Eei17 v Minister for Immigration & Anor
[2018] FCCA 527
•9 March 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EEI17 v MINISTER FOR IMMIGRATION & ANOR | [2018] FCCA 527 |
| Catchwords: MIGRATION – Application for judicial review of decision of Immigration Assessment Authority (IAA) affirming decision of delegate not to grant applicant Safe Haven Enterprise Visa – whether IAA considered integer of applicant’s claim – whether IAA considered findings of facts and evidence considered by the delegate – jurisdictional error found. |
| Legislation: Migration Act 1958 (Cth), ss.415, 425, 472CC, 473B, 473CA, 473CB, 473CC, 473DB, 473DD, 473DE, Migration Regulations 1994 (Cth), r.4.43 |
| Cases cited: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 |
| Applicant: | EEI17 |
| First Respondent: | MINISTER FOR IMMIGRATION & BORDER PROTECTION |
| Second Respondent: | IMMIGRATION ASSESSMENT AUTHORITY |
| File Number: | SYG 2931 of 2017 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 9 February 2018 |
| Date of Last Submission: | 9 February 2018 |
| Delivered at: | Sydney |
| Delivered on: | 9 March 2018 |
REPRESENTATION
| Solicitor for the Applicant: | Ms A Battisson of Human Rights for All Pty Ltd |
| Counsel for the Respondents: | Mr H Bevan |
| Solicitor for the Respondents: | DLA Piper Australia |
ORDERS
The decision of the second respondent (IAA) made on 22 August 2017 affirming the decision (delegate’s decision) of a delegate of the second respondent made on 4 July 2017 not to grant the applicant a Safe Haven Enterprise Visa (SHEV) is quashed.
The IAA review according to law the delegate’s decision.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2931 of 2017
| EEI17 |
Applicant
And
| MINISTER FOR IMMIGRATION & BORDER PROTECTION |
First Respondent
| IMMIGRATION ASSESSMENT AUTHORITY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The principal issue in this application for judicial review is whether the second respondent (Authority), when affirming the decision of a delegate of the first respondent (Minister) not to grant the applicant a Safe Haven Enterprise Visa (SHEV), failed to consider, or properly consider, whether the applicant was a Bidoon.[1]
[1] “Bidoon” is sometimes spelt “Bedoon”. In these reasons for judgment I use “Bidoon”.
Claims for protection
In a statement that accompanied his application for a SHEV the applicant stated he is a citizen of Iraq, that his mother is “Bedouin” and his father is Arabic,[2] and that he was born in Al Nasiriya in southern Iraq. He also stated as follows:[3]
[2] CB131, [3]
[3] CB131-136
a)During the American invasion of Iraq in 2003 the applicant witnessed a man and boy being killed as a result of a missile strike.
b)In about 2006 the applicant’s parents sent the applicant’s brother, A, to Jordan to secure his safety.
c)In about 2010 a friend of the applicant who was 15 years of age was kidnapped and, after being held for one month, was released after the friend’s parents paid a ransom.
d)Many young people would disappear and then “they would threaten the parents that if the parents did not pay they would kill their children”.
Poor people and Bedouins such as ourselves were targeted because we lacked connections to people with power in the government or militias, or to tribes which could take action to protect us or punish the people committing these crimes.
e)In the middle of 2012 the applicant’s bothers, K and M, were kidnapped. The applicant’s father got very sick and the applicant, his mother, and his sisters fled to a tribal village two hours away from where the applicant lived.
f)The whereabouts of K and M were never ascertained. The applicant, with the encouragement of his mother, obtained a passport and fled Iraq by aeroplane.
The applicant stated he feared that if he were to return to Iraq he “will be targeted for kidnapping because of being a young man”, and “would not be able to safely live” by himself in the city.[4] The applicant also said he would not be able to pursue justice for his brothers because of the risk of retaliation from the kidnappers and their associates.[5] The applicant said:[6]
The authorities have denied us any protection because we are poor, Bedouin, and victims of a human rights abuse. The authorities will not provide any remedy because they will say that the deaths are just history and its past the date to punish anybody.
[4] CB135, [30]
[5] CB135, [31]
[6] CB135, [32]
Before the delegate
The delegate interviewed the applicant on 19 April 2017, after which the applicant’s legal representative provided written submissions to the delegate.[7] The representative submitted that the applicant had a well-founded fear of persecution because: (a) he is a Shia Muslim; (b) he will be imputed with a political opinion adverse to ISIS (that is, the Islamic State of Iraq and Syria) and Shia militias working with ISIS because the applicant does not support the creation of a caliphate state and because of his Shia background; and (c) the applicant is a member of a particular social group, namely, failed asylum seekers. It appears that before the delegate the applicant said he had been informed by his maternal cousin that the applicant’s brother, A, had returned to Iraq in 2017 but later died from a gunshot wound.[8]
[7] CB238,
[8] CB266
The delegate accepted that the applicant’s brother, A, died of a gunshot wound, and found plausible the applicant’s claims that his brothers K and M may have been kidnapped.[9] The delegate, however, did not accept the applicant’s claim that the person or persons responsible for A’s death was or were also responsible for the kidnapping of K and M.
[9] CB266
The delegate considered the applicant’s ethnicity. After referring to the applicant’s providing the biodata page of his passport issued by the Iraqi authorities on 17 June 2012 and his Iraqi identity card issued on 29 January 2013, the delegate said (emphasis added):[10]
The applicant has not raised any specific claims regarding his mixed ethnicity. In the absence of any evidence to the contrary, I accept the applicant’s mother is a Bidoon. I find that the applicant is an Iraqi citizen and has not had any issues because of his mother’s ethnicity as a Bidoon.
[10] CB267
The delegate further said (emphasis added):[11]
The applicant stated that his mother was of Bidoon ethnicity however did not raise any specific issues regarding his ethnicity. Nevertheless, from the information provided, it does not appear his mother was an undocumented Bidoon. DFAT assesses that Bidoons face low levels of official and societal discrimination.
[11] CB268
The delegate inserted a footnote next to the letters “DFAT”. The footnote records “Department of Foreign Affairs and Trade 2015, Country Information Report – Iraq 26 June 2017 CISEDB50AD4631” (Purported 2015 DFAT Report). There is in evidence a copy of a document issued by the Department of Foreign Affairs and Trade titled “DFAT COUNTRY INFORMATION REPORT IRAQ 26 June 2017” (Report);[12] but there is dispute about whether this is the same document as the Purported 2015 DFAT Report. In her written submissions Ms Battisson, who appeared for the applicant, submitted the delegate relied on the Purported 2015 DFAT Report, whereas counsel for the Minister submits it should be inferred that the Report and the Purported 2015 DFAT Report are the same document.
[12] Annexed to affidavit of applicant made on 16 January 2018
After noting the applicant’s evidence that between mid-2011 and February 2013 the applicant was either at school or unemployed, the delegate concluded this part of her reasons as follows:[13]
There is no information before me to indicate that the applicant has been persecuted because of his Arab/Bidoon ethnicity.
[13] CB268
It is unclear from the material before me why, given the applicant stated his mother was a Bedouin, the delegate referred to the applicant as having stated that his mother is a Bidoon and seemingly not an undocumented Bidoon and that the applicant, therefore, is of “Arab/Bidoon ethnicity”. At any rate, for reasons it is unnecessary for me to set out here, the delegate did not accept the applicant was a person to whom Australia owed protection obligations.
Nature of review required to be undertaken by Authority
Given the delegate’s decision was a “fast track reviewable decision” within the meaning of s.473BB of the Migration Act 1958 (Cth) (Act), the Minister, as he was required to do by s473CA of the Act, referred the delegate’s decision to the Authority. Once the decision was referred to it, the Authority was bound to do that provided for by s.473DB of the Act:
(1)Subject to this Part, the Immigration Assessment Authority must review a fast track reviewable decision referred to it under section 473CA by considering the review material provided to the Authority under section 473CB:
(a)without accepting or requesting new information; and
(b)without interviewing the referred applicant.
(2)Subject to this Part, the Immigration Assessment Authority may make a decision on a fast track reviewable decision at any time after the decision has been referred to the Authority.
The expression “review material” denotes the material s.473CB of the Act requires the Secretary to provide to the Authority “in respect of each fast track reviewable decision referred to the Authority under section 473CA”. Relevantly that includes the material described in s.473CB(1) of the Act, namely:
(a)a statement that:
(i)sets out the findings of fact made by the person who made the decision; and
(ii)refers to the evidence on which those findings were based; and
(iii)gives the reasons for the decision;
(b)material provided by the referred applicant to the person making the decision before the decision was made;
(c)any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review . . . .
It would be convenient at this point to consider the nature of the obligation s.473DB of the Act casts on the Authority to “review” a fast track decision that is referred to it. The starting point is the notion of “review”. That word has “no settled pre-determined meaning”; but rather “takes its meaning from the context in which it appears”.[14] The immediate context in which “review” appears in s.437DB is Part 7AA of the Act. The meaning and scope of the “review” the Authority must undertake, therefore, is to be assessed, at least in the first instance,[15] by reference to the provisions of Part 7AA; and here there are a number of provisions that are relevant.
[14] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 261 (Mason CJ and Brennan and Toohey JJ) quoted with approval by French CJ in Minister for Immigration and Citizenship v Li [2013] HCA 18 at [10] in connection with the jurisdiction of the Migration Review Tribunal to conduct a review conferred by s. 348 of the Act.
[15] In BMB16 v Minister for Immigration an Border Protection [2017] FCAFC 169 at [38] Dowsett J held that “review” “has the same core meaning in Part 7AA as it has in Parts 5 and 7”.
The first is s.473CC(2) of the Act which identifies the end or purpose of the review provided for by s.473CA of the Act. Subsection 473CC(2) provides that the Authority may “affirm the fast track reviewable decision” or “remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation”. The directions or recommendations the Authority may make and may not make have been prescribed by reg.4.43(2) of the Migration Regulations 1994 (Cth) (Regulations) as follows:
(a)the referred applicant must be taken to have satisfied the criteria for the visa that are specified in the direction; or
(b)the referred applicant is a refugee within the meaning of subsection 5H(1) of the Act; or
(c)subsection 36(3) of the Act does not apply to the referred applicant; or
(d)the referred applicant satisfies each matter, specified in the direction, that relates to establishing whether the referred applicant is a person to whom Australia has protection obligations because the criterion mentioned in paragraph 36(2)(aa) of the Act is satisfied in relation to the applicant.
Thus the end or purpose of the review provided for by s.473CA of the Act is for the Authority to decide whether the fast track reviewable decision is to be affirmed or, instead, remitted to the original decision maker for reconsideration and, if the Tribunal decides the matter should be remitted to the original decision maker, consider what directions or recommendations the Authority should give or make to the original decision maker. This may be contrasted with s.415 of the Act that defines the powers of the Administrative Appeals Tribunal (AAT) when reviewing Part 7-reviewable decisions. Section 415 of the Act confers on the AAT the power not only to affirm the decision under review but also to vary the decision or substitute its own decision for that of the decision-maker whose decision is under review; and further provides that, when the AAT decides to vary the decision or substitute its own decision for that of the decision maker, the AAT’s decision is taken to be the decision of the Minister (under s.65 of the Act).
The second provision to note is s.473DB of the Act. It requires the Authority to review the fast track reviewable decision in a particular way; that is by “considering” the material s.473CB identifies, without accepting new information, and without interviewing the applicant. The third provision is s.473DC which permits the Authority to obtain any document or information (new information) that was not before the delegate or the Minister and which the Authority may consider to be relevant. The Authority, however, may consider new information only if it is satisfied the requirements of s.473DD of the Act are met.
Sections 473DB and 473DD of the Act direct attention to three things. The first is the activity of “considering”. In Minister for Immigration & Multicultural Affairs v Anthonypillai the Full Federal Court discussed the meaning of “considering” in the context of the Refugee Review Tribunal’s obligations when conducting a review under s.414 of the Act.[16] The Full Federal Court said:[17]
The word “consider” is defined in the Oxford English Dictionary, in part, as: “to view or contemplate attentively ... examine ... scrutinise ... to fix the mind upon ... to reflect upon”. It is precisely that obligation which s 414 imposes, albeit indirectly, upon the Tribunal.
[16] [2001] FCA 274 (Heerey, Goldberg, Weinberg JJ)
[17] [2001] FCA 274 at [71]-[72]
These observations were made on the premise that, when exercising the powers conferred by s.415 of the Act (which does not include the word “considering”), the Refugee Review Tribunal was exercising the Minister’s powers under s.65 of the Act (which does use the word “considering”). Section 473CC of the Act does not purport to confer on the Authority the power the Minister or a delegate of the Minister is required to exercise under s.65 of the Act. The Authority’s power to intervene is limited to setting aside the fast track reviewable decision and making permitted directions or recommendations when remitting the application for reconsideration. This distinction between the AAT’s powers under s.415 of the Act and the Authority’s powers under S.472CC of the Act, however, is immaterial to the meaning that should be given to the word “considering” as used in s.473DB of the Act.
The second thing to which s.473DB and s.473DD of the Act direct attention is the material the Authority must consider. And here the Act distinguishes between material the Authority must consider, and material the Authority may consider. The material the Authority must consider is the “review material” identified by s.473CB to which I have already referred; and the information the Authority may consider, subject to s.473DD, is the “new information”. For reasons that will soon become apparent, of particular relevance to the applicant’s claim before me is that s.473DB of the Act includes the delegate’s statement of decision as part of the “review material” which the Authority must consider.
The third thing to which s.473DB and s.473DE of the Act direct attention is a prohibition, or set of prohibitions. The Authority is to review the fast track decision without interviewing the applicant unless, subject to s.473DD of the Act, the Tribunal decides to consider “new information”.
From these provisions the nature of the review the Authority is required to undertake may now be stated. Where (as is the case before me) the Authority has not considered new information, and it is not claimed the Authority ought to have considered new information, the task of the Authority is to consider the merits of an applicant’s application for a SHEV by considering the “review material”.[18] That requires the Authority “to view or contemplate attentively ... examine ... scrutinise ... to fix the mind upon ... to reflect upon” the review material, and determine whether, on the basis of its consideration of the review material, the delegate’s decision should be affirmed or remitted for reconsideration according to directions or recommendations the Authority is permitted to make under reg.4.43 of the Regulations. In undertaking this review the Authority has the power “to make such findings as it considers appropriate”.[19] That power extends to the Authority making different findings of fact from those which the delegate has made.[20]
[18] The Authority did attempt to obtain “Entry/Audio interview audio recording”, but none was available – see CB300-301
[19] BMB16 v Minister for Immigration an Border Protection [2017] FCAFC 169 at [38] (Besanko J)
[20] BMB16 v Minister for Immigration an Border Protection [2017] FCAFC 169
One of the materials the Authority must consider is the delegate’s statement that sets out the delegate’s findings of fact, which refers to the evidence on which those findings are based, and which gives reasons for their decision. In these circumstances it is not open to the Authority when reviewing a fast track decision simply to decide for itself the applicant’s claims by reference to the material the applicant placed before the delegate without also considering the delegate’s findings, the evidence on which the delegate relied for those findings, and the delegate’s reasons. The Authority is of course not required to consider whether the delegate made an error;[21] the Authority is required to reach its own view about the merits of an applicant’s claims. But in determining for itself the merits of an applicant’s claims, the Authority must consider the matters contained in the delegate’s statement as well as the other material that is comprised in the “review material” that is referred to it under s.473CB of the Act.
[21] BMB16 v Minister for Immigration an Border Protection [2017] FCAFC 169
This position may be contrasted with the review of Part 7 reviewable decisions where, unless the AAT is satisfied the delegate’s decision is to be affirmed, the AAT must under s.425 of the Act invite an applicant to appear before it for the purpose of giving evidence and presenting arguments. When reviewing a Part 7 reviewable decision the:[22]
question for the determination of the Tribunal is not whether the decision which the decision-maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.
[22] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. The comments in this case were directed to the functions of the Administrative Appeals Tribunal. The Full Federal Court in Minister for Immigration & Multicultural Affairs v Anthonypillai [2001] FCA 274 at [69] and [70] (Heerey, Goldberg and Weinberg JJ) said this passage accurately describes the review the Tribunal is required to undertake by s.414(1) of the Act. It may now not be appropriate to characterise the nature of AAT’s review in terms of the Tribunal making the correct or preferable decision – see BMB16 at [85] (Charlesworth J)
In these circumstances the decision of a delegate has little legal significance to the AAT’s review of a Part 7 reviewable decision. Its principal legal significance is that it serves to identify the issues an applicant ought reasonably to expect will be the issues the Tribunal will consider as being relevant to the conduct of the review.[23] In the case of a review under s.473CB, on the other hand, the delegate’s decision must be considered.
[23] That is, an “applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review””: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63 at [35]
The Authority’s reasons
The Authority begins its reasons by summarising the applicant’s claims.[24] It refers to the applicant’s claim that his two brothers K and M were kidnapped in 2011 or 2012, to the claim that the applicant’s third brother, A, returned from Jordan in 2017 and was killed in Iraq, to the applicant’s fearing that he too will be kidnapped and harmed by the same people who kidnapped his brother A; to the claim that ISIS and Shia militia will persecute the applicant because he is a Shia Muslim, and to the claim that the applicant is a member of the particular social group of failed asylum seekers. The Tribunal then made a number of findings. These included that the applicant is a national of Iraq,[25] and that the “applicant is a Shia Muslim of mixed Arab/Bedouin ethnicity as claimed”.[26] In the paragraph preceding this finding, the Authority said:[27]
The Australian Department of Foreign Affairs and Trade (DFAT) reports that Bedouins are concentrated in the south and west of Iraq. DFAT are not aware of any specific incidents of mistreatment of Bedouins on the basis of their ethnicity by the Government or wider community. DFAT note the situation for stateless Bedouin who may also be described as Bidoons (an Arabic word meaning ‘without’) is more complex as they are stateless and do not hold the classification documentation necessary to guarantee freedom of movement and access to services such as healthcare and education.
[24] CB306, [5]
[25] CB307, [8]
[26] CB307, [12]
[27] CB307, [11]
The Authority described the publication from which this passage appears to be an extract in a footnote as “Department of Foreign Affairs and Trade (DFAT), Country Information Report – Iraq, 26 June 2017, CISEDB50AD4631, paragraphs 3.3-3.5”.
The Authority accepted as plausible the applicant’s claims that his two brothers were kidnapped in 2011 or 2012 or that they are dead, but it did not accept that the brothers were kidnapped for reasons of race, religion, nationality, membership of a particular social group, or any political opinion they may have held or may have been imputed to hold.[28] Nor did the Authority accept the applicant’s brother A was killed on his return to Iraq. On the basis of these findings, and after considering country information, the Authority concluded the applicant did not have a well-founded fear of persecution or that the applicant faced a real risk of significant harm if he were to return to Iraq.
[28] CB308-309, [18]
The grounds of application
The grounds of application in the further amended application are as follows:
The Second Respondent committed a jurisdictional error by:
1.Ignoring relevant material, or in the alternative, failing to give sufficient weight to the relevant material (Ground One); and
2.in all the circumstances, denying the Applicant procedural fairness by denying a review of the relevant material (Ground Two),
3.Ground 3 – The Second Respondent failed to comply with its statutory obligation under section 473CC of the Migration Act 1958 to review the “fast track reviewable decision” of a delegate of the First respondent by failing to address an issue clearly arising from the material before it.
Particulars
1.The Applicant is ethnically Bidoon, has a Bidoon family background and is from Iraq.
2.A Bidoon is a stateless person from Kuwait (the word “Bidoon” in Arabic literally means “without nationality” or “without citizenship”), who may or may not have been granted nationality of a third party accepting state (in this case, Iraq). The Applicant’s mother is a Bidoon.
3.A Bedouin is a nomad.
4.A person can be a Bidoon and a Bedouin.
5.The Second respondent failed to consider the Applicant’s Bidoon ethnicity and family background in its review of the Applicant’s refusal protection visa application (procedural fairness).
6.The Applicant’s Bidoon ethnicity and family background are important integers of the Applicant’s protection visa application.
7.The failure to consider the Applicant’s Bidoon ethnicity and family background or to give sufficient weight to the same; and, in all the circumstances, to review relevant material relating to the same, amount to jurisdictional error.
8.The Second Respondent failed to consider or make any findings as to the decision of a delegate of the First Respondent that the Applicant was ethnically a Bidoon [sic] and his mother was a Bidoon [sic]. The Applicant’s Bidoon [Bidoon] ethnicity and mother’s ethnicity clearly arose on the face of the fast track reviewable decision.
9.In failing to consider or make any findings as to the above, the Second Respondent failed to comply with the requirements of section 473CC of the Migration Act 1958.
As I understand these grounds, and the submissions Ms Battisson made, the applicant claims the Authority failed to consider three items of information. The first is the delegate’s (incorrect) reliance on the Purported 2015 DFAT Report. The second is an integer of the claim Ms Battisson submits the applicant made before the delegate, namely, that he is a Bidoon. And the third is the delegate’s findings that the applicant’s mother is a Bidoon, that the applicant has not had any issues because of his mother’s Bidoon ethnicity, and that DFAT assessed Bidoons as facing low levels of official discrimination.
The DFAT Report(s)
In her written submissions Ms Battisson submits the delegate incorrectly referred to the Purported 2015 DFAT Report when the delegate ought to have referred to the Report, and the Authority, therefore, ought to have referred to the delegate’s error and corrected it.[29] This submission is premised on the submission that the Purported 2015 DFAT Report and the Report are different documents. Ms Battisson relies not only on the delegate’s description of the Purported 2015 DFAT Report containing “2015” but also on the delegate’s stating that “DFAT assesses that Bidoons face low levels of official and societal discrimination”. Ms Battisson submits that the Report states that “DFAT assesses that stateless Bidoon are subject to a moderate level of official discrimination”.[30]
[29] Applicant’s Submissions, [54], [55]
[30] Applicant’s Submissions, [52]
I do not accept the Purported 2015 DFAT Report and the Report are different documents; I find they are the same document. First, although the delegate’s description of the Purported 2015 DFAT Report includes “2015”, it also includes in the description “26 June 2017”, which is the date of the Report. Second, the delegate’s description of the Purported 2015 DFAT Report includes “CISEDB50AD4631”. That is included in the Authority’s description of the Report.[31] Third, the delegate’s decision is dated 4 July 2017, which is after 26 June 2017, being the date of the Report. Fourth, although the delegate’s statement that DFAT assessed that Bidoons face low levels of official and societal discrimination is incorrect, the error consists in attributing to Bidoons the assessment the Report made in relation to Bedouins, the stateless members of which the Report noted may also be described as Bidoons.[32]
[31] CB309, fn. 4, 5
[32] 2017 DFAT Report, [3.4], [3.5]
Claim based on applicant being a Bidoon
The parties proceeded on the assumption that the principles that have been applied for identifying the claims the AAT (and its predecessor) is required to determine when considering Part 7 reviewable decisions apply to the Authority when reviewing a fast track decision. I am prepared to proceed on that assumption, but subject to the qualification that the claims the Authority is required to assess are not only the claims that are expressly made by the applicant or which may be said tolerably to arise from the material an applicant provides to the delegate; they may include claims the delegate considers the applicant to have been made.
The principles for identifying the claims the AAT is required to consider when reviewing a Part 7 reviewable decision are well known, and I need only refer to two authorities. The first is the judgment of the Full Federal Court in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No.2) where the Full Federal Court stated the following principles:[33]
a)The “function of the Tribunal, as of the delegate, is to respond to the case that the applicant advances”; and neither “the delegate nor the Tribunal is obliged to consider claims that have not been made”.[34]
b)The Tribunal must “deal with the case raised by the material and evidence before it”,[35] and the “question, ultimately, is whether the case put by the [applicant] before the tribunal has sufficiently raised the relevant issue that the tribunal should have dealt with it”.[36]
c)That does not mean, however, the Tribunal “is only required to deal with claims expressly articulated by the applicant”.[37] On the other hand, the Tribunal “is not required to consider a case that is not expressly made or does not arise clearly on the materials before it”.[38]
[33] (2004) 144 FCR 1 (Black CJ, French and Selway JJ)
[34] (2004) 144 FCR 1 at page 19 [60]. The two quoted passages are respectively from the reasons for judgment of Kirby J in Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26 quoted by Selway J in SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at 405 and the reasons for judgment of von Doussa J in SCAL v Minister for Immigration and Multicultural Affairs [2003] 548 also quoted by Selway J in SGBB at [16]
[35] (2004) 144 FCR 1 at page 19, [60] quoting Selway J in SGBB at [17]
[36] (2004) 144 FCR 1 at page 19, [60] quoting Selway J in SGBB at [18]
[37] (2004) 144 FCR 1 at page 19, [60]
[38] (2004) 144 FCR 1 at page 20, [61]
The second case is NAVK v Minister for Immigration and Multicultural and Indigenous Affairs where Allsop J (as his Honour then was) explained when it could be said a claim not expressly made may nevertheless be considered to have been raised:[39]
From NABE I take it that the Tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy.
[39] [2004] FCA 1695 at [15]
Counsel for the Minister submits that, when considering whether a claim is made in the context of a review of a fast track reviewable decision, it is relevant to consider whether an applicant has provided a written submission, as an applicant is entitled to do under the “Practice Direction for Applicants, Representatives and Authorised Recipients” the President of the Authority has issued under s.473B of the Act.[40] Under that Practice Direction an applicant may provide a written submission on why the applicant disagrees with the delegate’s decision and which identifies any claim or matter the applicant presented to the delegate which the applicant claims was overlooked.
[40] A copy of the Practice Direction is at CB294-298
Ms Battisson submits the Authority was on notice the applicant is ethnically a Bidoon and has a Bidoon family background,[41] but that it failed to consider the applicant’s Bidoon ethnicity.[42] Ms Battisson also submits that a person cannot, by becoming a documented Bidoon, change his or her status as a Bidoon.[43] By that I understand Ms Battisson intends to submit that there arose on the material that was before the Authority the claim based on the applicant being a Bidoon, whether stateless or not.
[41] Applicant’s Submissions, [46]
[42] Applicant’s Submissions, [56]
[43] Applicant’s Submissions, [45]
The question is whether there arose tolerably clearly from the material before the Authority a claim that the applicant had a well-founded fear of persecution because he is a Bidoon, or a claim that there are substantial grounds for believing that because he is a Bidoon there is a real risk the applicant will suffer significant harm if he were to return to Iraq. That requires me to identify the material that was before the Authority. And here there are three classes of material to consider.
First, there is what the applicant stated and did not state in the material he and his adviser provided to the delegate. The applicant stated his mother was Bedouin, not Bidoon or Bedoon. Further, although he described himself as being in part a Bedouin, the applicant claimed he feared persecution for reasons that did not include his being a Bedouin or partly Bedouin. That is, the applicant did not claim he feared persecution or other harm because he was a Bedouin.
Second, there is the country information that was before the Authority. I infer, and it has not been submitted otherwise, that the only country information that was before the Authority is the Report. That report deals with “Bedouin” and “Bidoon”. The Report deals with the “Bedouin” under the heading “RACE/NATIONALITY” where it distinguishes Bedouins and stateless Bedouins, noting that the latter “may also be described as Bidoons”. The Report concludes this part of its assessment as follows:[44]
Overall, DFAT assesses that Bedouins face low levels of official and societal discrimination. Stateless Bedouins face high levels of official discrimination.
[44] 2017 DFAT Report, [3.5]
The Report deals with Bidoons in a separate section headed “GROUPS OF INTEREST”. This part of the report makes the following statements:[45]
a)The Bidoon are “a group of often stateless persons in the Gulf region, primarily Kuwait, including those unable to gain citizenship at the time of Kuwait’s independence due to lack of documentation, as well as those who renounced their citizenship to move to Kuwait (from countries such as Iraq)”.
b)During the Gulf war an estimated 100,000 Bidoons entered Iraq during that period, the majority of which were Sunni and around 80% of which are reported to live in the south of Iraq.
c)Approximately 47,000 Bidoon were granted Iraqi nationality by the Ba’ath Party regime through an assistance package called ‘makremiyah’.
d)Approximately 54,000 Bidoons remain stateless.
e)Stateless Bidoon do not have access to many services and public sector job opportunities, nor can they register land in their own names, sign rental contracts or inherit.
[45] 2017 DFAT Report, [3.57]-[3.58]
This part of the Report concludes as follows:[46]
DFAT Assesses that stateless Bidoon are subject to a moderate level of official discrimination. DFAT has no evidence of targeted violence against Bidoon communities.
[46] 2017 DFAT Report, [3.59]
It will be seen that the Report identifies four classes of persons: Bedouins as a whole; a subclass of Bedouins who are stateless and who are sometimes known as “Bidoons”; stateless Bidoons; and Bidoons who hold Iraqi citizenship (these being, or at the very least including, the estimated 47,000 Bidoons who were granted citizenship by the Ba’ath regime after the Gulf war). The Report assessed that three of the four classes faced some form of discrimination or ill treatment. The three classes the Report identified, and the assessments it made, are as follows:
a)Bedouins viewed as a whole (that is, Bedouins who are and who are not citizens of Iraq) “face low levels of official and societal discrimination”.[47]
b)Stateless Bedouins, who may also be described as Bidoons, “face high levels of official discrimination”.[48]
c)Stateless Bidoons “are subject to a moderate level of official discrimination”.[49]
[47] 2017 DFAT Report, [3.5]
[48] 2017 DFAT Report, [3.5]
[49] 2017 DFAT Report, [3.59]
The third class of material that was before the Authority and which it had to consider is the delegate’s findings, the evidence on which the delegate relied for those findings, and the delegate’s reasons. I have already set these out, but it would be useful to repeat them here. The delegate said (Relevant Findings):[50]
a)The applicant did not raise “any specific issues regarding his ethnicity”.
b)On the information provided it appears the applicant’s mother does not appear to be an undocumented Bidoon.
c)DFAT assessed that Bidoon face low levels of official and societal discrimination.
d)There is no information before the delegate to indicate the applicant has been persecuted because of his “Arab/Bidoon ethnicity”.
[50] CB268
I am not satisfied that a claim based on the applicant’s being a Bidoon arose tolerably clearly from the material that was before the Authority. The Authority was confronted with inconsistent or potentially inconsistent claims about the applicant’s ethnicity. One is the claim the applicant himself made in his statement that his mother was a Bedouin; and the other is the delegate recording in her reasons that the applicant stated his mother was of Bidoon ethnicity. The applicant did not seek to provide a submission to the Authority to explain or resolve the inconsistency or potential inconsistency. In these circumstances, I do not accept Ms Battisson’s submission that the Authority was clearly on notice that the applicant was ethnically a Bidoon. That of which the Authority may be taken to have been clearly on notice is the existence of two inconsistent or potentially inconsistent claims about the applicant’s ethnicity. An implication of my finding is that there did not necessarily arise tolerably clearly from the material that was before the Authority the claim that the applicant was a Bidoon.
Did the Authority consider the delegate’s findings?
The third item of materials the applicant claims the Authority failed to consider is the findings the delegate made in relation to the applicant’s Bidoon ethnicity. These are the “Relevant Findings” I have identified above.
Ms Battisson submits there is no evidence the Authority considered the delegate’s acceptance of the applicant’s Bidoon ethnicity and his mother’s Bidoon ethnicity;[51] and she submits that “after the single mention of stateless Bedouins or Bidoons” in its reasons, “there is no evidence that the IAA further considered stateless Bedouins or Bidoons as part of the Applicant’s protection claim”.[52]
[51] Applicant’s Submissions, [57]
[52] Applicant’s Submissions, [60]
In his written submissions counsel for the Minister refers to:
a)the applicant’s representative not having advanced before the delegate a claim based on his ethnicity;[53]
b)the delegate’s findings that the applicant has not raised any specific claims regarding his mixed ethnicity; the applicant had issues because of his mother’s ethnicity as a Bidoon; and there was nothing to indicate the applicant had been persecuted because of his Arab/Bidoon ethnicity; [54] and
c)the applicant not providing to the Authority written submissions.[55]
[53] First Respondent’s Outline of Submissions, [2]
[54] First Respondent’s Outline of Submissions, [4]
[55] First Respondent’s Outline of Submissions, [5]
Counsel then referred to the Authority’s decision to the extent it related to the applicant’s ethnicity and submitted as follows:[56]
It is tolerably plain that the Authority considered what the applicant had said about his ethnicity (including that he made no claim to fear harm on account of it), what the delegate had said, what the country information had said, whether the country information was about the relevant ethnic group and what the applicant’s evidence was about his circumstances. Its conclusion (at [12]) was not only open but, on the state of the material before the Authority, inevitable.
[56] First Respondent’s Outline of Submissions, [7]
I do not agree with counsel’s submissions to the extent they imply the Authority referred to “what the delegate had said” about the applicant’s ethnicity. As I have already noted, the delegate referred to the applicant having stated that his mother was a Bidoon and seemingly not an undocumented Bidoon; but the Authority did not refer to the delegate’s having made these findings, or the evidence and reasons on which the delegate relied for making these findings.
In my opinion, the Authority did not consider the delegate’s decision as it was required to do by s.473DB of the Act. In particular, the Authority did not consider the delegate’s findings of fact that the applicant’s mother was a Bidoon and seemingly not an undocumented Bidoon, and that Bidoons face low levels of official and societal discrimination. And although the Authority referred to the Report, being evidence on which the delegate relied for her findings, the Authority did not refer to the Report in the context of considering the evidence on which the delegate relied for making her findings. Had the Authority considered the delegate’s findings, and the evidence on which the delegate relied for those findings – that is, had the Authority viewed or contemplated attentively, or examined, scrutinised, or fixed its mind upon, or reflected upon the delegate’s findings and the evidence on which the delegate relied – the Authority would have in some way manifested that activity in its reasons. More particularly, had the Authority considered the delegate’s findings, it is reasonable to expect the Authority would have referred to the fact that the delegate assessed the applicant as being a Bidoon whereas in his statement the applicant claimed he was a Bedouin, and explained why the Authority considered that the applicant was to be assessed as a Bedouin rather than a Bidoon.
It appears the Authority approached its tasks simply by considering for itself the material that was before the delegate without considering any of the delegate’s findings or the evidence on which the delegate relied. There is no question the Authority was not only entitled, but bound to consider the material that was before the delegate with a view to determining for itself whether on the basis of that material the delegate’s decision should be affirmed or remitted for consideration; and there is no question that when undertaking that task the Authority was not required to consider whether the delegate made any error or otherwise made a decision that it was not the preferable decision to make. The Authority’s tasks, however, were not limited to considering the material that was before the delegate; its tasks extended to considering the delegate’s statement of reasons, and in particular the delegate’s findings of fact the delegate made, and the evidence and reasons on which the delegate relied for making those findings.
Conclusion and disposition
Given my conclusion that the Authority did not, as it was required to do by s.473DB of the Act, consider the Relevant Findings or the evidence on which those findings were based, the Authority made a jurisdictional error.
Before I conclude my reasons, I wish to make two observations. First, it might seem curious I have concluded I am not satisfied that a claim based on the applicant’s being a Bidoon arose tolerably clearly from the material that was before the Authority, yet have also concluded the Authority made a jurisdictional error by failing to consider the delegate’s finding of fact that the applicant was in part a Bidoon. Any apparent curiosity, however, arises from what I have concluded was the Authority’s failure to consider the delegate’s finding that the applicant was in part a Bidoon. As a consequence of that failure there were before the Authority two inconsistent or potentially inconsistent claims about the applicant’s ethnicity which the Authority did not address or resolve; and it is the presence of those inconsistent or potentially inconsistent claims that has led me to conclude there was not before the Authority a claim based on the applicant’s being a Bidoon or, indeed, a claim based on the applicant’s being a Bedouin.
Second, it may be thought that to remit the matter would be futile because, on the material that was before it, the Authority will inevitably conclude the applicant is not owed protection obligations whether he is assessed as a Bedouin or as a Bidoon. I would not be prepared to conclude that that would be the inevitable result of the Authority’s reconsidering the delegate’s decision. On remittal the Authority would need to consider the apparent conflicting claims of the applicant’s ethnicity. It is not beyond the realm of real possibility that, when considering the conflicting claims, the Authority might consider it appropriate to seek additional information pursuant to s.473DC of the Act.
I propose, therefore, to order that the Authority’s decision be quashed and that the Authority consider according to law the delegate’s decision.
I certify that the preceding fifty-five (55) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 9 March 2018
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