ELG17 v Minister for Immigration, Citizenship and Multicultural Affairs
[2023] FedCFamC2G 114
Federal Circuit and Family Court of Australia
(DIVISION 2)
ELG17 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FedCFamC2G 114
File number(s): SYG 3065 of 2017 Judgment of: JUDGE TAGLIERI Date of judgment: 17 February 2023 Catchwords: MIGRATION – protection visa application – application for judicial review – typographical error – whether reference to “political opinion” in the Tribunal’s reasons should be read as “nationality” – whether Tribunal addressed all aspects of the applicants’ case – jurisdictional error established – application for review allowed Legislation: Migration Act 1958 (Cth) ss5J, 5J(1)(a), 36(2)(a), 36(3), 36(4), 476 Cases cited: “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682
Chan v Minister for Immigration (1989) 169 CLR 379
CRI026 v The Republic of Nauru (2018) 355 ALR 216
EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222
EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1252
Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875
Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136
Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431
Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6
NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263
Solimon v University of Technology Sydney [2012] FCAFC 146
SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63
SZLPH v Minister for Immigration and Citizenship [2008] FCA 744
SZVBT v Minister for Immigration and Border Protection [2017] FCA 355
Division: Division 2 General Federal Law Number of paragraphs: 68 Date of last submission/s: 17 November 2022 Date of hearing: 16 November 2022 Place: Hobart Counsel for the Applicants: Mr Karp Solicitor for the Applicants: Kah Lawyers Counsel for the First Respondent: Ms Hooper Solicitor for the First Respondent: Minter Ellison ORDERS
SYG 3065 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: ELG17
Second Applicant
ELH17
Second Applicant
ELJ17 (and another named in the Schedule)
Third Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
order made by:
JUDGE TAGLIERI
DATE OF ORDER:
17 February 2023
THE COURT ORDERS THAT:
1.A writ of certiorari issue quashing the decision of the second respondent dated 14 September 2017.
2.A writ of mandamus issue directed to the second respondent as constituted by a different member to reconsider and determine the applicants’ application for review according to law.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
Judge Taglieri
On 3 October 2017, the Applicant filed an application in the Court for a review of a decision of the Administrative Appeals Tribunal, Migration and Refugee Division, (“the Tribunal”) dated 14 September 2017. The application enlivens this Court’s jurisdiction pursuant to s 476 of the Migration Act 1958 (Cth) (“the Act”).
BACKGROUND
The First and Second Applicants are non-citizens who are a married couple and are the litigation guardians for the Third and Fourth Applicants, who are their daughters. The First, Second, and Third Applicants applied for Protection Visas on 12 March 2014 and the Fourth Applicant was joined to the claim after her birth in 2015. The outcome of these proceedings for the children are dependent on the claims for protection advanced by their parents.
All Applicants’ claims were refused by a delegate of the First Respondent on 27 November 2015. The Applicants sought review of the First Respondent’s decision before the Tribunal.
The Tribunal conducted a hearing on 13 September 2017. The First and Second Applicant represented all Applicants at the hearing with the assistance of their migration agent, and they also gave evidence.
On 14 September 2017, the Tribunal affirmed the decision of the First Respondent’s delegate to refuse the Protection Visas.
The Application for judicial review of the Tribunal’s decision came before me on 16 November 2022 for hearing. At the hearing, all Applicants and the First Respondent were represented by counsel.
BASIS OF tRIBUNAL DECISION
The Tribunal member rejected claims for protection by the First and Second Applicants based on a fear or harm from the First Applicant’s ex-husband in South Africa, finding that those claims were exaggerated, inconsistent, disingenuous and unreliable. The Tribunal said that there was no evidence of threats or other contact from the ex-husband since 2013. Accordingly, the Tribunal did not accept that there was a real chance of persecution from the ex-husband.[1]
[1] Tribunal’s reasons at [27] and [28].
Connected to the claim referred to at [7] of these reasons, the Tribunal did not accept that the South African authorities would not afford protection to the First Applicant because of her profile as a woman married to a Nigerian. The Tribunal said that it was not satisfied the First Applicant was entitled to a Protection Visa on the basis of Convention related persecution.[2]
[2] Tribunal’s reasons at [29] to [30].
Although the Tribunal accepted that the Second Applicant faces a real chance of persecution on the basis of his political opinion in Nigeria, it observed that he had a right to enter South Africa as another receiving country. Accordingly, by virtue of the operation of ss 36(3) and (4) of the Act, the Tribunal concluded that there were no protection obligations owed by Australia to the Second Applicant.[3]
[3] Tribunal’s reasons at [37].
The Tribunal also rejected the notion that the Applicants may meet the requirements for complementary protection. In the First Applicant’s case, because of the factual rejection on a credibility basis of there being a real chance of harm from the ex-husband.[4] In the Second Applicant’s case, because factually the Tribunal was not persuaded that there was a real risk he would suffer significant harm upon return to South Africa.[5]
[4] Tribunal’s reasons at [42] to [44].
[5] Tribunal’s reasons at [47].
As the claims for protection by the Third and Fourth Applicants depended on those of their parents which had been rejected, their claims also were not accepted.[6]
[6] Tribunal’s reasons at [48].
Court Review
A review to this Court is authorised by s 476 of the Act. In order to succeed and obtain the relief sought the Applicant needs to demonstrate jurisdictional error by the Tribunal. What constitutes jurisdictional error is usefully described in Minister for Immigration & Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82].
Grounds of review
Only Grounds 4 and 6 of a further amended application for review filed 19 October 2022 were pursued at the review hearing, being that:
4.The Tribunal made a jurisdictional error in the it misunderstood the Second Applicant’s evidence and thus didn’t deal with an aspect of the Second Applicant’s claim
Particulars
Part of the Second Applicant’s claim was that he will be persecuted as a Nigerian and as a foreign immigrant in South Africa since there has been violence targeting Nigerians and foreigners in South Africa and that their properties have been burned.
…
6.Alternatively to Ground 4 above, the Tribunal erred in its construction of the words “a well founded fear of persecution” in s. 5J of the Migration Act in that it required an applicant for a Protection Visa to have personally suffered persecution in the past if he were to have a well founded fear of persecution for the purpose of that section.
The First Respondent did not oppose the further amended grounds and the hearing proceeded on the basis that leave was granted to the Applicants to file and serve the further amended application dated 19 October 2022.
Applicant’S CASE
The Applicants relied on and the Court read without objection:
·The affidavit of Ms Silva filed on 23 December 2017, which annexed a transcript of the recording of the Tribunal hearing as transcribed by Sparke & Cannon; and
·A written outline of submissions filed on 19 October 2022.
The Court also received supplementary written submissions dated 16 November 2022, pursuant to leave granted as a result of exchange between counsel and myself during the hearing concerning what constitutes a “typographical error”.
The grounds of review rely on the rejection of the claims for protection made by the Second Applicant and the Tribunal’s reasons at [36].
In summary, Ground 4 relies on the Tribunal misunderstanding or failing to deal with an aspect of the Second Applicant’s claim for protection, namely that he feared persecution as a Nigerian and foreigner or immigrant in South Africa.
This failure is said to have arisen due to selective regard of the evidence given by the Second Applicant about the treatment of Nigerians in South Africa. I was directed to the relevant part of the transcript of evidence during the hearing before the Tribunal.[7]
[7] Transcript of the Tribunal hearing at page 19, as attached to the affidavit of Ms Silva filed 23 December 2022 at Annexure A.
In support of the contentions about Ground 4, the Applicants relied on Htun v Minister for Immigration and Multicultural Affairs (2001) 233 FCR 136 (“Htun”) at [42] and NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 at [63] and other authorities cited in their written submissions at [12(a)].
Counsel for the Applicants also highlighted that the Tribunal’s reasons at [35] appear to accept that the Second Applicant was making a claim about the possibility of facing persecution in South Africa due to his Nigerian “nationality” and “race” or ethnic origin, but then at [36] the Tribunal rejects the claim without providing any reasoning. I understood this to be the basis upon which it was said that the Tribunal did not deal with the claim regarding persecution due to being a Nigerian foreigner in South Africa.
In his oral submission, Counsel for the Applicants rebutted what the First Respondent says about this ground at [18] of its written outline of submissions dated 28 November 2022. That is, he submitted that it was incorrect or flawed to seek to label the reference to “political opinion” in the second sentence of the Tribunal’s reasons at [36] as a typographical error intended to state “nationality” or “race”.
Counsel for the Applicants submitted that the Tribunal characterised the evidence about persecution for reasons of being Nigerian as “very generalised and vague” and this reflects that the Tribunal simply did not consider or misunderstood the claim clearly made by the Second Applicant. Namely, that he feared persecution as a Nigerian foreigner, which claim was supported by oral evidence given at the hearing,[8] and the country information provided which demonstrated widespread killings and injuries caused to Nigerians and other foreigners in South Africa at the time.[9]
[8] Transcript of the Tribunal hearing at page 19, as attached to the affidavit of Ms Silva filed 23 December 2022 at Annexure A.
[9] Court Book at pages 204 and 212 to 215.
Ground 6 is an alternate ground reliant on a purported error in construction of the meaning of “a well-founded fear of persecution”. Namely, that the Tribunal interpreted this to mean that it had to be satisfied that the Second Applicant had personally suffered persecution in the past. That is, the asserted error arose because the Tribunal failed to undertake the predictive exercise of evaluating the chance of the harm in South Africa due to being Nigerian based on evidence put before it.[10]
[10] Minister for Immigration and Border Protection v MZYTS (2013) 230 FCR 431 (“MZYTS”) at [33] and Chan v Minister for Immigration (1989) 169 CLR 379 at [415] and Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at [571] to [573].
Counsel for the Applicants submitted that proving past persecution is not an essential step in demonstrating a well-founded fear of persecution. He also directed the Court to evidence that had been placed before the Tribunal about what he characterised as xenophobia directed against foreigners and which appeared to be widespread.
FIRST RESPONDENT’S CASE
Counsel for the First Respondent relied on the written outline of submissions dated 28 October 2022 and orally amplified those.
Regarding Ground 4, he stated there was no dispute about the law relied on by the Applicants, but it was submitted that what is required of the Tribunal to meet its obligations of actively considering or dealing with a claim does depend on the nature of the representations made.
In this case, the First Respondent says the representations of a well-founded fear based on being a Nigerian foreigner were negligible and nothing was put to explain the documents in the Court Book at pages 204 and 212 to 214.
The First Respondent contends in written and oral submissions, in summary, that:
(a)“Political opinion” in the fourth line of the Tribunal’s reasons at [36] is a typographical error and this is evident from a full and contextual reading of the Tribunal’s reasons at [35] and [36]; and
(b)The Second Applicant did not claim to fear harm because he was a foreigner or immigrant in South Africa. In any event, the Tribunal did consider whether he faced a real chance of harm in South Africa because he originated from Nigeria, but rejected the same.
In answer to Ground 6, the First Respondent submits that the interpretation or reading invited by the Applicant of the Tribunal’s reasons at [36] is not fair. A fair reading of the paragraph merely demonstrates that the Tribunal permissibly took into account the absence of past persecution of the Second Applicant based on being a Nigerian which, with other factors,[11] did not satisfy a well-founded fear of persecution.
[11] [2012] FCAFC 146Vague or generalised claims about possibly being killed or assaulted; claim of fear from the ex-husband.
In oral submissions in response to my question regarding the extent to which the Court should construct the words of the Tribunal, Counsel for the First Respondent referred to Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6 (“Wu Shan Liang”) as authority for the proposition that the Tribunal’s reasons are to be read fairly and without seeking to find error.
I queried what may be perceived as jurisdictional error based on inadequacy of reasons, and Counsel responded that failure to provide adequate reasons is not necessarily of itself fatal and the onus is on the Applicants to establish that the inadequacy amounts to jurisdictional error in some form. She submitted that as there was no claim by the Second Applicant to fear harm in South Africa because of his political opinion, so it would be unfair to literally interpret the term as used in the Tribunal’s reasons at [36], as the balance of [36] and indeed the entire judgment addresses the issue of nationality.
REPLY SUBMISSIONS
In reply, Counsel for the Applicants distinguished Wu Shan Liang. He submitted that the reasoning of the Court about onus was in the context of whether a Visa should be reinstated, a very different situation to the present. He emphasised that Htun was still good law and the claim based on fear of harm due to being a Nigerian and a foreigner was made but that the Tribunal did not deal with it.
Finally, Counsel submitted that the First Respondent sought to rewrite the Tribunal’s reasons at [36], which was not permissible. Basically that it was not allowable to interpret the reasons as put by the First Respondent.
I raised with Counsel for the Applicant whether the terms of the Tribunal reasons at [36] may amount to jurisdictional error because of the confusing quality or inadequacy of the reasons. He did not expressly address this, other than to say that he believed his learned friend was correct in saying that a failure to give proper reasons by a Tribunal did not constitute jurisdictional error; and a citation for that proposition was Solimon v University of Technology Sydney [2012] FCAFC 146.
I clarified that what I was raising a wider proposition, namely that if the nature or quality of the reasons of the Tribunal leave the court unable to be satisfied about whether a claim made by an Applicant was considered, might it constitute jurisdictional error. The following exchange then occurred:
MR KARP:Well, your Honour, I would agree that if the – if the tribunal misstated the claim, then it hasn’t dealt with the claim. And, really, I would submit that in paragraph 36, by its reference to political opinion, it misstated the claim. Does that respond to your Honour’s question?
HER HONOUR: Well, I think it does. You’re clearly pinning your case to the misconstruction rather than – the misconstruction leading to the failure to consider
MR KARP:Yes.
MATTER ARISING
Noting the First Respondent’s submissions relating to the “typographical error” at [36], I enquired of both counsel whether they could refer me to case law or principles about what latitude is given to interpreting words in reasons of a decision and characterising them as typographical error. Counsel sought leave to provide authorities and brief submissions about this, which was granted.
THE SUPPLEMENTARY SUBMISSIONS
For the Applicants
In a document entitled ‘Applicant’s Additional Submissions and Authorities’ filed 16 November 2022, Counsel for the Applicant submitted that the category of “typographical error” which the Court will correct is one that is inadvertent and does not affect the exercise of power.[12] However, an error which shows a flaw in the decision-maker’s reason will not be corrected.[13] In particular, Counsel drew the Court attention to SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63 (“SZIFI”) at [45], which states:
…The errors must be taken to have affected the exercise of the power as the Tribunal has recited the errors as material matters for the purposes of s 430(1) of the Act. The notion of an ‘affect’ upon the exercise of a power seems to me to comprehend a well placed apprehension on the part of the court in the exercise of supervisory review that the identified errors going to jurisdiction influenced the mind of the decision-maker in purporting to exercise the power.
[12] “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682, and SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63.
[13] CRI026 v The Republic of Nauru (2018) 355 ALR 216.
And also CRI026 v The Republic of Nauru (2018) 355 ALR 216:
56.Viewed in that context, it will be seen that the incongruous observation in paragraph 68 was truly intended to be a formal restatement of the conclusion immediately before expressed, in paragraph 67, on the basis of all of the relevant considerations essayed in paragraphs 11 to 66, and that somehow a typographical error – possibly an error in editing a form of words cut and pasted from a previous decision in another matter – resulted in references to Sri Lanka and Tamils rather than Karachi and the MQM.
57.It is unfortunate that such an error should have been permitted to occur. It suggests a lack of care in final proof reading of reasons for which all three members of the Tribunal were responsible – but the principal burden of which falls on the presiding member – that should not have occurred and should not be repeated. Such errors are likely to create doubts about the validity of decisions which should not arise. Nevertheless, reading the Tribunal's reasons as a whole, it is plain beyond peradventure that in this case it was not an error in the reasoning process of the kind for which the appellant contended and should be disregarded: falsa demonstratio non nocet
[original emphasis]
Counsel for the Applicant concluded:
9.Many more examples could be cited, but the point is that whether an error in an administrative decision can be seen as inadvertent or one of substance depends on the particular circumstances. Matters to be considered are the nature of the error, the number of errors, and the effect of those errors on the administrator’s reasoning process. In the current case the reference to the Tribunal’s errors of fact, cited in argument were,
(i)The omission, at CB 341 [23] of references to Nigerians in South Africa being targeted for attack in the present, and not just in the past.
(ii)The erroneous statement at CB 341 [23] that the second applicant’s claims in South Africa were, “entirely to do with the threats from” the first applicant’s ex husband.
(iii)The erroneous reference to “political opinion” at CB 343 [36], and,
(iv)The statement also at CB 343 [36] that the second applicant’s fear of persecution was “essentially” one of being harmed by his wife’s ex husband. Fear of the ex husband was the main claim, but to state that that was the essential claim was incorrect.
For the First Respondent
In the list of supplementary authorities filed 16 November 2022, the First Respondent identified authorities in support of the contentions that:
(a)When a typographical error is identified it ought to be corrected rather than exploited;[14]
(b)It is for the Court to decide whether the error is such that it does not reflect the true meaning of the Tribunal;[15] and
(c)While the starting point is to read the decision as written, the Court should not have concern as to the looseness of the Tribunal’s language or poor phrasing.[16]
[14] “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682 at [28] to [29]; Foroghi v Minister for Immigration and Multicultural Affairs [2001] FCA 1875 at [48]; SZLPH v Minister for Immigration and Citizenship [2008] FCA 744 at [29] to [32].
[15] Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368 at [44].
[16] EQV20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1252 at [27] to [29].
Further, the list of supplementary authorities refers the Court to EBQ20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FedCFamC2G 222 at [167] to [173], which provides a summary of the principles concerning how the Court should treat typographical or clerical errors.
In conclusion, Counsel for the First Respondent reiterated that there is an obvious typographical error in the reference to “political opinion” in the Tribunal’s reasons at [36] and the Court should construe the true meaning of the Tribunal in acknowledging that error. When construed in such a way, the Tribunal’s reasons address all integers of the Second Applicant’s claim.
EVALUATION
Ground 4
In so far as both grounds of review are concerned, in my view the dispositive passages of the Tribunal’s decision appear are at [30] to [36] of the decision record.[17]
[17] Court Book at page 343.
The intellectual process of consideration and reasoning is apparent and as follows:
(a)At [32] factual findings are made about the Second Applicant’s political opinions based on acceptance of his evidence and independent country information about the nature and prospect of harm in Nigeria for political opinions held;
(b)At [33] the Tribunal accepts that the Second Applicant meets the requirements for protection pursuant to s 36(2)(a) of the Act in respect of Nigeria;
(c)At [34] the Tribunal identifies that the Second Applicant is excluded from entitlement to protection if able to return or reside to another receiving country and finds he does have such entitlement, namely South Africa;
(d)At [35] the Tribunal finds the Second Applicant has not availed himself of entry to South Africa and notes that he claims that to be because of “possibility of facing persecution in South Africa due to his Nigerian “nationality” and “race” or ethnic origin”.
(e)In the first sentence of [36], the Tribunal makes a finding that on the evidence it is not satisfied that the Second Applicant has a well-founded fear of being persecuted in South Africa for reasons of “race, religion, nationality, membership of a particular social group or political opinion”.
(f)The reasons for the finding referred to at [45(h)] follow in the second sentence of [36] which state:
In particular, [the Second Applicant] excluded his political opinion as a factor giving rise to a real chance of persecution in South Africa when he said he had not personally suffered persecution for reasons of being a Nigerian, when he and only made very generalised and vague claims about this possibly occurring one day, and when he emphasised to me that his fear of persecution in South Africa is essentially a fear of being assaulted or even killed by [the First Applicant]’s ex-husband
Noting the above, I accept that the Tribunal was conscious that, apart from the claims relating to return to South Africa and fear of the actions of the First Applicant’s ex-husband, claims for protection had been made based on two refugee-related grounds for the purpose of ss 36(2)(a) and 5J of the Act. That is, political opinion in Nigeria[18] and due to persecution he would face in South Africa being “Nigerian” at [35], based on race or nationality.
[18] Tribunal’s reasons at [32] and [33].
The Tribunal did not express itself with any particularity or clarity when it concluded as it did in the first sentence of [36] that it lacked satisfaction that the Second Applicant satisfied the requirements for protection as a refugee. Instead, it made a wide and general finding about dissatisfaction as to any of the jurisdictional facts that may entitle protection as a refugee. It expressed itself generally and identically quoted s 5J(1)(a) of the Act and was non-specific as to a returning country.
This was followed by the second sentence of [36] which confusingly refers to the Second Applicant excluding political opinion as a factor in South Africa when he said that he had not personally suffered persecution for reason of being Nigerian. This on its face and the plain reading of the reasons conflates the basis of claimed protection for a return to Nigeria and the basis upon which the Second Applicant relied on s 36(4) of the Act, in relation to a return to South Africa, namely his Nigerian race or nationality.
The First Respondent contends that the reasoning at [35] demonstrates that the reference to political opinion in [36] is a mere typographical error and was obviously intended to state “race or nationality”, and the words following in the second sentence of [36] explain or convey the basis for rejection of the claim based on race or nationality. In short, if the claim was made, it was rejected as the Tribunal was permitted to do on a merit review standing in the shoes of the primary decision maker.
The difficulty with the contention by the First Respondent is that Tribunal’s conclusion in the first sentence refers to “political opinion”, so plainly, logically and reasonably read it is a finding about the basis for protection claimed in respect of return to Nigeria, and is capable of being construed as a finding or conclusion about that claim which contradicts the earlier finding at [33].
I have considered the principles and authorities to which I was referred by the parties’ supplementary written submissions. I agree that the pertinent point is as stated by the Applicants at [9] of their supplementary submissions and set out at [38] to [40] of these reasons. It was those principles that I was alluding to when I invited submissions from both counsel as noted at [30] to [34] above.
In this case, I consider it is going impermissibly too far to read the words “political opinion” as contended by the First Respondent. The reasons are ambiguous, contradictory in part, confusing and open to alternate interpretation, as is obvious from the submissions presented to me during the hearing. One interpretation or construction which may mean the Tribunal did adequately consider the claim and relevant evidence relating to race or nationality in the context of return to South Africa, the other meaning it did not and instead misunderstood or misstated that claim.
Accordingly, it goes the heart of whether the Tribunal discharged its statutory function and exercise of power. It is not a case of being confident that the Tribunal simply made an “obvious typographical error” or “clerical oversight” which proof reading did not detect. For the foregoing reasons, I do not consider it clear that there is a clerical error on a fair reading of the reasons, as described in Wu Shan Liang.
In arriving at this conclusion, I have been mostly guided by the instruction in “CCC” v Minister for Immigration and Multicultural Affairs [2001] FCA 682 at [28] and SZIFI at [45]. If it is a mere typographical error, the confusion and ambiguity it causes on plain reading of the reasons collectively referred to above, makes it distinguishable from the errors referred to in the authorities relied upon by the First Respondent in its written submissions of 16 November 2022.
I conclude that it is not obvious or clear that the Tribunal made a typographical error by including “political opinion”, instead I consider the error goes to vitiating the exercise of power.[19] In arriving at this conclusion I am reinforced by the guidance of Flick J in Flick J in SZVBT v Minister for Immigration and Border Protection [2017] FCA 355 at [18], where his Honour stated:
Even if it were possible ... to distil from an administrator’s statement of reasons those findings of fact and those reasons which have led to an ultimate conclusion, reasons may still expose jurisdictional error in the present statutory context if they are so structured and set out that they are not “intelligible” because they fail to explain in understandable terminology why an application for a protection visa has been unsuccessful. Even where a document may contain all necessary findings of fact and all the reasoning as to why those facts have led to a particular conclusion, jurisdictional error may be exposed where the findings and reasons are presented in such a manner that they remain confusing and confused to the audience to which they are directed. The purpose sought to be achieved by a legislative requirement to provide reasons is certainly hindered in such circumstances.
[original emphasis]
[19] SZIFI v Minister for Immigration & Multicultural & Indigenous Affairs [2007] FCA 63.
I consider the Tribunal committed jurisdictional error because it is not possible to readily discern. Due to the ambiguity and confusion in the reasons, whether it properly considered the claim based on the Second Applicant’s race or nationality on a return to South Africa. This conclusion is reinforced because there is only superficial mention by the Tribunal of the oral evidence the Second Applicant gave about this and no engagement in the relevant country information/evidence corroborative of the claims plainly before the Tribunal.[20]
[20] Court Book at pages 204 and 212 to 214.
I accept that the court needs to be persuaded that the country information was not considered, but in the present case it is not merely a case of failing to mention in the reasons a limited and or unimportant piece of evidence as discussed by the High Court in ETA067 v Republic of Nauru [2018 HCA 6.
As the Second Applicant had given evidence to the Tribunal about his fear of return to South Africa as a Nigerian and it was seemingly appreciated by the Tribunal,[21] the country information relied upon and before the Tribunal was relevant and needed to be considered whether attention was expressly drawn to them or not.[22] It was particularly relevant corroborative material of oral claims made by the Second Applicant and the misstatement and confusion in [36] of the reasons leaves me persuaded that it was not considered.[23]
[21] Given the Tribunal’s reasons at [35].
[22] Htun at [42] and MZYTS at [38] and [44].
[23] Minister for Immigration and Citizenship v SZRKT [2013] FCA 317 at [67] to [74].
This foregoing failures on the Tribunal’s part, are recognised as jurisdictional error and sufficiently captured by Ground 4 and it therefore succeeds.
Ground 6 in my view is related to the jurisdictional error found in Ground 4, because proper appreciation and consideration of the claim and relevant evidence concerning the Second Applicant’s fear of persecution in South Africa was required, in order to determine that claim according to law and for the Tribunal to discharge its statutory function. Nevertheless it is raised as a discrete ground, so I will address it.
In their submissions, the First Respondent properly directed the Court’s attention to MZYTS at [33], states:
… It is, as the authorities have consistently emphasised, a predictive exercise involving speculation as to circumstances in the future on the basis of material in the present, and what has happened to the person in the past: Chan Yee Kin v Minister for Immigration and Ethnic Affairs [1989] HCA 62; (1989) 169 CLR 379 (Chan) at 391, 432; Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (Guo) at 571-573.
[original emphasis]
However, the Full Court provided more fullsome instruction in MZYTS (2013) in the reasons that follow [33]. In particular is stated in summary as follows:
·lawful formation of that state of satisfaction (one way or the other) involves, first, a correct understanding of the basis (or bases) on which the visa applicant says she or he has a fear of persecution in a returning/receiving country;
·determination of whether there is an objective basis for the person’s fear is the central part of the predictive or speculative task and it can only be undertaken by reference to an assessment of, and findings of fact about, the circumstances in the person’s country of nationality at the time the person is likely to be returned there; and
·If an applicant has been persecuted for a Convention reason in the past, it will be possible or even easy to conclude that there is a real chance of that repeating, but an absence of past persecution does not deny that there is a real chance of future persecution.
Having read the Tribunal’s reasons in their entirety, if the second sentence of [36] was intended to provide the reasoning for a conclusion that the Tribunal was not satisfied the Second Applicant faced a well-founded fear of persecution in South Africa on account of his Nigerian race or nationality, I agree with the Applicant’s counsel that the Tribunal failed to undertake the task required of it as explained in the about passages and authorities for the following reasons.
First, because it did not have a correct understanding of the basis of the claim by the Second Applicant as it misstated or misunderstood the claim and did not properly consider it as discussed in my reasoning concerning Ground 4.
Second, because it is obvious from the reasoning in the second sentence of [36] that reliance was placed on the Second Applicant not personally having suffered persecution in the past due to being Nigerian, but experience of past persecution for the claimed reasons is not a prerequisite and hence it cannot exclude the requisite state of satisfaction which is what the Tribunal said.
Third, because a person expresses fear of persecution for one reason does not necessarily exclude others reasons. The member appears to have approached the task in that way by referring to the other two factors to which the First Respondent’s submissions filed 28 October 2022 refer at [22].[24]
[24] Generalised and vague claims and emphasised fear of the ex-husband.
The established legal principles require an objective and predictive evaluation of all the evidence about the Second Applicant’s past experiences and the current circumstances in the receiving country to inform the state of satisfaction about s 5J of the Act. I consider that the Tribunal’s reasons fail to accord with the required approach and Ground 6 also succeeds.
Conclusion
The relief sought by the Applicants is granted and orders made in the terms sought.
I certify that the preceding sixty-nine (68) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Taglieri. Associate:
Dated: 17 February 2023
SCHEDULE OF PARTIES
SYG 3065 of 2017 Applicants
Fourth Applicant:
ELK17
0
19
0