SZTSM v Minister for Immigration

[2015] FCCA 583

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZTSM & ORS v MINISTER FOR IMMIGRATION & ANOR [2015] FCCA 583

Catchwords:
MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether there was before the RRT an issue whether on return to her country of origin the applicant would not express antigovernment political opinions and if not whether that would be because it was not in the nature of the applicant to publicly express political opinions – whether the RRT was obliged to give the applicant notice of such issue – whether the RRT gave the applicant notice of that issue – jurisdictional error.

MIGRATION – Application for judicial review of decision of Refugee Review Tribunal (RRT) – whether applicant claimed fear of persecution based on her being afraid to express privately antigovernment political opinion – whether RRT considered such claim – whether if such claim was made whether the applicant abandoned the claim – jurisdictional error.

Legislation:

Migration Act 1958 (Cth), s.425

Commissioner for Australian Capital Territory Revenue v Alphaone Pty [1994] FCA 1074; (1994) 49 FCR 576
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389
S395 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473

SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152

SZHKA v Minister for Immigration [2008] FCAFC 138
SZSRB v Minister for Immigration & Anor [2013] FCCA 1382

SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205

First Applicant: SZTSM

Second Applicant: SZTSN

Third Applicant: SZTSO

Fourth Applicant: SZTSP

Fifth Applicant: SZTSQ

Sixth Applicant: SZTSR

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: REFUGEE REVIEW TRIBUNAL

File Number: SYG 3265 of 2013

Judgment of: Judge Manousaridis

Hearing date: 15 July 2014

Delivered at: Sydney

Delivered on: 18 March 2015

REPRESENTATION

Solicitors for the Applicants: Mr N Dobbie of Dobbie and Devine Immigration Lawyers Pty Ltd

Counsel for the Respondents: Mr M Smith

Solicitors for the Respondents: DLA Piper Australia

ORDERS

1. The decision of the second respondent made on 10 December 2013 affirming the decision of the delegate of the first respondent made on 21 December 2012 not to grant the applicants protection visas is quashed.

2. The second respondent determine according to law the application made to it to review the decision of the delegate of the first respondent made on 21 December 2012 not to grant the applicants protection visas.

3. The first respondent pay the applicants’ costs.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3265 of 2013

SZTSM

First Applicant

SZTSN

Second Applicant

SZTSO

Third Applicant

SZTSP

Fourth Applicant

SZTSQ

Fifth Applicant

SZTSR

Sixth Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. Two questions arise in this application for judicial review. The first is whether there was before the second respondent (Tribunal) an issue that was not before the delegate of the first respondent (Minister) which the Tribunal decided adversely to the first applicant (applicant) without the Tribunal’s first giving the applicant notice that it might determine that issue adversely to the first applicant (applicant).[1] The second question is whether there was an element of the applicant’s claims for protection which the Tribunal failed to consider.

   [1] There are other applicants.  They applied for a protection visa as members of the same family unit of the first applicant.

2. To properly comprehend these two questions, it will be necessary to set out the applicant’s claims for protection, and the reasons the delegate and the Tribunal rejected the applicant’s claims for protection.

The applicant’s claims for protection

1. The applicant is a national of Fiji. She arrived in Australia in 1999, together with her children, as a dependent of her husband who had been granted a temporary 457 visa. The applicant applied for a protection visa in 2012.

2. The applicant claimed she feared returning to Fiji for a number of reasons. Relevant to the application before me is the applicant’s claim based on her holding a political opinion adverse to the military government of Fiji. The applicant claimed authorities in Fiji would not protect her because there “is no freedom of speech and lack of respect for individual’s opinion”.[2]

   [2] CB177

3. Also relevant to the application before me are the claims made in the following passage contained in the applicant’s written application for a protection visa (emphasis added):[3]

   There is no equality of men and women and fair play. Instability in the leadership cannot guarantee our future. Facing the problems the citizens of Fiji are facing now, if I am unable to find work, difficult to care for my family, I won’t be able to voice my opinion publicly or even to some individuals, my frustrations and worries even though if it is right cannot be voiced out otherwise will receive cruel treatment and punishment. Very insecure and can’t really trust anybody.

   [3] CB175

The delegate’s and Tribunal’s decisions

1. The delegate refused to grant the applicant a protection visa. The delegate found that, although he understood the applicant and her family members wished to remain in Australia where they have resided for several years and have integrated into the community in which they live, the delegate was unable to find that the applicant and her family will face any harm or mistreatment amounting to persecution on their return to Fiji.

2. The Tribunal accepted the applicant held political opinions adverse to the Fijian military regime.[4] The Tribunal was not satisfied, however, there was any information before it to indicate the applicant would take any steps to express that opinion if she returned to Fiji.[5] For that reason, the Tribunal concluded that if the applicant were to return to Fiji she would not seek to make her political opinion known in public and that, as a consequence, there is no real chance she would suffer serious harm for such reason.[6] The Tribunal further said:[7]

   I believe [the applicant] would refrain from expressing her opinion in public not because of a fear of the consequences and a need for discretion but rather because it is not in her nature to reveal her thoughts in this way.

   [4] CB289, [20]

   [5] CB289, [20]

   [6] CB289, [21]

   [7] CB289, [21]

First ground – Failure to comply with s.425

1. The applicant claims the Tribunal failed to comply with s.425 of the Migration Act 1958 (Cth) (Act). Its failure consisted in making a finding about a matter adverse to the applicant that was not an issue before the delegate without first raising with the applicant the possibility the Tribunal may make such finding. The finding was that it was not in the applicant’s nature to reveal her thoughts in public in Fiji.

2. The Minister does not dispute the Tribunal did not raise with the applicant the possibility of making this particular finding. The Minister submits, however, that the finding forms part of its determination of a broader issue the Tribunal squarely raised with the applicant, namely, whether the applicant is likely to protest in Fiji. In any event, the Minister submits the finding was simply a factual finding that was made; it was not an “issue” in the relevant sense. The Minister relies on a passage from the reasons of judgment of Gray J in SZHKA v Minister for Immigration in which his Honour distinguished between “exposing every aspect of the reasoning process and making known to the applicant the issues that the Tribunal member sees as arising” and in which his Honour noted that it may not be easy to recognise the distinction in all circumstances.[8] The Minister submits that the Tribunal’s finding that it was not in the applicant’s nature to voice her opinion publicly formed part of the Tribunal’s reasoning process in affirming the delegate’s decision; it was not an issue the Tribunal considered as arising in its consideration of the applicant’s claims.  

   [8] SZHKA v Minister for Immigration [2008] FCAFC 138 at [7]

The principles in SZBEL

1. To resolve the competing submissions, it will be necessary first to refer to the principles declared by the High Court in SZBEL, which may be summarised as follows:[9]

   a)At common law, a duty to accord procedural fairness consists in providing to the person likely to be affected by the decision an opportunity to put information and submissions to the decision-maker in support of the outcome the persons seeks; and to rebut or qualify by submitting further information and comment and submission in relation to material that is adverse to the person.[10]

   b)The duty extends to the decision-maker identifying to the person likely to be affected “any issue critical to the decision which is not apparent from its nature or the terms under which it is made”, and advising the person to be affected “of any adverse conclusion which has been arrived at which would not obviously be open on the known material”.[11]

   c)Section 425 of the Act defines the nature of the opportunity to be heard that is to be given to an applicant for review by the Tribunal.[12] It requires the Tribunal to invite the applicant to “give evidence and present arguments relating to the issues arising in relation to the decision under review”. Those issues will not be sufficiently identified in every case by describing them simply as whether the applicant is entitled to a protection visa.[13]

   d)The issues that arise in relation to the decision are to be identified by the Tribunal. If “the Tribunal takes no step to identify some issue other than those that the delegate considered dispositive, and does not tell the applicant what that other issue is, the applicant is entitled to assume that the issues the delegate considered dispositive are “the issues arising in relation to the decision under review”.”[14]

   e)There may be cases where the Tribunal’s statements or questions during a hearing sufficiently indicate to an applicant that everything he or she says in support of the application is in issue.

   That indication may be given in many ways. It is not necessary (and often would be inappropriate) for the Tribunal to put to an applicant, in so many words, that he or she is lying, that he or she may not be accepted as a witness of truth, or that he or she may be thought to be embellishing the account that is given of certain events. . . . But where . . . there are specific aspects of an applicant’s account, that the Tribunal considers may be important to the decision and may be open to doubt, the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted.[15]

   [9] See SZSRB v Minister for Immigration & Anor [2013] FCCA 1382 at [46]

   [10] SZBEL at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

   [11] SZBEL at [29]. The quoted passages are from Commissioner for Australian Capital Territory Revenue v Alphaone Pty [1994] FCA 1074; (1994) 49 FCR 576 at 591-592 (Northrop, Miles and French JJ).

   [12] SZBEL at [33]

   [13] SZBEL at [34]

   [14] SZBEL at [35]

   [15] SZBEL at [47]

2. These principles may be reduced to the following propositions:[16]

   a)Subject to b), the only issues that will be before the Tribunal on an application for review of a delegate’s decision will be those which the delegate regarded as dispositive of the applicant’s claim for a protection visa.

   b)The Tribunal, however, is not bound to decide an application of review by reference to the issues the delegate considered dispositive; subject to c), the Tribunal is free to identify additional or different issues which it may consider to be dispositive or potentially dispositive of the applicant’s claim for a protection visa.

   c)The Tribunal can dispose of an application for review on the basis of additional or different issues only if the Tribunal has sufficiently alerted the applicant that the Tribunal may decide the application for review on the basis of the additional or different issues, and has provided the applicant an opportunity “to give evidence and present arguments relating to the issues arising”.[17]

   d)What the Tribunal must do to adequately alert the applicant that it may decide the application for review on the basis of additional or different issues will depend on the circumstances of the case. Where the additional or different issues on which the Tribunal may decide an application for review is the Tribunal’s not accepting all or part of the applicant’s account which the delegate accepted, “the Tribunal must at least ask the applicant to expand upon those aspects of the account and ask the applicant to explain why the account should be accepted”.[18]

   [16] See SZSRB v Minister for Immigration & Anor [2013] FCCA 1382 at [47]

   [17] Section 425 of the Act

   [18] SZBEL at [47]

Issues

1. Four questions, therefore, arise:

   a)To what issue or issues did the Tribunal’s finding relate?

   b)Was the issue critical to the Tribunal’s decision to affirm the delegate’s decision not to grant the applicant a protection visa?

   c)If so, was it an issue that was dispositive in the delegate’s reasons for refusing to grant the applicant a protection visa?

   d)If not, did the Tribunal take sufficient steps to bring to the applicant’s notice the existence of the issue and afford the applicant sufficient opportunity to make submissions in relation to the issue?

To what issue did the Tribunal’s finding relate?

1. The applicant submits the issue to which the Tribunal’s finding related was the applicant’s nature, that is, whether it was in the applicant’s nature to express in public her political opinions. The Minister, on the other hand, submits the issue was whether the applicant would publicly express her political opinions in Fiji. In my opinion, neither of these issues was the issue to which the Tribunal’s finding was directed.

2. The issue to which the Tribunal’s finding was directed was similar to that which the High Court considered in S395 v Minister for Immigration and Multicultural Affairs.[19] In S395 the question was whether the Tribunal had considered the claim of persecution on the assumption that the applicants could avoid persecution by modifying their behaviour in their country of nationality. The High Court held that in assessing whether there was a real chance an applicant would suffer persecution, the question the Tribunal must determine is “what may happen if the applicant returns to the country of nationality; it is not, could the applicant live in that country without attracting adverse consequences”.[20]

   [19] (2003) 216 CLR 473

   [20] (2003) 216 CLR 473 at page 500, [80] (Gummow and Hayne JJ)

3. The same issue arose in the application before the Tribunal in this case. The Tribunal found there was no information that suggested the applicant would take steps to publicly express her anti-government political opinions if she returned to Fiji. Given that finding, the Tribunal was of the view that an additional issue arose; and that was whether the applicant’s unwillingness to publicly express her antigovernment opinion would be due to her fearing harm, or whether it would be due to some other reason. The Tribunal found it would be due to some other reason, that reason being what the Tribunal found to be the applicant’s nature.

Was the issue to which the finding related critical to the Tribunal’s decision?

1. The issue to which the finding related was critical to the Tribunal’s determination of the applicant’s claim before it. To have simply found that the applicant did not intend publicly to express antigovernment political opinions if she returned to Fiji would not necessarily have disposed the application for review before the Tribunal; the possibility would have remained that the applicant would not have done so because she feared harm would befall her if she did publicly express her antigovernment opinions. It was necessary, therefore, for the Tribunal to make a finding about why the applicant would not publicly express her political opinions in Fiji, and that finding was that it was not in the applicant’s nature to publicly express her political opinions. The finding that the applicant would not publicly express antigovernment political opinions because it was not in her nature to do so was a critical element in the Tribunal’s conclusion that the applicant did not have a well-founded fear of persecution if she returned to Fiji.

Was the issue one raised before the delegate or treated as dispositive by the delegate?

1. The issue to which the Tribunal’s finding related was not considered by the delegate and, therefore, was not dispositive of the applicant’s claim for protection. Accordingly, there was nothing in the delegate’s decision that ought to have alerted the applicant that an issue she was required to address before the Tribunal was whether she would not publicly express her political opinions in Fiji and, if not, why she would not express her opinions.

Did the Tribunal sufficiently raise the issue?

1. Whether or not the Tribunal sufficiently raised with the applicant the issue and afforded the applicant sufficient opportunity to make submissions in relation to the issue requires an examination of what occurred at the hearing.

2. Before the Tribunal the applicant gave evidence that when people in Fiji “talk about something, it just goes back to, they can’t voice anything”, and that “[i]f you talk about something they, like, it’s a good thing to them to report something”.[21] The Tribunal member then asked whether the applicant or her children had ever been involved in any political activities in Australia since 2006 protesting against the military government. The applicant said that “[w]e just go to meetings . . . at Yagoona” where “we just talk about it”.[22] The following exchange then took place:[23]

   [21] Affidavit of MA R X Devine, annexure “A” (Transcript), p.14.5

   [22] Transcript page 14.8

   [23] Transcript pages 14-16.

   Q54That was the Fiji Democracy and Freedom Movement meeting?

   AYeah, no.

   Q55Right. I mean if you . . . haven’t been involved in political protests activity in Australia against Frank Bainimarama, it’s not very likely that you’d be involved in any protest activity bank [sic] in Fiji against the government. Can you comment on that?

   AHmm, is that if?

   Q56Well, I mean I’m sort of looking at it, O.K., so I mean you’ve been here for ten, eleven years. When you left Fiji of course it had democratic system of government …. Qarase was Prime Minister. When you’re in Australia Frank took over at the end of 2006, military regime, lots of reports about the restrictions on freedom and so on, but you haven’t really taken any action while you’ve been in Australia to protest against that, you haven’t gone out in street marches with the –

   ANo, we never go in street march, no.

   Q57No.

   ANo.

   Q58So just looking at that, that would seem to indicate that if you didn’t do that in Australia where you’re free to do it, you wouldn’t do it in Fiji either. Is that true?

   ANo.

   Q59Yeah. So you wouldn’t be in trouble with the authorities in Fiji for protesting against the government.

   ABecause here in Australia we, the, the only time we heard about the, when we heard about the meeting, that’s why we went to the meeting.

   Q60Yeah.

   ABut um, if we have heard about the protesting when, when they protest we would have gone.

   Q61Yeah. You didn’t join the Fiji Freedom and Democracy Movement?

   . . .

   ANo.

   TRIBUNAL MEMBER

   Q63No. All right.

1. In this exchange the Tribunal put to the applicant that she was unlikely to participate in protests in Fiji because she did not participate in protests against the military government of Fiji in Australia. But that is not the same thing as asking whether the applicant intended to express her political opinions in Fiji publicly and, if not, whether that would be because it was not in her nature to express her opinions publicly. Perhaps what occurred is that the Tribunal did not appreciate until after the hearing that its intended conclusion that the applicant did not intend to publicly express her antigovernment opinions gave rise to the issue of whether the applicant’s intention would be due to her fear of harm, or whether it would be due to some other reason; and it was at that point the Tribunal formed the view that the reason the applicant would not publicly express antigovernment views in Fiji is because it is not in her nature to do so.

2. It can be readily imagined that had the Tribunal asked the applicant whether she intended to express her political opinions publicly in Fiji, rather than only asking whether the applicant had participated in protests in Australia against the Fiji military regime, that could well have opened discussion about whether there were any circumstances outside her participating in antigovernment protests in which the applicant would express her antigovernment opinions if she returned to Fiji and, if there were such circumstances, whether those circumstances would be public and, to the extent the applicant would not express her antigovernment political opinions publicly, whether that would be due to fear on her part or for some other reason.

3. In my opinion, the Tribunal was obliged, but failed, to notify the applicant that an issue it considered to be relevant was whether, if she returned to Fiji, the applicant would publicly express the antigovernment political opinions she held and, if not, whether she would not do so because it was not in her nature to publicly express her political opinions. The applicant, therefore, succeeds on ground 1 of her grounds of review.

Ground 2 – Failure to consider claim based on fear of expressing political opinions privately

1. The applicant submits there was before the Tribunal a claim based on fear of voicing her opinions not only publicly, but even to some individuals. The applicant submits the claim is contained in the passage I have quoted in paragraph 5 of these reasons. The Minister, on the other hand, submits that to the extent such claim can be discerned in the applicant’s claims, it did not constitute “a substantial, clearly articulated argument relying upon established facts”,[24] and, in any event, the applicant abandoned the claim.

   [24] Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389 at page 394 ([24]).

2. In my opinion, the applicant did not make two discrete claims, one based on her fear of publicly expressing antigovernment opinions, and one based on her fear of non-publicly expressing antigovernment opinions. The passage I have quoted in paragraph 5 of these reasons indicates the applicant made one claim, namely, fear of expressing her opinions, both in pubic, and to individual persons. The passage reasonably raises the claim that the applicant feared “cruel treatment and punishment” from her expressing her opinions, whether expressed publicly or privately. The Tribunal failed to deal with this part of her claim. The Tribunal incorrectly interpreted the applicant as only claiming fear of harm from the public expression of antigovernment opinion.

3. I do not accept the Minister’s submission the applicant abandoned her claim to the extent it was based on fear of privately expressing antigovernment opinions. The applicant engaged in no conduct, or made no omission, that could have led the Tribunal reasonably to apprehend that the applicant intended to abandon that part of her claim. It was not open to the Tribunal to assume the applicant abandoned the claim only because she said nothing about it at the Tribunal hearing. Before the Tribunal could reasonably have concluded that the applicant had abandoned this part of her claim, the Tribunal ought to have specifically asked the applicant whether she still relied on that part of her claim.[25]

   [25] See SZSRQ v Minister for Immigration & Anor [2014] FCCA 2205 at [58]-[62]

4. The applicant, therefore, also succeeds on ground 2 of her application.

Conclusion and disposition

1. The Tribunal was obliged, but failed, to notify the applicant that an issue it considered to be relevant was whether, if she returned to Fiji, the applicant would publicly express the antigovernment political opinions she held and, if not, whether she would not do so because it was not in her nature publicly to express her political opinions. The Tribunal also failed to consider that part of the applicant’s claim that was based on her expressing political opinions in private.

2. I propose, therefore, to quash the decision of the Tribunal, and order that it consider the application for review made by the applicants according to law. I also propose to order that the Minister pay the applicants’ costs.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  18 March 2015