BRGAE of 2006 v Minister for Immigration - [2008] FMCA 182

FEDERAL MAGISTRATES COURT OF AUSTRALIA

BRGAE OF 2006 & ANOR v MINISTER FOR IMMIGRATION & ANOR

[2008] FMCA 182

MIGRATION – Review of decision – Refugee Review Tribunal – whether jurisdictional error – citizens of India of Sikh faith – whether well grounded fear of persecution – need to consider arguments not advanced before Tribunal.

Migration Act 1958 (Cth), ss.36, 65(1), 424A, 441A

SZEEU v Minister for Immigration Multicultural and Indigenous Affairs [2006] FCAFC 2
S157/2002 v Commonwealth of Australia (2003) 211 CLR 476
SZBYR v Minister for Immigration and Citizenship [2007] HCA 26
SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24
NAWZ v Minister for Immigration & Multicultural Affairs [2008] FCA 6
Chan v Minister for Immigration (1990) 169 CLR 279
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155
SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90
Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287
Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594
Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85
MIMIA v VFAY; MIMIA v SHBB [2003] FCAFC 191
Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28
Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38
Ramirez v MIMA (2000) 176 ALR 514
Gnanasambanther v MIMA [2000] FCA 1911
Abebe v The Commonwealth (1999) 162 ALR 1
NABE v MIMIA (2004) 144 FCR 1
Dranichnikov v MIMIA (2003) 77 ALJR 1088
Re MIMIA; ex parte Applicant S20/2002 (2003) 77 ALJR 1165
Htun v MIMIA (2001) 194 ALR 224
Chan v MIMIA (2000) 106 FCR 157
SDAQ v MIMIA (2003) 129 FCR 137
SGBB v MIMIA (2003) 199 ALR 364

Applicants:

BRGAE of 2006 & BRGAF of 2006

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

BRG 673 of 2006

Judgment of:

Wilson FM

Hearing date:

22 November 2006

Date of Last Submission:

22 November 2006

Delivered at:

Brisbane

Delivered on:

22 February 2008

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

In person (by interpreter)

Counsel for the first and second Respondents:

Ms Nitra Kidson

Solicitors for the first and second Respondents:

Clayton Utz

ORDERS

The application filed 19 September 2006 be dismissed.
The applicants shall pay the respondent’s costs of and incidental to the application to be taxed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
BRISBANE

BRG 673 of 2006

BRGAE of 2006 & BRGAF of 2006

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

The applicants, husband and wife, are citizens of India.
By applications made on 24 April 2002, each of the applicants applied for a protection (Class XA) visa. The applicants contend that they are refugees who fear persecution in India because of their support of and membership of the All India Sikh Students Federation. The female applicant’s claim is largely, although not entirely, dependent on the male applicant’s claim. The female applicant claims that she too was a member of the Federation, but primarily relies on her husband’s fear of persecution as supporting her claim to refugee status.
In his application, the male applicant stated:
i)That he was of the Sikh religion;
ii)That he departed India on 25 March 2002 and arrived in Australia the next day;
iii)He initially obtained a visitor’s visa on 22 April 2002;
iv)“I seek the protection of the convention as I claim I have a well founded fear that if I were to return to India I would be persecuted on the grounds of:
· My involvement and active support of the All India Sikh Students Federation (AISSF)
· Police suspicions of my involvement at high level although my involvement was organising rallies, helping put up posters”
v)He was an active supporter of the AISSF having joined in 1985;
vi)He claims to have been arrested and tortured by the Punjab police in the late 1980s and 1990s due to his working with the federation. The applicant says he was detained and heavily tortured;
vii)The Indian police will harm and mistreat him as they have done on previous occasions. He states that on his return to India he will be killed;
viii)He has no faith in the Indian police;
ix)He does not think the authorities of India can or will protect him when they were the ones that committed vicious and hideous beatings and torture on him in the past.
The female applicant stated, in her application:
i)That she has been involved in and her husband is an active supporter of the AISSF;
ii)She was tortured by the Punjab police. The police would frequently come to her house and take her to police stations and beat her up;
iii)She does not believe the Indian authorities will protect her.
The Minister’s delegate refused the applications for protection visas, by determination dated 22 August 2002. The applicants sought review by the Refugee Review Tribunal.
By letter dated 19 August 2003, the Tribunal sought further information from the applicants, primarily in the nature of further evidence supporting the claims made in the applications referred to above, but also to explain why the applicants delayed in seeking protection. The letter included:
“Independent information available to the Tribunal indicates that India is a longstanding parliamentary democracy, with an independent judiciary, a broad range of democratic institutions and a comprehensive constitutional framework for the protection of human rights. The independent information also indicates that it is not aware of any politically active Sikhs still at risk of political persecution in the Punjab or India as a whole. Explain then, why you are in fear of persecution. Explain why you did not seek redress for the illegal arrests and torture which you claim to have experienced.”
The applicants responded to this letter on 10 September 2003. Documents were provided. The male applicant related an incident on 12 November 2001 when he was arrested, beaten and tortured for three days. The male applicant claims he was hospitalised for 23 days.
The Tribunal conducted a hearing on 6 November 2003 at which the applicants were represented by a migration agent.
On 3 February 2004 the Tribunal, constituted by Ms Wendy Barron, handed down its decision dated 12 January 2004. The Tribunal decided that the applicants were not entitled to a protection visa and affirmed the decision of the Minister’s delegate.
On 1 May 2006, the Federal Magistrates Court at Sydney, by consent, set aside the decision of the tribunal and remitted the matter to be decided according to law. The court’s order contains the following note:
“The Court notes that the first respondent accepts that the application must be allowed for the reasons contained in the Full Court decision of SZEEU v Minister for Immigration Multicultural and Indigenous Affairs [2006] FCAFC 2”
The Tribunal conducted another hearing on 17 July 2006 and the applicants were again represented by a migration agent.
In its decision of 25 July 2006, the Tribunal constituted by Mr Rodney Inder affirmed the decision of the delegate not to grant protection visas to the applicants.
In its reasons, the Tribunal:
i)Stated, at page 4, that it had before it the Department’s file relating to the applicants, and had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources;
ii)Took its summary of the facts from the earlier Tribunal decision;
iii)Referred to the request for further information, referred to at paragraph 6 above, and to the applicants’ response, referred to at paragraph 7 above;
iv)Referred to the male applicant’s oral evidence before it (at pages 7ff);
v)Stated that it put certain apparent contradictions in his evidence to the male applicant for his comment at pages 8 – 9, 10);
vi)Recorded, at page 10, offering the applicants’ agent a week to put in a submission in response to matters put to the applicants at the hearing;
vii)Records that by letter dated 10 December 2003 the agent stated:
“We refer to the above matter and confirm that we have received the copies of all the documents under the Freedom of Information Act. After perusing the documents, we are of the opinion that no useful purpose will be served by making any further written submissions. We request the honourable Tribunal to make its decision.”
viii)At page 12 records:
“The Tribunal asked the Applicant to tell it why he believed he was a refugee. In reply, the Applicant claimed because he helped and supported the AISSF, his life was in danger. The Tribunal asked for more details about his claims and he replied that he used to support the AISSF so the government suspected him of being a terrorist, but he was just a hardworking person was not a terrorist. The Tribunal asked the Applicant for a third time why he thought he was a refugee and what his claims were, and he replied he wanted to educate children by doing hard work which he used to do in India and was also working hard in Australia and was hoping to educate his children to a higher level than they had been able to achieve in the past. Asked again if there were any other reasons why he thought he was a refugee, having noted that the definition of which had been explained at the beginning of the hearing, the Applicant claimed that there was too much poverty in India and his children had no future there but in Australia he can educate his children and get a better life for them”
ix)Accepted that the applicants were nationals of the Republic of India;
x)Concluded (at page 15) that, based on the applicants’ responses to questions asked of them, it was not able to be satisfied that they had a well-founded fear of serious harm amounting to persecution for a Convention reason;
xi)Found that the male applicant’s provision of support for the AISSF was very general support, his activities very limited in nature and not those of a party activist;
xii)Accepted (at page 16) the male applicant’s claims made at the second hearing, notwithstanding inconsistencies between those claims made at the first and second hearings. It accepted that the male applicants has been a supporter of the AISSF and had undertaken some limited activities on its behalf; that he was arrested and abused by members of the Punjab Police and was beaten and tortured in November 2001;
xiii)Was satisfied that if the applicants had a well founded fear of persecution as claimed they would have left India earlier than they did;
xiv)Concluded (at page 17) that while it accepted that the male applicant was involved in a limited way with the AISSF prior to his departure from India, it was not able to be satisfied that the applicants have a well founded fear of serious harm amounting to persecution for a Convention reason on this basis;
xv)Given its earlier findings about his limited political involvement and profile was not satisfied that the male applicant’s troubles with the police were related to any Convention reason;
xvi)Noted that the applicants had not submitted any recent country information indicating that Sikhs are being persecuted in India or are experiencing Convention related difficulties;
xvii)Stated, at page 17:
“In short, and given all the above, the Tribunal has not been able to satisfy itself that the Applicants have a well founded fear of serious harm amounting to persecution for a Convention reason because of their previous association with the AISSF, their political opinion, because they are Sikhs or due to their religion, or for any other Convention related reason”
xviii)Concluded (at page 18) that the new claims made by the applicants at the second hearing are essentially humanitarian in nature and not Convention related.
The applicants’ entitlement to a protection visa under s.36(2) of the Act depends on their being persons to whom Australia owes protection obligations, namely those who have a “well founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion” within the meaning of Art 1A(2) of the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 as amended by the Protocol relating to the Status of refugees done at New York on 31 January 1967.
The Tribunal’s decision is a privative clause decision, but can be reviewed for jurisdictional error: S157/2002 v Commonwealth of Australia (2003) 211 CLR 476.
The applicants allege jurisdictional error on the part of the Refugee Review Tribunal which handed down its decision on 8 August 2006.
The grounds relied upon by the applicants are:
i)If the applicant is deported from Australia he will be at risk of suffering persecution within the meaning of the 1951 Convention Relating to the Status of Refugees and the 1967 Protocol relating to the Status of Refugees (Ground 1);
ii)The Tribunal relied on the delegate’s adverse information without giving the applicants opportunity to comment upon the information given to the delegate and adversely used against the applicants pursuant to s.424A Migration Act 1958 (“the Act”) (Ground 2);
iii)The Tribunal misapprehended the law or erred in law in stating that there ought to have been a Convention reason in particular circumstances in which the applicant suffered harm instead of directing its enquiries as effective State protection (Ground 3);
iv)The Tribunal’s decision involved jurisdictional error affecting the decision in that it failed to consider effective State protection in India in respect of the applicants’ social class (Ground 4);
v)The Tribunal has taken an unduly narrow view of the Convention reason in respect of the applicants’ claim and erred in law in finding that their claims did not come within a convention reason (Ground 5);
vi)The Tribunal applied the wrong test in considering whether discrimination amounted to persecution (Ground 6).
Ground 1 is not a ground of review at all. It states a factual conclusion. It does not identify any jurisdictional error on the part of the Tribunal. In my view, the Tribunal addressed the correct issue, namely whether the applicants were persons to whom Australia owed protection obligations under the Convention.
Section 424A of the Act provides:
(1)     Subject to subsection (3), the Tribunal must:
(a)     give to the applicant, in the way that the Tribunal considers             appropriate in the circumstances, particulars of any   information that the Tribunal considers would be the reason,          or a part of the reason, for affirming the decision that is   under review; and
(b)     ensure, as far as is reasonably practicable, that the   applicant understands why it is relevant to the review; and
(c) invite the applicant to comment on it.
(2)     The information and invitation must be given to the   applicant:
(a)     except where paragraph (b) applies–by one of the methods              specified in section 441A; or
(b)     if the applicant is in immigration detention–by a method                  prescribed for the purposes of giving documents to such a                  person.
(3)     This section does not apply to information:
(a)     that is not specifically about the applicant or another person          and is just about a class of persons of which the applicant                  or other person is a member; or
(b)     that the applicant gave for the purpose of the application;               or
(c) that is non‑disclosable information.
The High Court of Australia has recently reconsidered the obligations imposed by this section in SZBYR v Minister for Immigration and Citizenship [2007] HCA 26. In that case neither party sought to re-open the question of construction given to s.424A by the majority of the Court in SAAP v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 24.
It was argued in SZBYR that s.424A required the Tribunal to put inconsistencies in the evidence that it intended to rely upon to the applicants for their response. At [15] the majority justices confined the obligation under s.424A to the provision of “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”. It is necessary to identify the reason for the decision. At [17] the majority justices noted that the reason for affirming a decision that is under review is a matter that depends upon the criteria for the making of that decision in the first place. In that case, as in the present, the appropriate criterion was to be found in s.36(1) of the Act.
The majority justices dealt with disbelief of the applicant’s evidence as follows, at [18]:
“Thirdly and conversely, if the reason why the Tribunal affirmed the decision under review was the Tribunal’s disbelief of the appellants’ evidence arising from inconsistencies therein, it is difficult to see how such disbelief could be characterised as constituting “information” within the meaning of par (a) of s 424A(1). Again, if the Tribunal affirmed the decision because even the best view of the appellants’ evidence failed to disclose a Convention nexus, it is hard to see how such a failure can constitute “information”. Finn and Stone JJ correctly observed in VAF v Minister for Immigration and Multicultural and Indigenous Affairs that the word “information”…
“does not encompass the tribunal’s subjective appraisals, thought processes or determinations… nor does it extend to identified gaps, defects or lack of detail or specificity in evidence or to conclusions arrived at by the tribunal in weighing up the evidence by reference to those gaps, etc”.
If the contrary were true, s 424A would in effect oblige the Tribunal to give advance written notice not merely of its reasons but of each step in its prospective reasoning process. However broadly “information” be defined, its meaning in this context is related to the existence of evidentiary material or documentation, not the existence of doubts, inconsistencies or the absence of evidence. The appellants were thus correct to concede that the relevant “information” was not to be found in inconsistencies or disbelief, as opposed to the text of the statutory declaration itself.”
Their Honours concluded at [21] that the effect of s.424A is not to create a back door route to a merits review in the federal courts of credibility findings made by the Tribunal.
More recently in NAWZ v Minister for Immigration & Multicultural Affairs [2008] FCA 6 Madgwick J (constituting the Full Court) accepted at [25] that any negative inference that the Tribunal may have drawn from information supplied by the appellant after the Tribunal hearing could not be considered “information” for the purposes of s.424A. Information in this context is “knowledge of relevant facts or circumstances communicated to, or received by, the Tribunal”: SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 at [215], and not “the Tribunal’s subjective appraisals, thought processes or determinations”: SZEEU 150 FCR at [206].
The applicants say, in their written submissions:
“Although some matters were raised, the Applicants submit that they were not given any opportunity to comment on many matters in the material before the delegate and before the first Tribunal at the hearing or at any time thereafter by the second Tribunal. . . In particular the employment of the applicants in particular the first applicant is critical to the decision. The information is used to impeach the credit (see page 8 of the decision) where the member talks of “contradictions” at page 8.3.”

Counsel for the respondent put the principles regarding the operation of s. 424A correctly in submissions:
The principles regarding the operation of s.424A are now settled, and can be summarised as follows:
a) The section does not require the Tribunal to invite an applicant to comment on any information which the Tribunal might have regard to in the process of its decision making. The obligation only relates to information which the Tribunal may rely upon to form an adverse view of the applicant’s case (Section 424A(1)(a) only applies to “particulars of any information that the Tribunal considers would be the reason, or part of the reason, for affirming the decision that is under review”);
b) The words “the application” within s.424A(3)(b) mean the application for review by the Tribunal, and do not include information given by the applicant for the purposes of the initial visa application to the Department (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2);
c) If s.424A(1) applies, the obligation is not satisfied by putting the information orally to the applicant in the course of the Tribunal hearing. It must be put in writing (SAAP v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 215 ALR 162); and
d) A breach of the section is established whether or not failure to provide the information would result in any unfairness, as long as the information formed the reason, or part of the reason, for affirming the decision (SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2 at [14]-[15]).
I accept the respondent’s submission that the ground relied on is misconceived. The passage relied on, at page 8 of the Tribunal’s reasons, is a summary of what the male applicant told the earlier Tribunal at its hearing referred to at paragraph [8] above. The Tribunal member, against whom this application is brought, has not relied on this alleged discrepancy in the male applicant’s evidence. It forms no part of the Tribunal’s findings and reasons. More importantly, the Tribunal expressly stated, at page 16 of its reasons, that notwithstanding inconsistencies, it accepted the male applicant’s claims. The Tribunal therefore did not use the inconsistency referred to at page 8 of its reasons to impeach the credit of the male applicant.
The factors relied upon by the Tribunal for finding that the applicants did not have a well founded fear of persecution were:
i)The male applicant’s limited involvement with AISSF;
ii)The delayed and lawful departure of the applicants from India;
iii)The lack of connection between police matters now affecting the male applicant and his association with AISSF;
iv)The lack of any evidence that Sikhs are being persecuted in India.
These matters were expressly raised with the applicants in the correspondence to which I have already referred. The Tribunal was not obliged to put its thought processes to the applicants for their comment. This ground of review must be rejected.
Ground 3 focuses on the reason referred to at paragraph 28(iv) above. The applicants submit that the Tribunal did not address the availability and adequacy of effective State protection.
In Chan v Minister for Immigration (1990) 169 CLR 279 the court held that well founded fear of persecution had both a subjective and an objective requirement. There must be a sufficient foundation for the fear (at 396). It is well founded if there is a real chance that the refugee will be persecuted if he returns to his country of nationality (389, 398, 407, and 429). Whether an applicant has a fear of persecution and whether that fear is well founded must be determined upon the facts as they exist at the date when a determination is required.
In Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 it was held that an applicant for refugee status must show a well founded fear of persecution. The fear must have a real substantial basis and not be merely assumed or based on mere speculation. However, the applicant need not show that persecution is more likely than not to eventuate. A real chance of persecution will suffice. In determining whether there is a real chance that an event will occur for a particular reason in the future, the degree of probability that similar events have or have not occurred in the past for particular reasons is relevant.
In Guo at 572 their Honours said that conjecture or surmise has no part to play in determining whether a fear is well founded. A fear is well founded when there is a real substantial basis for it. Their Honours said:
“But no fear can be well founded for the purpose of the Convention unless the evidence indicates a real ground for believing that the applicant for refugee status is at risk of persecution. A fear of persecution is not well founded if it is merely assumed or if it is mere speculation.”
In my view, the Tribunal directed itself to the correct question, identified at paragraph [18] above. From its conclusions as to whether the applicants could have a well grounded fear of persecution it followed that the applicants were not persons to whom Convention obligations were owed.
Any challenge to the Tribunal’s conclusion that the applicants did not have a well grounded fear of persecution amounts to a merits review, which is impermissible in these proceedings.
It is difficult to understand Ground 4. The Tribunal did not expressly consider whether the applicants’ social class was susceptible to persecution. The applicants do not identify their “social class”. From the evidence accepted by the Tribunal the applicants belonged to a poor, rural Sikh class living in the Punjab. The applicants do not identify why the Tribunal was required to address whether there was State protection available for this group. The Tribunal did conclude that there was no well founded fear of persecution for Sikhs generally, or in the Punjab.
The Tribunal was only required to consider claims articulated by the applicants.
Wilcox J in Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169-70 made well known observations to the effect that it is no part of the duty of a decision maker to make the applicant’s case for him, but in a case where it is obvious that “material is readily available which is certainly relevant to the decision to be made”, to proceed to a decision without making any attempt to obtain that information may be so unreasonable as to vitiate the exercise of the decision making power.
The Full Federal Court in SBBA v Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 90 said at [8]:
“It is well established that all substantive issues raised by the evidence before the Tribunal must be considered even if an applicant does not articulate all such claims; Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 294; and Kalala v Minister for Immigration and Multicultural Affairs [2001] FCA 1594 at [24]. It is, however, no part of the Tribunal's function `to make good a case, which the applicant has not articulated, only because there is some evidence of elements of a claim.' Parra v Minister for Immigration & Multicultural Affairs [2000] FCA 85 at [13].
The Full Federal Court in MIMIA v VFAY; MIMIA v SHBB [2003] FCAFC 191 (French, Sackville and Hely JJ.) said at [97]:
“It may be accepted that the RRT should not limit itself to the case articulated by an applicant where the facts found by it, or not negated by its findings, might support an argument that the applicant is entitled to the protection of the Convention: Minister v Applicant S at 371 [73], per Stone J, citing Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28; Saliba v Minister for Immigration and Ethnic Affairs (1998) 89 FCR 38.”
The principle referred to above in Paramananthan was restated in Ramirez v MIMA (2000) 176 ALR 514; [2000] FCA 1000 by a Full Federal Court at [29] as:
“The tribunal is not bound by the way in which the case is presented. If there is material before the tribunal which raises a basis upon which an applicant might satisfy the Convention criteria, then the Tribunal is obliged to deal with the issue whether or not it is expressly relied upon by the Applicant.”
However, the broad principle remains as stated by Tamberlin J in Gnanasambanther v MIMA[2000] FCA 1911 at [3]:
“There is no duty on the RRT to embark on a general inquiry (emphasis added) into every aspect of the evidence presented on a refugee application if that evidence is not raised, relied on or advanced (emphasis added) by the applicant or the representatives of the applicant. As Gummow and Hayne JJ said in Abebe v The Commonwealth (1999) 162 ALR 1 at 51:
"The proceedings before the tribunal are inquisitorial and the tribunal is not in the position of a contradictor. It is for the applicant to advance whatever evidence or argument she wishes to advance in support of her contention that she has a well-founded fear of persecution for a Convention reason. The tribunal must then decide whether that claim is made out."
The leading authority on the extent to which the Tribunal must consider arguments not expressly advanced by an applicant is NABE v MIMIA (2004) 144 FCR 1. It is not enough that there be a factual error by the Tribunal. To constitute jurisdictional error the claim must be a substantial clearly articulated argument relying upon established facts.
At [55] the Full Federal Court said:
“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 MIMIA (2003) 77 ALJR 1088 at [24] and [95]”
The reference to S20 is to Re MIMIA; ex parte Applicant S20/2002 (2003) 77 ALJR 1165.
The Court endorsed the nature of the review function articulated by Allsop J in Htun v MIMIA (2001) 194 ALR 224 at [42] namely that a review of the decision 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. This is to be distinguished from errant fact finding.
Their Honours said at [58] that the review process is inquisitorial rather than adversarial. The Tribunal is required to deal with the case raised by the material or evidence before it: Chan v MIMIA (2000) 106 FCR 157 at [114]. Their Honours continued:
“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: SDAQ v MIMIA (2003) 129 FCR 137 at [19] per Cooper J. 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.”
Reference was made to the observation of Kirby J in Dranichnikov v MIMIA (2003) 197 ALR 329 that the function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances. The Full Court endorsed the characterization of Selway J (a member of the Full Court) in SGBB v MIMIA (2003) 199 ALR 364 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.”
At [60] the Full Court said this does not mean that the Tribunal 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.
At [63] their Honours concluded that it is plain enough, in the light of Dranichnikov that a failure by the Tribunal to deal with a claim raised by the evidence and the contentions before it which, if resolved in one way, would or could be dispositive of the review, can constitute a failure of procedural fairness or a failure to conduct the review required by the Act and thereby a jurisdictional error. It follows that if the Tribunal makes an error of fact in misunderstanding or misconstruing a claim advanced by the applicant and bases its conclusion in whole or in part upon the claim so misunderstood or misconstrued its error is tantamount to a failure to consider the claim and on that basis can constitute jurisdictional error.
I have set out these authorities at length because they make clear the obligation on the Tribunal to consider the applicants’ claims, or claims arising from facts clearly articulated by the applicants. Nowhere do the applicants argue that because of their social class are they subjected to persecution. The applicants’ case has always been a fear of persecution because of their affiliation with the AISSF. The applicants never articulated a social group claim (and which social group they still do not identify) nor raised facts that clearly identified such an argument.
In my view, the applicants have not demonstrated jurisdictional error as contended for in Ground 4.
Ground 5 as expanded in the applicants’ written submissions is that in concluding that the further grounds raised at the second hearing were essentially humanitarian reflects an unduly narrow view of the Convention reason. In my view there is no substance to this ground. The Tribunal correctly dealt with what I might call the conventional Convention ground, namely a well founded fear of persecution. It then said that in so far as the applicants wanted to make a better life for themselves in Australia, and did not want to return to the poverty of their former life in India, and obtain a better standard of education for their children, reflected humanitarian grounds. This was advocated by the applicants’ agent at the hearing at page 14 of the reasons. These grounds do not fall within s.65(1) of the Act.
The final ground is not further addressed by the applicants. The Tribunal did not need to consider whether poverty could amount to persecution as this did not have any Convention basis to it.
In my view, no jurisdictional error has been identified. The application must therefore be dismissed.

I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Wilson FM

D/Associate: Kristy Glover

Date: 22 February 2008