MZWBY v Minister for Immigration
[2006] FMCA 254
•24 February 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MZWBY v MINISTER FOR IMMIGRATION & ANOR | [2006] FMCA 254 |
| MIGRATION — Protection visa – jurisdictional error – failure to consider relevant matter – decision quashed. |
| VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 |
| Applicant: | MZWBY |
| First Respondent: | MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
| Second Respondent: | REFUGEE REVIEW TRIBUNAL |
| File Number: | MLG 8 of 2004 |
| Judgment of: | McInnis FM |
| Hearing date: | 27 April 2005 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2006 |
REPRESENTATION
| Counsel for the Applicant: | Mr J.W.K. Burnside QC, with Mr T.D. Cordiner |
| Solicitors for the Applicant: | Victoria Legal Aid |
| Counsel for the Respondents: | Mr W.S. Mosley |
| Solicitors for the Respondents: | Australian Government Solicitor |
ORDERS
A writ of certiorari issue directed to the Second Respondent, quashing the decision of the Second Respondent dated 20 November 2003.
A writ of mandamus issue directed to the Second Respondent, requiring the Second Respondent to determine according to law the application for review.
The First Respondent pay the Applicant’s costs.
Liberty to apply is granted to parties in relation to the issue of costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 8 of 2004
| MZWBY |
Applicant
And
| MINISTER FOR IMMIGRATION & MULTICULTURAL & INDIGENOUS AFFAIRS |
First Respondent
| REFUGEE REVIEW TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
The Applicant is an Iranian female citizen. She was born in 1971 and is now aged 34 years. The Applicant arrived in Australia on 7 April 2000. On 16 May 2000 she lodged an application for a protection visa with the First Respondent's Department.
On 9 October 2000 a delegate of the First Respondent refused to grant the visa and on 1 November 2000 the Applicant applied for review of that decision to the Refugee Review Tribunal (the Tribunal). In a decision dated 20 November 2003 the Tribunal affirmed the delegate's decision not to grant a protection visa.
Before this court the Applicant relies upon an amended application filed on 6 October 2004. The amended application claims jurisdictional error and seeks orders including a declaration that the decision was unlawful, void and of no effect, an order in the nature of certiorari, quashing the decision, or alternatively an order setting the decision aside, and relevantly for the present purposes an order in the nature of prohibition, prohibiting the First Respondent from taking action on the decision of the Tribunal and an order remitting the matter to a differently constituted Tribunal to be determined according to law.
Jurisdictional error
In considering the issue of jurisdictional error I adopt and apply the following passage from the Full Court of the Federal Court decision in VAT v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCAFC 255 where the Court states:-
“16 It is not disputed by the appellants that in order to find jurisdictional error this Court should rely on the description of what constitutes jurisdictional error as it appears in Plaintiff S157/2002 v Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 and in particular on the statement in Minister for Immigration & Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82] citing Craig v State of South Australia (1995) 184 CLR 163. That requires the appellants to establish that the Tribunal fell into error of law by identifying a wrong issue, asking itself a wrong question, ignoring relevant material, relying on irrelevant material or, at least in some circumstances, making an erroneous finding or reaching a mistaken conclusion. To this may be added denial of procedural fairness: Minister for Immigration & Multicultural & Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12 per Gummow and Hayne JJ at [49], footnote 26 referring to Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 and Re Minister for Immigration & Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57.”
Any jurisdictional error detected must affect the exercise or purported exercise of power in order to provide a proper basis upon which the Court should intervene by way of judicial review. A failure to take into account a relevant consideration would not of itself constitute an error unless it was a consideration that the Tribunal was bound to take into account (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
The applicant's claim before the Tribunal
Before the Tribunal the Applicant gave oral evidence on 16 May 2002 and 17 June 2002. The Tribunal in its decision notes that it had regard to the material referred to in the delegate's decision and other material available to it "from a range of sources including the Tribunal's file".
It is appropriate to set out in detail an extract from the Tribunal's decision where it summarises the Applicant's claim:
“CLAIMS AND EVIDENCE
The Tribunal has before it the Department’s file, which includes the protection visa application and the Department’s decision record. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources, including the Tribunal’s file. The applicant gave oral evidence to the Tribunal on 16 May 2002 and 17 June 2002.
Claims in protection visa application
A summary of the claims is as follows:
The applicant states that on 14 April 1992 she participated in a major rally organized by handicapped Iran-Iraq war veterans seeking better living conditions for them and their families according to the strict ‘Akhoond’ rulings in Iran. Some civilians who opposed Akhoond’s strict regime in Iran, including the applicant and her elder brother Ali, also participated in the rally. During the rally the applicant and her brother were caught and imprisoned.
In prison the applicant was interrogated, beaten and tortured and mistreated physically and mentally for about 18 months. There she became acquainted with ‘one of the custodians’ whom the applicant agreed to marry if he would help her be released from prison. With his assistance the applicant was released from prison on 26 September 1993.
However subsequently her life became ‘worse than a prison’. She was required to report to an intelligence service agency on a monthly basis and to sign documents there as proof that she still remained in the country and was not involved in any activities against the Islamic Republic of Iran. She was told that if she ‘escaped’ or left Iran her family home would be confiscated by the authorities. The authorities also ‘banned’ the applicant from undertaking university study or working. Additionally, she was not allowed to travel to other cities in Iran. She was also told that if she was ever seen in the vicinity of any other rally she would be imprisoned for life or executed without trial or recourse to appeal.
In addition, the individual she had agreed to marry placed constant pressure on her to do so, despite the fact he was married and had two children. This individual warned the applicant that if she did not agree to marriage he possessed the authority to return her to prison.
Subsequently, through a friend, the applicant met a citizen of Bahrain who had come to Iran on business and to visit family and friends. Eventually this man proposed to the applicant. She accepted on the condition that he remove her from Iran. The applicant explained that she wanted to leave the country because one of her brothers had been imprisoned in Iran and that because of this she did not feel secure in the country herself. The applicant did not disclose any details about her own imprisonment to this man because it is ‘badly regarded in Eastern countries for a woman to be put in gaol for her political ideas’ and she feared that if she did disclose this information he would not marry her.
Because this man had fallen deeply in love with the applicant he agreed to her conditions and they married on 24 November 1993. Her husband then arranged fake documents so the applicant could depart Iran and on 21 December 1993 they left the country together, the applicant under the name of Nargis Qhanbari. They travelled by plane to Bombay, India.
The applicant states that she then stayed in India for 2 years with a family to learn some Hindi words because her husband planned to take her to Bahrain as an Indian because Iranians were not permitted to travel to Bahrain because of the existence of Iran-backed ‘Hezbollah’ activists in Bahrain.
The applicant’s husband bought an Indian passport for the applicant which stated her citizenship as Indian. On 1 April 1996, with her husband the applicant travelled to Bahrain where she commenced a normal and peaceful life with her husband and his family.
However this happiness did not last long because the applicant discovered her husband was a strong nationalist with an ‘Arabic ideology’. Also he supported the strict Akboond regime in Iran. He opposed all democratic movements in Iran opposed to the Islamic Republic and condemned the applicant’s brother and other family members for their support of such movements.
Additionally the attitude of the applicant’s husband towards her changed when he discovered she was pregnant with a girl and not a boy. Her husband claimed that in Eastern countries too many responsibilities were attached to having a daughter.
On a business trip to Iran the applicant’s husband found out about her past imprisonment in Iran. When he returned to Bahrain his attitude towards her changed dramatically. He bashed her severely, forced her to agree to a divorce, told her to leave Bahrain and claimed she had jeopardized the lives of his family members and also their businesses in Iran and Bahrain. He claimed that if she did not leave Bahrain, he would disclose his involvement in arranging illegal travel documents for her so she could travel from Iran to India and then from India to Bahrain.
Therefore the applicant used a visitor visa her husband had obtained previously in Dubai for her to travel with her husband to Australia. The applicant came here hoping to obtain permanent residency.
The applicant claims it is ‘impossible’ for her to return to Iran because Iranian authorities have already threatened to execute her if she left Iran. Also the applicant has no family members in Iran because they all opposed the regime and fled Iran to save their lives. All family properties have been confiscated by Iranian authorities.
The applicant notes that she ‘escaped’ from Iran with illegal documents which is a crime. Should she return to Iran she will be accused of involvement in anti-Iran activities and will be harmed/mistreated by Iranian authorities, including the prison custodian who the applicant had agreed to marry but did not. She has been identified as a ‘criminal on earth’, a term for individuals who should suffer capital punishment. Accordingly, if the applicant returns to Iran she will be imprisoned for life or executed without trial.
Given the change in circumstances in her relationship with her former husband, the applicant is unable to return to Bahrain. Foreigners living in Bahrain need to be sponsored by a Bahrain national and this avenue is no longer open to the applicant. Also, if the authorities in Bahrain thought the applicant was an Indian or Iranian she would be viewed as a spy or as a member of the Iranian backed Hezbollah group which is engaged in activities considered dangerous to the Emir of Bahrain. Bahrain authorities might also punish her for entering Bahrain on an Indian passport. In Bahrain or India the applicant believes she would be imprisoned for life or executed.
The applicant does not wish to be with her parents in the Netherlands as they are old and ill. She does not want to be a burden on them. She notes that like all other family members, who have managed to escape Iran and who live in Belgium and the Netherlands, she opposes the ideology and policies of the Islamic Republic of Iran.”
Review grounds
In the amended application the Applicant relies upon the following grounds in support of the claim of jurisdictional error. The claims are as follows:
(a)failure to take into account relevant considerations.
Particulars
(i)The Tribunal failed to take into account a relevant consideration, namely the Applicant's sur place claim that she feared persecution for an imputed political opinion as a result of her immediate family obtaining asylum in the Netherlands as refugees from Iran.
(ii)The Tribunal failed to take into account a relevant consideration namely the risk of the Applicant being persecuted upon return to Iran by reason of her membership of a particular social group (Iranians who have sought asylum) or political opinions (the imputed opinions which cause a person to flee Iran).
(b)taking into account an irrelevant consideration.
Particulars
(i) The Tribunal took into account an irrelevant consideration; namely that asylum seekers are not likely to receive ill treatment from Iranian authorities when they can prove that they left Iran legally. While the Tribunal considered that the Applicant had left Iran legally, there was no information before it to permit the conclusion that she would be treated in Iran as having left Iran legally or that she could prove that she had done so.
(c)made findings which were so erroneous, illogical or unreasonable as to demonstrate bad faith.
Particulars
(i) The Tribunal came to the perversely erroneous, illogical or unreasonable conclusion the Applicant could not have left Iran on a fake passport when it found that she had subsequently obtained a fake Indian passport in order to travel to Bahrain, there being no evidence that she could not have travelled to Bahrain on an Iranian passport.
(ii)The Tribunal came to the perversely erroneous, illogical or unreasonable conclusion the Applicant had not attended a demonstration for war veterans in Iran on the basis that:
(A)neither the Applicant 'nor any other family member had been involved in any political activity in Iran prior to her alleged involvement in' the demonstration;
(B)the Applicant 'has identified only chanting slogans and yelling in support of war veterans as the activities she undertook in the demonstration'; and
(C)'apart from standing in a prominent location the Applicant has not identified anything about her or her alleged activities at the demonstration which in the Tribunal's view would single her out for adverse attention from Iranian authorities', which she alleged led to her arrest.
where the Applicant's account of her reason for being involved in the demonstration and having been arrested at the demonstration were very detailed, notwithstanding that the events occurred 10 years earlier. There was no rational basis for rejecting her evidence on the point.
(iii)The findings of fact were made in circumstances where the consequences of error are very grave, including the likelihood of death or torture of the Applicant if she returned to Iran. To make such fundamental errors in those circumstances demonstrates that the Tribunal made the Decision in bad faith.
Failure to take into account relevant considerations
Submissions
The first ground raised by the Applicant, referred to as a failure to take into account what is described as the Applicant's sur place claim. In fact it is not necessarily a sur place claim but simply a claim that the Applicant feared persecution for an imputed political opinion as a result of her immediate family obtaining asylum in the Netherlands as refugees from Iran.
In support of this ground the Applicant referred to the Full Court decision in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184 and in particular referred to paragraph 47 where the court states:
“ … Where however there is an issue raised by the evidence advanced on behalf of an applicant and contentions made by the applicant and that issue, if resolved one way, would be dispositive of the Tribunal's review of the delegate's decision, a failure to deal with it in the published reasons may raise a strong inference that it had been overlooked.”
In the present application it was submitted that there were supplementary submissions and documentary evidence as to the family status of the Applicant in Europe which was provided to the Tribunal after the hearing (court book 84 to 114). It was submitted that that issue was not identified in the Tribunal's reasons. It was specifically submitted that from the outset the issue had been raised by the Applicant and it was submitted that it was "quite remarkable" that the Tribunal did not consider the matter "because the issue was raised". Reference was made to page 46 of the court book where, in the form C application, the following appears:
“… the Iranian authorities have strongly warned me and threatened me to execute me if I left Iran. I got no family members left in Iran, as all of them have opposed and involved in rallies, and other activities against the strict Islamic regime in Iran. All of my family members have fled to other countries to save their lives. …”
Further reference was made to the court book at page 50 where the following appears:
“All of my family members, somehow, have managed to escape from Iran and live in Holland and Belgium. …”
Reference was made to a telephone interview between an officer of the Department and the Applicant. At page 55 of the court book the following notation appears in relation to that conversation:
“I noted that the client claimed her entire family moved to Europe as refugees.”
In the supplementary court book an extract of the transcript on the second day of hearing reveals the following:
“MR MATTHEWS: Okay, not a problem. Are you able to provide me with any documents in relation to your family members living in Europe that would establish clearly for me their status on what basis they’re living in Europe? Are you able to provide me with any documents like that?
INTERPRETER: They’re refugees.
MR MATTHEWS: Would you be able to provide me copies – or the originals, is possible – or their refugee documentation?
INTERPRETER: When I asked them to send their passport to Mr Paul Fisher for the – but it is – be asked, you know, from Netherlands, under what conditions they are living there, and they confirmed, definitely confirmed, that they are refugee status.
MR MATTHEWS: Presumably they could provide photocopies at least of their passports, every page of their passport, which I presume would have refugee visas in them.
…
MR MATTHEWS: Okay. Well, the bottom line is, it should be easy to obtain official documentation in relation to the five family members in the Netherlands and the brother in Finland. Full copies of passports with visas or, you know, documents that will satisfy me about their refugee status in those countries. Whether or not you wish to provide them is up to you. I’m offering you the opportunity and I’m giving you 14 days in which to do that.
…
INTERPRETER: Because they told me that, ‘You’re not allowed to travel intrastate in Iran, from one city, from one place to another, that you have to report and sign a document.’ I left for a period of three years. You have to come on a monthly basis and sign a record and two months later I left the country illegally.
MR MATTHEWS: No, I understand, I understand that very well.
INTERPRETER: Definitely when someone breaks the law after, you know, I return to Iran and they find out about my identity and breaking their law, they will not leave us in peace, particularly if I want to go by myself, knowing that all my family members are overseas.
MR MATTHEWS: But do you – I can understand that the authorities might want to question, might wish to question you, and that something like that might happen. I’m not sure, I’ll have to turn my mind to whether or not, if you return to Iran, I think you’d face a risk of serious harm or persecution.
INTERPRETER: I hope you appreciate that here is a single woman with those in her record, goes to Iran knowing that her brother also in prison and her family members also refugee in other countries. A single woman under this condition, you know what will happen to her. They’re not going to leave her alone. They will probably chop her to pieces.”
(Supplementary court book pp. 78, 79 and 82)
It was submitted that in the extract above, the reference to "brother also in prison", though in the present tense, should properly be regarded as the fact that the Applicant's brother was in prison as the same time as the Applicant and that he, along with the rest of the family, left the country a few weeks after the Applicant.
Those extracts, according to the submissions of the Applicant, reveal that the issue had been clearly raised. The fact of the family being overseas as refugees combined with the fact of the risk of the Applicant returning, knowing that her family were overseas as refugees it was claimed had been "squarely raised".
The court was then taken to the reasons of the Tribunal where it was submitted it had simply passed over or misstated the issue. Reference was made to page 136 of the court book where the following extract appears:
“The Tribunal informed the applicant that it understood authorities might question her if she returned to Iran. However it would have to consider carefully if she would face a real chance of serious harm or persecution if she returned there. The applicant referred to the fact that she would be returning to Iran as a single woman.”
It was submitted that that extract completely missed the point that had been made in the extracts from the transcript referred to earlier in this judgment.
It was submitted that the Tribunal in its reasoning process had simply overlooked the key issues evident from the extracts of the transcript. It was further noted that the Tribunal member clearly raised questions concerning documentation relating to family members of the Applicant in the Netherlands and her brother in Finland, and the question was raised, "Why is it being pursued at all unless it's relevant?"
Reference was made to submissions made after the hearing to the Tribunal where further information was provided to the Tribunal concerning the Applicant's parents applying for asylum in the Netherlands along with their sons and that in May 1996 they were granted permanent status as refugees on humanitarian grounds (see court book page 84).
In the submissions reference was made to the capacity of the Tribunal to make further inquiries with the authorities concerned and the Tribunal was urged to make those inquiries if it was unsatisfied about the status of the Applicant's relatives. There was reference to the evidence of whether or not the Applicant's parents had passports (court book page 89). It was submitted that a misunderstanding concerning the parents arose as they did not have passports initially but were provided with those passports by people smugglers who they used to get them out of Iran.
Documents were enclosed (court book page 107) relevant to the Applicant's relatives' residence status in Holland and Finland, and the specific point was raised in those submissions that if a person's relatives fleeing persecution are granted permanent residence in a third country, then it is not unreasonable for a person such as the Applicant to assume that they are refugees.
Where the Tribunal made a reference (at page 123 of the court book) to the other family members of the Applicant managing to escape to Iran and live in Belgium and the Netherlands, it was submitted this was inaccurate as it was in fact the Netherlands and Finland. No issue is taken as to that inaccuracy, though it was submitted that in this instance there could be no doubt that the rest of the Applicant's family obtained refugee status or the equivalent and that further information was provided to the Tribunal in relation to that issue together with the request that the Tribunal make further inquiries if not satisfied about the family's status.
It was submitted that the relevance of the Applicant's family being refugees was that there would be a risk to the Applicant if she returned to Iran by virtue of her family's status as refugees. Her association with the family may lead to her being regarded as having imputed to her the beliefs which caused her family to flee Iran and seek refugee protection.
Reference was made to a newspaper article by journalist Russell Skelton received by the Tribunal, suggesting difficulties which people face in Iran if they return and are thought to have criticised the government by virtue of having claimed asylum in another country. It was submitted that would operate not simply against the Applicant directly but also by imputation from the fact that her family members have received refugee protection. The article was set out fully in the Tribunal's reasons in the Court Book [p.124 to 125] as follows:
“Detainees arrested on return to Iran
Two Iranian men refused refugee status by Australia after spending two years in detention at Woomera have been arrested by security police on their return to Iran and ordered to appear before a revolutionary Tribunal.
The men, one a converted Christian, said that since returning home they had been exiled by their families, their phones had been tapped, their movements monitored and they had been prevented from obtaining work or a passport.
‘I deeply regret my decision to return, but the Australian authorities gave me no choice. It was either a life sentence behind the razor wire at Woomera, or go back home and take my chances’ said one of the men who asked not to be named for fear of further reprisals against him and his family.
‘I am very afraid. Tehran is not safe for returning detainees, especially if they are Christian. I don’t know what will happen from one day to the next. There is no future for me. My family is under pressure to disown me’ he told The Age, speaking through an interpreter from Iran.
The latest U.S State Department report on Iran says that citizens are not allowed to recent Islam and that ‘apostasy, specifically conversion from Islam, may be punishable by death’. In recent years a number of Christians have disappeared and are believed to have been murdered, the report says.
The man said he had decided to go home because the psychological pressure of being in detention for almost two years had finally got to him.
‘During the riots last year I was badly beaten by the guards and each day people were slashing themselves and trying to kill themselves. I thought nothing can be worse than this but I was wrong’ he said.
A second former detainee said he was interrogated for six hours at Tehran Airport on arrival and ordered to appear before a revolutionary Tribunal, which meets in secret.
He said he had been asked to justify criticism he had made of the Islamic regime while seeking asylum in Australia. He also faces charges of leaving the country illegally.
Iranians living in Australia on temporary protection visas are also concerned about the disappearance of two other male detainees who returned to Tehran. They say one man apparently never left the airport where his family had been waiting for him and the other vanished from his home several days after returning.
This week Immigration Minister Philip Ruddock visits Tehran in a bid to persuade Iran to allow Australia to forcible repatriate up to 330 Iranians.”
It was submitted that despite the fact that the Tribunal devoted significant time and effort dealing with the question of the status of the Applicant's family, it ultimately only referred to the fact that the Applicant would return to Iran as a single woman and not, as claimed in her evidence, by the Applicant, that she would return as a single woman whose brother had been in gaol and whose family had been accepted as refugees.
Relying upon the authority of WAEE referred to earlier in this judgment, it was submitted that this court should draw a strong inference that in the circumstances the inadequacy of the reasons given by the Tribunal should lead the court to conclude that the question of the significance of the relatives having gained refugee status, though pursued in evidence and after the hearing, has been overlooked as it was not mentioned in the reasoning.
Further reference was made to another decision, namely W396/01 v Minister for Immigration and Multicultural Affairs [2002] FCA 455 and in particular the joint judgment of Black CJ, Wilcox and Moore JJ where the court states at [38-39] the following:
“38 Although the ASIO interview is not mentioned, the thrust of the complaint was that the Tribunal failed properly to consider the sur place claim. In any event, this is not a case in which it would be right to require a strict reading of the grounds of review.
39 It is not for this Court to determine whether the ASIO interview or the asylum application has or might come to the attention of the Iranian authorities. Likewise it is not for this Court to decide whether if those matters do come to the attention of the Iranian authorities, there is a real chance they will lead to the persecution of the appellant, given his earlier employment, on the basis of a political opinion real or imputed. It is not for this Court to assess the risk to the appellant but rather to determine whether the Tribunal has done so. In our opinion, for the reasons given, it has not.”
It was submitted that in the present case that decision applies. It was noted that the Full Court had further considered the issue in the matter of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263 where at [58] the court states:
“58 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 – Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the ‘case’ articulated by an applicant if evidence and material which it accepts raise a case not articulated – Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 – 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant – Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. 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 Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [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.”
It was submitted that in the present case the claim was raised and had not been determined by the Tribunal. It was submitted that if successful in relation to the first ground, then that is sufficient basis upon which the decision should be quashed or set aside.
The First Respondent submitted that this ground raised a significant issue, raising as it does an alleged failure of the Tribunal to consider a claim not expressly advanced. It was submitted the claim must emerge clearly from the material before it. Although the Applicant had the assistance of a solicitor and a migration agent at all relevant times, it was submitted it was not claimed she had a fear of persecution arising from the fact that her family had obtained refugee or humanitarian status in the Netherlands or Finland. If there was a distinct claim based on that fact then it was submitted that in this instance it is hardly likely that she would have failed to place it squarely before the Tribunal.
Reliance was placed upon the decision of VAAG v Minister for Immigration and Multicultural and Indigenous Affairs (2004) FCA 1201at [38] where the court states:
“38 It should also be mentioned that the appellant had the assistance of a migration agent at the time when the Tribunal hearing was conducted. If he had a distinct sur place claim, based on his activities in Australia, other than in seeking a protection visa, it is hardly to be supposed that he would have failed to place it squarely before the Tribunal.”
It was submitted that in this case there was no material to indicate the Applicant had a subjective fear of persecution in consequence of the family members obtaining refugee or humanitarian status elsewhere. The evidence before the Tribunal did not suggest the Applicant might be at risk of harm as a consequence of the issue now sought to be advanced and no country information was provided in support of the risk of persecution for that reason. In WAEE it was submitted the court there dealt with a case where the Tribunal failed to deal with an express claim.
It was further submitted that in the present case, whilst reference is made to the Applicant's family in Holland and Finland having achieved refugee/humanitarian status, the material does not disclose the basis upon which the family were accepted. It was submitted there is no duty on the Tribunal to make further inquiries, notwithstanding the invitation and/or request to do so by the Applicant's representative. There is no duty for the Tribunal to make out the Applicant's case. Instead it was submitted that it is incumbent upon the Applicant to put whatever matters it wishes before the Tribunal and for the Tribunal then to make a decision on the basis of that material. In this case the Tribunal has accepted that the family of the Applicant had obtained some status in the Netherlands and Finland and the question remained as to what extent that is relevant to the Applicant's claim.
During the course of submissions on behalf of the First Respondent it was noted that in the court book at page 78 the following appears -
“TO WHOM IT MAY CONCERN
In September 1994 ….. born on 21 May 1951, applied for asylum in the Netherlands. This application was also filed on behalf of her three sons, …. born on 5 June 1980; …. born on 22 May 1981 and ….. born on 28 April 1985.
On 8 May 1996 they were granted a permit to stay as a refugee, and on humanitarian grounds.
In August 1995 ….. born 4 July 1942 applied for asylum in the Netherlands. On 9 April 1987 he was granted a permit to stay aws a refugee and on humanitarian grounds.
Our office represented the family during their asylum procedure.
…. born on 21 May 1970, son of the abovementioned ………….. has been granted a permit to stay as a refugee in Finland.”
In support of the submissions that the claim had not been raised by the Applicant in relation to her family's status as refugees, reference was made to the decision of Gray J in VAAG at [36-38] as follows:-
“36. … It cannot be said that the appellant made before the Tribunal, in any meaningful sense, a sur place claim based on those activities in Australia.
37. To the extent to which he did make a sur place claim, it was based on the fact that he had sought asylum in Australia and the Tribunal dealt with it. The Tribunal was not obliged to refer to every particular item of evidence about each matter that the appellant placed before it.
38. … If he had a distinct sur place claim, based on his activities in Australia, other than in seeking a protection visa, it is hardly to be supposed that he would have failed to place it squarely before the Tribunal.”
The first respondent submitted the Applicant has not put the claim squarely; rather it was just part of the evidence concerning the family of the Applicant who had obtained "some sort of status in another country". It was submitted there was nothing in the material to show the Applicant had a subjective fear due to the family members' position. Instead the claim was based upon the Applicant's own activities, which had been rejected by the Tribunal. Whilst it was accepted that family members had obtained the status in the other countries, there was no country information to suggest there was a risk for that reason and therefore it was not incumbent upon the Tribunal to consider that issue.
Reasoning
In my view the submissions made for and on behalf of the Applicant are correct. A proper reading of the extracts from the material before the Tribunal, which raised at the outset, by the Applicant, the status of her family, which was further the subject of discussion during the hearing and submissions after the hearing, has been sufficiently raised for it to be a matter put squarely to the Tribunal.
In applications of this kind, whilst I accept the submissions made for and on behalf of the First Respondent that it is not for the Tribunal to make the case for an Applicant, it is likewise not appropriate for the Tribunal to ignore what I regard as a relevant fact squarely put, as clearly appears to be the case from the extracts referred to earlier in this judgment in the application for a visa, transcript of the hearing and submissions presented to the Tribunal after the hearing.
I accept that once that material was raised it was then appropriate for the Tribunal to consider that relevant material, providing, as it may do, at least a potential basis upon which the Applicant could claim to have an imputed political opinion based upon the fact that her family had been granted asylum status in the Netherlands and Finland.
I am not satisfied that the claim arising out of the Applicant's family could properly be regarded as a "sur place" claim, though nevertheless it is clearly in my view a claim squarely raised by the Applicant in the material referred to earlier, and having been raised in a manner which I regard as sufficient for the purpose of the application, it should then have been the subject of specific consideration and determination by the Tribunal.
The failure, in my view, of the Tribunal to consider this relevant issue has resulted in jurisdictional error, and accordingly on that ground alone I accept that there is a sufficient basis upon which this court should quash and/or set aside the Tribunal decision.
During the course of the hearing, as indicated earlier, reference was made to correspondence at page 78 of the court book, part of which was referred to, which clearly in my view indicated that the Applicant's family had been granted permit to stay as a refugee. That reference together with the other material leads me to conclude that the claim was properly raised before the Tribunal. I do not take the authorities referred to by the parties as suggesting that claims for asylum should necessarily be interpreted in the same strict manner as pleadings in a civil claim before a superior court. It is sufficient in my view that the claim, as in this case, is squarely raised, although perhaps not as well developed as it may have been by the persons then representing the Applicant.
The status of the Applicant's family, once raised in the manner described, in my view could properly be regarded as being an essential integer of the Applicant's claim, and as such the failure of the Tribunal to address that part of the claim is sufficient to constitute jurisdictional error (see Paul v Minister for Immigration and Multicultural and Indigenous Affairs (2001) 113 FCR 396 at [79]).
The significant adverse credibility findings in relation to the Applicant and in particular the Applicant's role both in Iran and future role in political affairs in Iran do not in my view detract from the conclusion I have reached that there has been jurisdictional error of a kind which justifies setting aside the decision. The claim relating to the status of the Applicant's family is sufficient on its own to at least potentially provide a different outcome and, as indicated, I am satisfied could properly be regarded as an integer of the claim.
Accordingly, it follows that orders should be made of the kind sought by the Applicant.
Other grounds
Although other grounds have been relied upon, I am satisfied in the present case that it is not necessary, having regard to my findings on the first ground, to consider the issue of whether the Tribunal took into account an irrelevant consideration or indeed whether the decision was, as claimed, "so erroneous, illogical or unreasonable as to demonstrate bad faith".
Conclusion
Hence in my view it is sufficient that in this instance it is appropriate for the court to make the orders sought by the Applicant, quashing and/or setting aside the decision of the Tribunal and that the First Respondent pay the Applicant's costs.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 24 February 2006
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