SZMAP v Minister for Immigration and Citizenship
[2009] FCA 545
•26 May 2009
FEDERAL COURT OF AUSTRALIA
SZMAP v Minister for Immigration and Citizenship [2009] FCA 545
MIGRATION – consideration of whether the Refugee Review Tribunal fell into jurisdictional error by failing to give consideration to facts said to give rise to a claim of a well‑founded fear of persecution on the ground of the appellant’s contended membership of a particular social group
Migration Act 1958 (Cth), s 424A
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323
Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265
Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28
NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2005) 144 FCR 1SZMAP v MINISTER FOR IMMIGRATION AND CITIZENSHIP and REFUGEE REVIEW TRIBUNAL
NSD1139 of 2008
GREENWOOD J
26 MAY 2009
SYDNEY (VIA VIDEO-LINK FROM BRISBANE)
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1139 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMAP
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE OF ORDER:
26 MAY 2009
WHERE MADE:
SYDNEY (VIA VIDEO-LINK FROM BRISBANE)
THE COURT ORDERS THAT:
1.The appeal is dismissed.
2.The appellant shall pay the first respondent’s costs of and incidental to the appeal.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NSD1139 of 2008
ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN: SZMAP
Appellant
AND: MINISTER FOR IMMIGRATION AND CITIZENSHIP
First RespondentREFUGEE REVIEW TRIBUNAL
Second Respondent
JUDGE:
GREENWOOD J
DATE:
26 MAY 2009
PLACE:
SYDNEY (VIA VIDEO-LINK FROM BRISBANE)
REASONS FOR JUDGMENT
This is an appeal from a decision of the Federal Magistrates Court of Australia (Driver FM) dated 4 July 2008 dismissing an application for an order for the grant of the constitutional writs of certiorari and mandamus in relation to a decision of the Refugee Review Tribunal (“the Tribunal”) made on 8 February 2008 by which the Tribunal affirmed the decision of the Minister’s delegate to refuse the appellant the grant of a Protection Visa under the provisions of the Migration Act 1958 (Cth).
The appellant is a national of Bangladesh born in 1980. He arrived in Australia on 5 October 2006 and applied for a Protection Visa on 3 August 2007. He claimed to hold a well‑founded fear of persecution should he return to Bangladesh, due to the political opinions he held and expressed in Bangladesh prior to his departure from that country on 4 October 2006 and due to the active role he played in holding various positions in the Bangladesh Nationalist Party (“BNP”) and ultimately membership of the district “Executive Committee” of the BNP for the Noakhali District of Bangladesh.
Having regard to the issues raised in the appeal, it is necessary to examine the claims made by the appellant and the treatment of those claims by the Tribunal.
In his statement dated 2 August 2007, the appellant asserted the following facts as the foundation for his claim of a well‑founded fear of persecution for reasons of political opinion.
After completing secondary schooling in 1996 the appellant was admitted into a college described as the Khalilur Rahman Degree College. At that time, the appellant became involved in the student wing of the BNP described as the Bangladesh Jatiyatabadi Chatra Dal. In 1998, he undertook a Bachelor of Science degree at the college. On 10 June 1998 at approximately 6pm, the appellant was attacked by a group of Awami League cadres at the college. The appellant was severely beaten and taken to Bajra Hospital. He was released after a week. In 1999, he was elected President of the College Committee of Chatra Dal and was actively involved in BNP affairs. At this time, the Awami League was in government in Bangladesh. The appellant protested against the autocratic rule of the Awami League. On 16 February 1999 at approximately 9pm while returning home, the appellant was attacked by activists who attempted to kill him. He was beaten seriously and left unconscious. He was taken to hospital and discharged after 10 days. Representatives of the BNP protested to the police about these acts. On 15 July 2001, the Prime Minister of Bangladesh resigned and transferred power to a caretaker government so as to facilitate a parliamentary election. That election occurred on 1 October 2001. The appellant worked for a BNP candidate in that election. The Awami League candidates were the primary opponents. The appellant campaigned door‑to‑door seeking voter support for the BNP candidate. That candidate was elected. The BNP‑led coalition secured a two‑thirds majority in the parliament and formed government under the Prime Ministership of the BNP leader, Begum Zia.
In 2002, the appellant became the joint secretary of the Sonai Muri Thana BNP. The appellant became very well known. The Awami League resisted the programs of the BNP government. The appellant was targeted by Awami League supporters. In 2005, the appellant became one of the Executive Members of the District Committee and became very active in politics. The appellant was further targeted by supporters and allies of the Awami League. On 27 June 2006, the Awami League activists caused a false charge to be filed against the appellant. By October 2006 it was apparent to the appellant and Bangladeshi voters that a transition of power would take place from the BNP government to a caretaker government. The appellant was concerned that due to his long involvement in BNP politics he would be subject to hostile steps taken by the caretaker government against him. Accordingly, on 4 October 2006 he left Bangladesh for Australia on a student’s passport. On 11 January 2007, a state of emergency was declared by the President of Bangladesh. The caretaker government has arrested approximately 200,000 political leaders and activists in Bangladesh.
Having regard to these matters, the appellant contended that he would be persecuted for his political opinions should he return to Bangladesh.
In the course of the review before the Tribunal the appellant, through his adviser, provided a letter to the Tribunal dated 15 December 2007 which enclosed a letter from the President of the Noakhali District of the BNP dated 1 November 2007. That letter described the appellant as a person who was “an active voice of the [BNP]”. It said that the appellant had held various positions within the party at Thana and district level and that from 2005 until his departure from Bangladesh, he was an elected member of the Executive Committee of the Noakhali District of the BNP. The letter says that the caretaker government had arrested the BNP party leader Begum Zia without any formal charges and that many other promising leaders had been arrested. The appellant’s adviser provided material to the Tribunal contending that the caretaker government had arrested people in the name of fighting corruption and had particularly focused upon the BNP and its leaders and activists so as to torture them and disqualify them for the purposes of a future election.
On 18 December 2007, the appellant gave oral evidence before the Tribunal and presented arguments in support of his contentions.
On 3 January 2008, the Tribunal wrote an extensive letter setting out those matters that the Tribunal considered would, subject to the appellant’s comments, be the reason or a part of the reason for affirming the decision of the Minister’s delegate. That letter addressed aspects of the facts and circumstances relied upon by the appellant and also put to the appellant information based upon a report from the United States Department of State and information provided on 3 May 2007 by the Department of Foreign Affairs and Trade. On 17 January 2008 [although the letter at AB160 is mistakenly dated 17 January 2007], the appellant through his advisers responded to that letter.
The central contention in the appeal is that the Tribunal failed to have regard to matters put to the Tribunal in that letter and in particular the matters contained in paras 5, 6, 7 and 8 of that letter. The letter is in these terms:
We refer to your letter dated 3 January 2007. We also confirm that you have extended [a] further two working days in reply the response [to respond].
On behalf of the client we make the following comments for your kind consideration:
1.It is correct that the applicant lived in Dhaka for a number of months which is less than twelve months. The applicant on and off was living in Dhaka. Any alleged inconsistency arises from the different forms of questions asked or [on] different occasions.
2.The applicant said that he was very nervous during the hearing of the Tribunal and could not recall the actual date of the lodgment of the cases in that environment.
3.The applicant thought during caretaker role he will [would] be able to return to Bangladesh but the current caretaker government has extended its time without Constitutional provisions.
4.The Tribunal’s use of the 1998 US Department of State reports in deciding the fate of the applicant’s claim in 2007 is not logical. This report is outdated and should not be considered [by] the RRT.
5.The caretaker Government in its crackdowns has been arresting officials of all parties and even murdering them. The fact that the political parties are not able to engage in political activity against each other does not negate the fact that the political parties including the BNP are being persecuted by the current caretaker Government. The DFAT report is unable to comprehend the seriousness of the situation on the ground being faced everyday by the political workers and general public. It is the equivalent of saying that the fascists made the trains run on time. The report says that corruption is being addressed but it ignores that people are being falsely arrested and persecuted and even murdered by the caretaker Government.
6.In a completely repressed state, there will be no political activity. The DFAT report suggests that, this is a good thing even it is [if it] means all of the previous political leaders are persecuted or murdered.
7.The applicant had a profile of sufficient important[ce] that there will be a real chance that he will be persecuted in Bangladesh by the Caretaker Government [having regard to] the extent of the Crackdown. The fact that [the] applicant had been for a considerable time in Australia would add to his exposure of a risk of harm.
8.This is because the caretaker government is particularly severe on those people that the Government considers my [may] have been involved in agitating against it in other countries.
As such we believe the applicant will be persecuted upon returning to Bangladesh.
…Md. Sirajul Haque
For MS Haque and AssociatesThe Tribunal examined the appellant’s claims and reached these findings and conclusions.
The applicant did not impress the Tribunal as a credible witness. In reaching this view the Tribunal has had regard to the following reasons. First, the applicant belatedly revealed at the hearing that six months before his departure from Bangladesh he moved to Dhaka to live at a friend’s house in order to avoid being harmed by his political opponents. This information contradicted the information he had provided in his application for a protection visa, which indicated that he lived at the same address from January 1991 until shortly before his departure from Bangladesh. Moreover, the applicant made no mention of his move to Dhaka in January 2006 in the statement he submitted in support of his application for a protection visa. … The inconsistent evidence submitted by the applicant regarding his address and movements in Bangladesh casts doubt on his credibility and the credibility of his claims. (AB182)
The Tribunal examined aspects of that matter further and ultimately concluded:
The Tribunal is not prepared to accept that the applicant had moved to Dhaka in January 2006 for fear of his safety as he claimed. (AB183)
The Tribunal further found in these terms:
Second, in his written statement to the Department the applicant had claimed that a false case was filed against him on 27 June 2006. At the hearing, however, when he was repeatedly asked if anything bad happened to him after 1999, he made no mention of any false cases having been filed against him. (AB183)
The Tribunal further considered aspects of that question in the context of all the evidence and concluded:
The applicant’s evidence regarding the false case cast doubt on his credibility and the credibility of his claim that a false case was filed against him in Bangladesh. (AB183)
Thirdly, as to the appellant’s claims to have been involved in activities of the BNP and a member of the BNP since 1996, the Tribunal asked the appellant a series of questions about the extent of his engagement and the level of his knowledge and understanding of the BNP’s history and politics. The Tribunal thought that having regard to the level of the appellant’s education, the appellant would be knowledgeable about those matters particularly having regard to his contended dedicated involvement with the party for over a decade. The Tribunal concluded that the appellant did not exhibit any real depth of knowledge about the BNP and its activities.
Fourthly, the Tribunal noted that the appellant had waited for a period of 10 months since his arrival in Australia before applying for a Protection Visa. The Tribunal examined the facts and submissions surrounding that matter and expressed a view that it found it difficult to understand the explanation for the delay. The Tribunal then made this sequence of observations:
For all the above reasons, the applicant did not impress the Tribunal as a truthful and credible witness. The totality of his evidence shows a propensity to tailor his evidence in a manner which achieves his own purpose.
The Tribunal, therefore, does not accept that the applicant moved to Dhaka in January 2006 as a result of threats or any other reason that threatened his safety.
The Tribunal does not accept that any false cases were lodged against him in Bangladesh in 2006 or at any other time.
The Tribunal does not accept that the applicant was a leader or a high level BNP activist with any significant political profile.
Given the lack of credibility within the applicant’s evidence, the Tribunal does not give any weight to the purported letter from the President of the Noakhali District branch of the BNP relating to the applicant’s claimed positions within the BNP. (AB184)
Having made those observations, the Tribunal expressed its acceptance of certain other matters. The Tribunal said this:
That said [the above sequence of observations], the Tribunal is prepared to accept that the applicant was a low level member of the BNP in Bangladesh. The Tribunal is also prepared to accept that he was assaulted on two separate occasions in the late 1990s. Apart from the false case and the threats, claims which the Tribunal has already rejected, the applicant did not claim to have suffered any other harm in the following seven years that he remained in Bangladesh.
This suggests that the applicant’s chance of facing harm at the hands of his political opponents is remote. (AB184)
The Tribunal then said this:
This view is strengthened by the independent information before the Tribunal in relation to the changes in Bangladesh’s political landscape. As it was put to the applicant at the hearing and in the Tribunal’s s.424A letter, DFAT has advised that politically‑motivated violence has all but disappeared under the Caretaker Government presently in power in Bangladesh. As it was put to him, DFAT has advised that the political persecution of opponents which has been practised in the past by both the BNP and the Awami League has ceased under the State of Emergency which has deprived all parties of the machinery of state which they had used corruptly for political persecution and personal vendettas conducted in the name of politics. (AB184)
As to the threats confronting individuals who had been politically active at particular levels within the Bangladesh society, the Tribunal at AB184 and AB185 said this:
The applicant commented that ever since taking power, the Caretaker Government has arrested 200,000 people, including leaders and high level activists. His representative, in his post hearing response [the letter from MS Haque and Associates incorrectly dated 17 January 2007], also stated that the Caretaker Government in its crackdowns has been arresting officials of all parties and even murdering them. He stated the fact that political parties are not able to engage in political activity against each other does not negate the fact that political parties including the BNP are being persecuted by the current Caretaker Government.
These comments do not affect DFAT’s assessment regarding the disappearance of politically‑motivated violence in Bangladesh.
The Tribunal then concluded at AB185:
Having regard to that advice, the Tribunal does not accept that there is a real chance that the applicant will be harassed, attacked, tortured, killed or otherwise persecuted by political opponents for reasons of his political opinion if he returns to Bangladesh.
The Tribunal made further conclusions at AB185 as to the threat confronting politically active individuals in Bangladesh. It said this:
As it was put to the applicant at the hearing, the independent information before the Tribunal indicates that the authorities have not targeted other than very high profile members of the BNP, the Awami League or their affiliates. The party members they have pursued appear to have been targeted because of corruption or criminal activity.
At the hearing, the applicant’s representative stated that only 60 or 70 “top leaders” have been arrested and that the rest of those arrested are activists from Thana and district levels. When it was put to him that the information consulted by the Tribunal did not suggest this to be the case, he said he would provide information or evidence to support this claim. He also claimed that he had read somewhere that the new regime had a hidden agenda of targeting both the BNP and the Awami League. Neither the applicant nor his representative provided any evidence to back these claims.
The Tribunal has rejected the applicant’s claims of being a leader or a high level member of the BNP and does not accept that he had a significant political profile in his locality, district or at any other level. The Tribunal prefers the independent evidence referred to above and is not satisfied, given the applicant’s low political profile, that there is a real chance that the applicant will be persecuted within the meaning of the Convention if he returns to Bangladesh in the foreseeable future.
The Tribunal then considered the extent of the restrictions imposed on political parties under the state of emergency and said this:
… the Tribunal considers that in the context of the situation in Bangladesh these restrictions are appropriate and adapted to achieving a legitimate object the pursuit of which is required in order to protect or promote the general welfare of the State and its citizens.
As referred to above, the political persecution of opponents has ceased under the State of Emergency which has deprived all parties of the machinery of state which they had used corruptly for political persecution and personal vendettas conducted in the name of politics. (AB185)
The Tribunal then reached this conclusion:
The Tribunal does not accept on the evidence before it that the restrictions on political activity imposed as part of the State of Emergency in Bangladesh constitute such an infringement of political freedom as to lead to the conclusion that there is a real chance that the applicant will face persecution involving ‘serious harm’ as required by paragraph 91R(1)(b) of the Act by virtue of his inability to engage in political activity at the same level he was previously engaged in for the duration of the State of Emergency if he returns to Bangladesh now or in the reasonably foreseeable future. (AB185)
The appellant by his amended application before the Federal Magistrates Court contended that the Tribunal had engaged in jurisdictional error in exercising the review function by failing to consider “an integer” of the appellant’s claim of a well‑founded fear of persecution. The appellant contended that by his response of 17 January 2008 [mistakenly dated 17 January 2007], he “squarely” put to the Tribunal that the caretaker government in Bangladesh is “particularly severe” on those people the government considered to have been involved in agitating against it in other countries. The appellant contended that notwithstanding the Tribunal’s adverse findings as to credit, the Tribunal nevertheless accepted that the appellant was a “low level member” of the BNP in Bangladesh and had been assaulted on two occasions in the 1990s. The appellant contended that having regard to the BNP finding, the Tribunal erred in the exercise of its jurisdiction by failing to consider his sur place claim which was alternatively described as a claim of a real chance of persecution as a member of a “particular social group” defined as a group of individuals who exhibit two characteristics: first, they are members of a major political party in Bangladesh; and secondly, they have lived in Australia for a considerable time. An individual from that particular social group may be perceived, not as a remote possibility but as a real chance, as an agitator and thus suffer a real risk of persecution at the hands of the caretaker government upon return.
Federal Magistrate Driver considered the treatment by the Tribunal of the evidence concerning the conduct of the caretaker government towards individuals who had been politically active and noted the comments of the Tribunal at AB184 and AB185. At [22] of the reasons, Federal Magistrate Driver said this:
In my view, there can be no doubt that the Tribunal considered all of the applicant’s claims, including the suggestion raised by the representative in response to the s.424A letter, that the applicant would be at risk as a suspected agitator. This was not a separate claim but merely an additional evidentiary assertion. While the Tribunal did not deal expressly with the suggestion that persons absent from Bangladesh for a significant period might be harmed as opponents of the present regime should they return, that suggestion was dealt with by reasoning of greater generality in the Tribunal’s reasons.
There was nothing before the Tribunal to suggest that anyone returning to Bangladesh from overseas after a considerable absence would be suspected of being an agitator. Logically, something more was required. If the applicant had actually been involved in activities in Australia agitating against the present Bangladesh regime then that would have been a relevant factor. If the applicant had had a sufficiently high political profile in Bangladesh as to be regarded as a regime opponent of significance on his return, that would also have been a significant factor. If the applicant had intended to agitate against the present regime on return to Bangladesh that would also have been significant.
However, there was no evidence that the applicant had been involved in any agitation against the regime while outside Bangladesh or that he intended to agitate on his return there. The Tribunal found that the applicant did not have a political profile of significance. It was, in my view, inherent in that reasoning that the applicant’s fear of being suspected as an agitator upon his return was not well‑founded.
[emphasis added]
The appellant criticises that passage of the Federal Magistrate’s reasons on these grounds. Firstly, the appellant’s particular social group claim was a separate claim, not merely an additional “evidentiary” limb of the claim of a well‑founded fear of persecution for reasons of political opinion. Secondly, although the Federal Magistrate recognised that the Tribunal failed to “expressly” deal with the claim that persons outside Bangladesh (and in this case in Australia) for a significant period might be regarded as suspected agitators against the regime, the Federal Magistrate failed to find that the claim was “sufficiently raised” and erred in concluding that a claim so raised could properly be addressed by the Tribunal within general findings relating to a broader claim of persecution for reasons of political opinion. Therefore, the particular social group claim ought to have been separately addressed and made the subject of discrete findings. The appellant says a separate particular social group claim is “sufficiently raised” on the material as the appellant placed particular emphasis on his presence in Australia. The appellant says the unaddressed particular social group claim is different from the more general claim rejected by the Tribunal. It follows, it is said, that the Tribunal failed to be satisfied of a well‑founded fear of persecution without taking account of the “totality of the appellant’s circumstances” by failing to analyse the special or particular features of the appellant’s membership of the BNP coupled with his opportunity, external to Bangladesh, to pursue his political beliefs with the consequential risk to him of being perceived as an agitator upon his return.
The second ground of appeal relied upon by the appellant intersects with the first. By ground 2, the appellant says that the Federal Magistrate erred by describing as a mere additional evidentiary assertion, a claimed risk of harm based on perceptions in the eyes of individuals within the caretaker government that a member of a political party formerly in exile and returning to Bangladesh would be an agitator against the regime.
Having regard to these contentions, the question is whether the Federal Magistrates Court fell into error by failing to find jurisdictional error on the part of the Tribunal in the treatment of the appellant’s claims raised before it.
The answer to that question is to be found in the actual steps the Tribunal undertook. The Tribunal isolated each of the claims in the appellant’s statement of 2 August 2007, examined documents put to the Tribunal and considered the elements of the appellant’s oral evidence. The Tribunal referred to its s 424A letter to the appellant of 3 January 2008 and quoted extensively from the adviser’s reply of 17 January 2008 including paras 5, 6, 7 and 8 of that letter. The essential foundation of the appellant’s claim, on the facts, to hold a well‑founded fear of persecution for reasons of political opinion led to the findings set out at [12], [13], [14], [15], [17], [180], [19], [20], [21], [22], [23] and [24] of these reasons. Those findings expressly deal with the appellant’s central contention that he was a high profile activist within the BNP and by reason of that engagement, he would suffer persecution should he return. The Tribunal was not satisfied of that claim.
The Tribunal was satisfied that the appellant had been a “low level member” of the BNP in Bangladesh and had on two occasions suffered harm by reason of assaults in the late 1990s. The Tribunal noted that independent country information suggested that politically motivated conduct had abated. The Tribunal noted the appellant’s response of contentions concerning significant arrests of 200,000 people in Bangladesh including arrests of “leaders and high level activists” and the murder of some political officials. The Tribunal also noted the appellant’s contention that although 60 to 70 “top leaders” had been arrested, many officials at district level had also been arrested. Those arrests suggested low level interception by the regime. As the findings recited at [17] and [22] (of these reasons) show, the Tribunal was not satisfied of the appellant’s claims of being a leader or high level member of the BNP or that, on the evidence, he had a significant political profile in his locality or at any other level.
It is true that the Tribunal did not isolate the elements of paras 7 and 8 of the adviser’s letter of 17 January 2008 and address whether the additional consideration that the appellant had been in Australia for a considerable time “would add to his exposure of a risk of harm” as contended or that the caretaker government would consider the appellant as someone who had been external to Bangladesh and would be likely to be an agitator upon his return.
Those passages were put to the Tribunal on the express footing that “the applicant had a profile of sufficient important[ce] that there will be a real chance that he will be persecuted in Bangladesh”. That was the central matter determined by the Tribunal unfavourably to the appellant. The findings of the Tribunal dealt with it. All the claims upon which a well‑founded fear of persecution was said to rest arising out of the appellant’s engagement with the BNP were rejected by the Tribunal. Having done so, the Tribunal did not need to deconstruct each integer of that part of the adviser’s letter addressing the contended particular social group claim and make findings about those facts. Those matters upon a proper construction fell expressly within the appellant’s claims rejected by the Tribunal. Plainly enough, not each and every statement of fact made in a s 424A response need be separately addressed by the Tribunal when it is clear that the Tribunal has engaged on each of the central matters put to it in support of the contended Convention status.
The Tribunal is required to set out its findings on those questions of fact which it considers material to the decision and the reasons adopted for reaching that decision. An examination of the reasons of the Tribunal in this case reveal that the Tribunal did not accept the real premise of the appellant’s contended fear of persecution. A complaint that the Tribunal has not made a finding of fact on a matter of fact put to it by the appellant does not give rise to jurisdictional error (Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 per McHugh, Gummow and Hayne JJ at [68] and [89]). The Federal Magistrate correctly concluded that the contended additional and separate consideration put to the Tribunal based on a combination of the significance of the appellant’s role in the BNP and a period of residence in Australia, was taken into account in reaching the “higher level” and governing findings concerning the appellant’s role in the BNP and the extent to which his engagement with the BNP would present a real risk of harm to him. In that sense, there was no error in the exercise of the Tribunal’s statutory powers (Yusuf [91] and [82] per McHugh, Gummow and Hayne JJ). As French, Sackville and Hely JJ observed in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at 641 at [47]:
It may be that it is unnecessary to make a finding on a particular matter because it is subsumed in findings of greater generality or because there is a factual premise upon which a contention rests which has been rejected.
In this case, the critical factual premise on which paras 7 and 8 of the appellant’s adviser’s letter rested, was rejected. Findings concerning the level of engagement of the appellant in the BNP and matters of fact going to a well‑founded fear of persecution by reference to that question, were subsumed within the higher level findings.
The Tribunal is required to isolate and consider those claims said to give rise to a well‑founded fear of persecution properly arising on the material before it. One additional fact, taken in conjunction with a finding of the appellant’s low level participation in the affairs of the BNP, said to ground such a fear was the considerable time the appellant spent in Australia. This consideration was said to give rise to the entirely separate claim based on the appellant’s membership of a particular social group. The Federal Magistrate correctly found that no such separate claim was raised. No such contention was put to the Tribunal, in those terms. The additional fact was a feature of the appellant’s claim of a well‑founded fear of persecution for reasons of political opinion. The Tribunal was not required to deconstruct the additional fact put to it and hypothesise a separate class of claim based on membership of a particular social group. The Tribunal’s approach to the exercise of its jurisdiction in that regard is entirely consistent with the principles in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389. As Gummow and Callinan JJ observe at [24], the argument must be a substantial and clearly articulated one which relies upon established facts. In this case, the foundation facts were not accepted and thus not established and the matter relied upon by the appellant was not a substantial and clearly articulated argument. As Cooper J observed in SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 at [19] the alternative case “… had to arise squarely on the materials available to the RRT before it had a statutory duty to consider it. That is, it had to arise squarely on the history of past events and the account and justification of present fears”.
While the Tribunal is not to limit its resolution of the case before it simply on the footing articulated by an applicant if evidence and material, accepted by the Tribunal, raises a case not articulated (Paramananthan v Minister for Immigration and Multicultural Affairs (1999) 94 FCR 28 at 63, per Merkel J), the unarticulated claim must be raised “squarely” on the available material in the sense that it must be “… 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” (NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No. 2) (2005) 144 FCR 1 at 18 and 19 [58]).
Accordingly, the Tribunal did not fall into jurisdictional error by failing to isolate a separate particular social group claim in reaching its decision. The Federal Magistrate did not err by failing to find jurisdictional error on the part of the Tribunal.
Accordingly, the appeal must be dismissed. The appellant shall be ordered to pay the costs of the first respondent of and incidental to the appeal.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Greenwood. Associate:
Dated: 26 May 2009
Counsel for the Appellant: Mr J Azzi Solicitor for the Appellant: Appellant not represented by Solicitor Counsel for the Respondents: Mr J Mitchell Solicitor for the Respondents: DLA Phillips Fox Lawyers
Date of Hearing: 5 November 2008 Date of Judgment: 26 May 2009
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