the applicant may have been an orphan from Bangladesh.
[17] CB 122
[18] CB 124
The applicant’s agent forwarded submissions regarding hostility towards Myanmar refugees based in Bangladesh. Certain barriers to communication were also noted by the agent.[19] Finally, it was noted that the applicant learnt Bengali from his adopted family.[20]
[19] CB 164
[20] CB 181
In the decision, the Authority accepted that the applicant “is a Sunni Muslim of Bengali ethnicity”.[21] Further, it was accepted that the applicant “was born and lived the first few years of his life at an unknown location in Myanmar, that from early childhood he lived in Bangladesh, that as a young child he lost contact with his family”[22].
[21] CB 194, [14]
[22] CB 194, [15]
The applicant submits that, given the breadth of the findings, and the unknown origins of the applicant, it is impossible to reduce the consideration of the applicant’s origins to merely be Bengali as opposed to a Rohingya.
The applicant’s youth at the time of his estrangement from his family is said to mean that by directing itself that the applicant was a Bengali, the Authority has failed to deal with a claim that arises squarely on the material.
A decision-maker’s failure to consider these claims, where such matters were before the Authority, leads to a constructive failure to exercise jurisdiction.[23]
[23] with reference to NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) (2004) 144 FCR 1 at [55]-[58] and Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389at [23], [26]–[27], [86]–[89]
In particular, the decision of NABE is apposite at [55]–[57]:
[55] Although the discussion in S20 did not set any precise limit upon the scope of factual error which may amount to or indicate jurisdictional error there is, in the case of Refugee Review Tribunal decisions, one circumstance in which it is clearly established that the absence of a finding of a relevant fact may amount to jurisdictional error. Where the Tribunal fails to make a finding on ‘a substantial, clearly articulated argument relying upon established facts’ that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction – Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 197 ALR 389 at 394 [24] per Gummow and Callinan JJ, Hayne J agreeing at 408 [95]. Although not expressly so identified in that case, the constructive failure to exercise jurisdiction may be seen as a failure to carry out the review required by the Act. The joint judgment of Gummow and Callinan JJ in Dranichnikov described the task of the Tribunal where the applicant relied upon membership of a particular social group. Their Honours said (at 394 [26]):
‘... the task of the tribunal involves a number of steps. First the tribunal needs to determine whether the group or class to which an applicant claims to belong is capable of constituting a social group for the purposes of the Convention. That determination in part at least involves a question of law. If that question is answered affirmatively, the next question, one of fact, is whether the applicant is a member of that class. There then follow the questions whether the applicant has a fear, whether the fear is well-founded, and if it is, whether it is for a Convention reason.’
In that case the Tribunal should have decided the matter which was put to it by reference to the particular social group defined in the applicant’s submissions, namely entrepreneurs and businessmen in Russia who publicly criticise law enforcement authorities for failing to take action against crime or criminals. Instead it decided whether the applicant’s membership of the group of “businessmen in Russia” was a reason for his persecution:
[56] The observations cited reflect the general principle that the first task of the Tribunal is to determine whether the applicant’s claims are claims of a well-founded fear of persecution for one of the reasons set out in Art 1A(2) of the Refugees Convention. Those are questions of characterisation which involve in part questions of law. The factual questions that follow are, as in Dranichnikov, whether the applicant has a fear of persecution, whether it is well founded and if so whether the apprehended persecution is for a Convention reason. Those logical steps emerge as necessary elements of the Tribunal’s review function by reference to the nature of the decision it is called on to review. The way in which it discharges that function flows from the powers and procedures prescribed for the Tribunal in the conduct of reviews and the use of the word ‘review’.
[57] The nature of the review function was described by Allsop J (with whom Spender J agreed) in Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at 259 [42]:
‘The requirement to review the decision under s 414 of the Act requires the tribunal to consider the claims of the applicant. To make a decision without having considered all the claims is to fail to complete the exercise of jurisdiction embarked on. The claim or claims and its or their component integers are considerations made mandatorily relevant by the Act for consideration ... It is to be distinguished from errant fact finding. The nature and extent of the task of the tribunal revealed by the terms of the Act... make it clear that the tribunal’s statutorily required task is to examine and deal with the claims for asylum made by the applicant.’
The applicant adopted NABE at [68], stating that the review process is inquisitorial rather than adversarial. The Authority, like the Administrative Appeals Tribunal (Tribunal), is required to deal with the case raised by the material or evidence before it.[24] There is authority for the proposition that the Tribunal is not to limit its determination to the “case” articulated by an applicant if evidence and material which it accepts raise a case not articulated.[25] By way of example, if a claim of apprehended persecution is based upon membership of a particular social group, the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant.[26] It has been suggested that the unarticulated claim must be raised “squarely” on the material available to the Tribunal before it has a statutory duty to consider it.[27] The use of the adverb “squarely” does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal.
[24] Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J), cited in NABE AT [58]
[25] Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs(1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ
[26] Minister for Immigration and Multicultural Affairs v Sarrazola(No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing
[27] SDAQ v Minister for Immigration & Multicultural & Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J
The Court in NABE at [59]-[60] continued:
[59] There is some authority which might be taken to suggest that the Tribunal is never required to consider a claim not expressly raised before it. In SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 301, membership of a ‘particular social group’ was put to the Tribunal as a Convention ground for apprehended persecution. The Tribunal was held ‘not obliged to consider whether some other social group might be constructed ...’ at [19]. That decision however turned upon particular circumstances. Its correctness is not in contention here. It does not establish a general rule that the Tribunal, in undertaking a review, can disregard a claim which arises clearly from the materials before it.
[60] In SGBB v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCA 709; (2003) 199 ALR 364 at 368 [17], Selway J referred to the observation by Kirby J in Dranichnikov, at 405, that ‘[t]he function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances’. He also referred to the observation by von Doussa J in SCAL v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCA 548 that ‘[n]either the delegate nor the Tribunal is obliged to consider claims that have not been made’ (at [16]). Selway J however went on to observe in SGBB (at [17]):
‘But this does not mean the application is to be treated as an exercise in 19th Century pleading.’
His Honour noted that the Full Federal Court in Dranichnikov v Minister for immigration and Multicultural Affairs [2000] FCA 1801 at [49] had said:
The Tribunal must, of course, deal with the case raised by the material and evidence before it. An asylum claimant does not have to pick the correct Convention "label" to describe his or her plight, but the Tribunal can only deal with the claims actually made.
His Honour, in the applicant’s view, correctly stated the position when he stated at [18]:
The question, ultimately, is whether the case put by the appellant before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it.
This does not mean that the Tribunal (or the Authority) is only required to deal with claims expressly articulated by the applicant. It is not obliged to deal with claims which are not articulated and which do not clearly arise from the materials before it.
The applicant submits that, in the instant matter, it is clear that a claim as a Rohingya does arise on the material before the Authority, and it should have been considered.
Minister’s contentions
At the hearing of this matter on 10 March 2021, the Court ordered the parties to file submissions on the issue, raised by the Court, of whether the Authority erred by not dealing with a claim that the applicant could be treated as a Rohingya on return to Bangladesh.
In the Minister’s submission, no such issue arose squarely (or at all) on the facts before the Authority. There was nothing in the materials before the Authority to establish the factual premise for such a claim, namely, that Bengali persons born in Myanmar are in Bangladesh assimilated to the Rohingya population and are, by virtue of that fact, treated differentially (and in a manner that would render the applicant a refugee for the purposes of s 36(2)(a) or otherwise engage Australia’s protection obligations within the meaning of s 36(2)(aa)).
In support of that submission, the Minister relies on the affidavit of Ms Lloyd made on 23 March 2021. Annexed to that affidavit are the following documents, which were before the Authority:
(a)Department of Foreign Affairs and Trade (DFAT), “Country Information Report Bangladesh”, dated 2 February 2018[28] (Annexure A to the affidavit) (DFAT Report); and
(b)European Asylum Support Office (EASO), “Country of Origin Information Report: Bangladesh Country Overview”[29] (Annexure B to the affidavit) (EASO Report).
[28] referred to at CB 192, footnote 1
[29] also referred to at CB 192, footnote 1
Legal principles
It may be accepted that the Authority was not limited, in the discharge of its functions under Part 7AA of the Migration Act, to considering the case articulated by the applicant. The Authority is required to consider the case articulated by an applicant as well as any “unarticulated claim which is nevertheless raised clearly or squarely on the material before that review body”.[30]
[30] Minister for Immigration and Border Protection v BBS16 (2017) 257 FCR 111 at [79] (Kenny, Tracey and Griffiths JJ), citing NABE at [58]-[61] (Black CJ, French and Selway JJ)
The Minister submits that a finding that a claim “clearly emerges” is not to be made lightly. It is not enough that a claim might be said to arise from the materials before the Authority.[31] To clearly emerge from the materials, the claim must be based on “established facts”.[32] It must be “apparent on the face of the material” and must “not depend for its exposure on constructive or creative activity”.[33]
[31] NABE at [68]; AYY17 v Minister for Immigration and Border Protection (2018) 261 FCR 503 at [18] (Collier, McKerracher and Banks‑Smith JJ)
[32] SZUTM v Minister for Immigration and Border Protection (2016) 241 FCR 214 at [37]-[38] (Markovic J), cited in AYY17 at [18]
[33] NABE at [58]
A court will be more willing to identify a matter as squarely arising where an applicant was unrepresented before the Authority.[34]
[34] Kasupene v Minister for Immigration and Citizenship (2008) 49 AAR 77 at [21] (Flick J), cited in AYY17 at [18]
The Minister contends that the question of whether the applicant might be “treated as” a Rohingya did not squarely arise on the material before the Authority.
First, there was no question of the applicant self-identifying as Rohingya. The Authority found, on the basis of the applicant’s oral evidence, that the applicant was “a Sunni Muslim of Bengali ethnicity”.[35] As the Authority observed, neither the applicant “nor his representative has claimed that he or his family is Rohingya”.[36] On the applicant’s own account, he moved to Bangladesh when he was three years old, and was informally adopted by a Bangladeshi Muslim family.[37] The Authority found that although the applicant claimed to have spent the first few years of his life in Myanmar, there was no evidence to suggest that the applicant’s country of residence was other than Bangladesh.[38]
[35] CB 194, [14]
[36] CB 192, [9]
[37] CB 193, [11]
[38] CB 195, [18]
Secondly, there are said to have been no established facts from which it would be concluded that the applicant would be treated as though he were Rohingya. In particular, it was no part of the applicant’s account of the harm he had experienced or feared that he had been, or would be, treated as such. The applicant’s submissions to the Authority, advanced by his migration agent, stated that he feared persecution because he did “not hold Bangladeshi citizenship status and he originally came from a Myanmar family”.[39] Those submissions referred differentially to “Rohingya and Myanmar” people,[40] yet made no suggestion that the applicant fell within the former category. Rather, they referred in a generalised way to the “animosity between the Bangladeshi and Myanmar people” as a result of the recent influx of Rohingya from Myanmar.[41]
[39] CB 165
[40] see CB 165, first full paragraph
[41] CB 165
Given that the submissions directly engaged with the situation of the Rohingya in Bangladesh, it may be inferred that, had the applicant experienced or feared harm on the basis of an (incorrect) assumption by others that he was Rohingya, he would have given an account of such experiences or fear. Instead, the applicant’s account of the harm he had experienced by virtue of having been born in Myanmar rose no higher than an account, not raised before the delegate, but advanced by way of a submission made by his migration agent to the Authority, of having been threatened for “taking the job of a Bangladeshi man and taking the money which belongs to a Bangladeshi”.[42]
[42] CB 165
Thirdly, and in any event, insofar as the applicant relies on his account of having been threatened for taking the job of a Bangladeshi man, that was information to which the Authority concluded it was precluded from having regard by reason of s 473DD of the Migration Act. The Authority was not satisfied for the purposes of s 473DD(b) that this information could not have been provided to the Minister or that there were exceptional circumstances to justify considering the information.[43] In circumstances where no challenge has been brought to the Authority’s decision not to consider the information, the Court would not have regard to it in assessing whether a claim squarely arose from the available material. To do so would be inconsistent with the statutory prohibition in s 473DD.
[43] CB 192 [8]
Fourthly, there is said to have been nothing in the country information that was before the Authority to indicate a practice of Bengali persons born in Myanmar being “treated as” Rohingya merely by virtue of having been born in Myanmar. To the contrary, such information as was available pointed against the suggestion that the applicant would be treated as Rohingya merely by virtue of having been born in Myanmar. In particular, the DFAT Report:
(a)identifies the term Rohingya as applying to persons “who identify as ‘Rohingya”’ (emphasis added).[44] This tends to suggest that self-identification is an important part of a person’s status as a Rohingya. Similar, the EASO Report states at page 77, quoting a report of the US Department of State, “the name Rohingya is used in reference to a group that self-identifies as belonging to an ethnic group defined by religious [Muslim], linguistic and other ethnic features”. So far as the reference to linguistic features is concerned, it may be noted that the applicant submitted that the first language he learned to speak was a regional dialect of Bengali from the Golapgonji district in Bangladesh;[45]
(b)describes the Rohingya as a “minority Muslim population from Myanmar’s Rakhine state who identify as ‘Rohingya’”.[46] Similarly, the intergovernmental agreement between Bangladesh and Myanmar that is referred to in [3.14] is titled an “Arrangement on Return of Displaced Persons from Rakhine State”. The applicant gave no evidence of having been born in the Rakhine state. Instead, his evidence was that he was born in an “unknown location” in Myanmar.[47] There was nothing in the materials to suggest that the applicant had any connection at all to that part of Myanmar in which the Rohingya population resides;
(c)states that the “overwhelming majority of both new and previous Rohingya arrivals are located in Cox’s Bazar district” in Bangladesh, “adjacent to the Myanmar border”.[48] There was no evidence of the applicant having lived in this area or having associated with persons therefrom. Instead, the applicant’s evidence was that, upon arriving in Bangladesh, he was informally adopted by a Bangladeshi Muslim family in the Barisal district in southern Bangladesh.[49] He also gave evidence of having moved to the Gopalganj district and Dhaka.[50] None of those areas are proximate to Cox’s Bazar or the Myanmar border generally; and
(d)indicates that, regardless of their arrival date in Bangladesh, Rohingya are not legally entitled to work.[51] That is consistent with the reference in the EASO Report to Rohingya as being unable to access work in Bangladesh.[52] It was no part of the applicant’s claim that he was not entitled to work in Bangladesh. He gave no account, and there was no other evidence, to that effect, notwithstanding that a central part of the applicant’s claim concerned the limited employment opportunities available to him in Bangladesh.[53]
[44] page 11 [3.11]
[45] CB 181
[46] page 11 [3.11]
[47] CB 193 [11]
[48] page 12 [3.14]
[49] CB 193 [11]
[50] CB 193 [11]
[51] page 12 [3.15]
[52] page 79 [20.4]
[53] addressed by the Authority at CB 195-197 [21]-[28], CB 199 [37]
The Minister submits that, having regard to the foregoing, there was nothing in the material before the Authority to suggest that, notwithstanding the applicant did not identify as Rohingya, he would in Bangladesh be assimilated to the Rohingya population. To the contrary, such evidence as was available tended to suggest that the applicant’s experiences were qualitatively different from those of the Rohingya population in Bangladesh.
The Minister submits that the evidence before the Authority fell well short of supplying a foundation from which a claim squarely or clearly arose that the applicant would, if returned to Bangladesh, be treated as though he were Rohingya. Nor was the possibility of such treatment a matter of common knowledge within the meaning of s 144(1) of the Evidence Act 1995 (Cth).
The Minister contends that the foregoing analysis is a complete answer to an issue not raised by the Court, but advanced by the applicant in his written submissions: namely, that the evidence squarely gave rise to a claim that he actually was Rohingya. For the same reasons there were no established facts from which it clearly emerged that he could be treated as Rohingya, there were no facts from which it clearly emerged that he actually was Rohingya.
The tenor of the applicant’s submissions is that the theoretical possibility of the applicant’s being Rohingya could not be excluded, characterising the evidence as not inconsistent with his being Rohingya, and referring to the impossibility of excluding the possibility that he was Rohingya.
The Minister submits that that submission falls well short of establishing the evidentiary foundation necessary to satisfy the “squarely arising” test. It is contradicted by the well‑established principles, namely that it is not enough that a claim might be said to arise from the materials before the Authority,[54] that a claim must be based on “established facts”,[55] and that it must be “apparent on the face of the material”.[56] The applicant’s submission is said to stretch the notion of a claim squarely arising well beyond its doctrinal limits, and should not be accepted.
[54] NABE at [68]
[55] SZUTM at [37]‑[38]
[56] NABE at [58]
Resolution
The facts as found by the Authority are that the applicant is a man of Bengali ethnicity born at an unknown location in Myanmar and taken to Bangladesh as a child. He is stateless and would be returning to Bangladesh as his country of former habitual residence, having been born in Myanmar.
As found by the Authority at [9], the applicant did not claim that he or his family are Rohingya. It may be accepted that the applicant does not himself identify as a Rohingya but the question I posed to the parties at the trial was whether he would nevertheless be treated by the authorities or others in Bangladesh as if he were a Rohingya. In other words, the question is not whether the applicant has the status of a Rohingya but rather whether he would have that status imputed to him.
In ADA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[57] Allsop CJ stated at [21]:
The Tribunal is bound to address claims for protection arising from the facts as articulated by the applicant or as fairly arising from the material as presented: ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 44 at [71].
[57] [2021] FCA 371
His Honour there referred to the statement of the Full Federal Court in ESQ18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[58]at [71] as follows:
In our view, it was not necessary for the appellant to expressly adopt or embrace the unarticulated claim to give rise to an obligation on the part of the Authority to review that claim. The appellant was entitled to expect that the delegate’s reasons would form part of the review material and that all issues would be appropriately considered by the Authority, given the claim clearly emerged from the circumstances and characteristics of the appellant. Further, the appellant made clear that the submissions were not intended to be an exhaustive critique of the delegate’s reasons and, given the page restrictions, invited the Authority to raise any additional matters it considered relevant. Accordingly, the unarticulated claim remained “extant”.
[58] [2021] FCAFC 44
In my view, using the terminology adopted by the Chief Justice in ADA18, an unarticulated claim fairly arose from the material before the Authority that the status of being a Rohingya might be imputed to the applicant on return to Bangladesh by the Bangladeshi authorities or others in Bangladesh who might become aware of his background and circumstances. The claim was not considered by the delegate and remained extant at the time of the review by the Authority.
The unarticulated claim can be linked to submissions made on the applicant’s behalf to the Authority, was not extreme or fanciful and, having regard to recent country information concerning Bangladesh, was brought into sharper relief because of the huge influx of Rohingya from Myanmar.
Further, if the Authority had adverted to the unarticulated claim, it might well have taken a different view in relation to the new information proffered to it in the submission dated 28 December 2018. That new information in turn might well have had some impact upon the consideration of the unarticulated claim by the Authority.
I find that the Authority did fall into error by overlooking an unarticulated claim which fairly arose from the material either before the Authority or proffered to it that the applicant might have imputed to him the status of a Rohingya in Bangladesh. Further, the error goes to the Authority’s jurisdiction as the review was not complete in the absence of the consideration by the Authority of the claim.
CONCLUSION
I conclude that the applicant has established that the decision of the Authority is affected by jurisdictional error. He should receive relief in the form of the constitutional writs of certiorari and mandamus. I will so order.
I will hear the parties as to costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Driver. Associate:
Dated: 27 May 2021
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