SZVWF v Minister for Immigration

[2016] FCCA 2532

FEDERAL CIRCUIT COURT OF AUSTRALIA

SZVWF v MINISTER FOR IMMIGRATION & ANOR [2016] FCCA 2532

Catchwords:
MIGRATION – Application for review of decision of Refugee Review Tribunal (Tribunal) – whether applicant abandoned claim for protection based on membership of an asserted social group – whether in any event claim based on membership of the asserted social group was bound to fail had the Tribunal considered the claim – whether asserted social group constituted a “particular social group” within the meaning of the Refugees Convention – whether the asserted claim disclosed a necessary causal connection between the asserted membership of the asserted social group and the persecution claimed to have been feared by reason of such membership – jurisdictional error found.

Legislation:

Migration Act 1958 (Cth), s. 414, 414(1), 418, 418(2), 418(3), 424, 425,

425(1), 425(2)(a)

Cases cited:

Applicant A v Minister for Immigration and Ethnic Affairs (1997) 190 CLR 225

Applicant S v Minister for Immigration and Multicultural Affairs (2004) 217 CLR 387
Applicant WAEE v  Minister for Immigration & Multicultural & Indigenous Affairs [2003] FCAFC 184

Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244

Sargent v ASL Developments Ltd (1974) 131 CLR 634
SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs [2006] FCA 1798
SZTFY v Minister for Immigration & Anor [2014] FCCA 2087
SZURJ v Minister for Immigration & Anor [2016] FCCA 1771

The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

Applicant: SZVWF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: SYG 3523 of 2014

Judgment of: Judge Manousaridis

Hearing date: 6 August 2015

Date of Last Submission: 8 August 2016

Delivered at: Sydney

Delivered on: 30 September 2016

REPRESENTATION

Counsel for the Applicant: Mr L Karp

Solicitors for the Applicant: Proactive Legal Pty Ltd

Counsel for the Respondents: Ms R Greycar

Solicitors for the Respondents: Sparke Helmore

ORDERS

1. The decision of the Refugee Review Tribunal made on 2 December 2014 affirming the decision of the delegate of the first respondent made on 9 April 2014 not to grant the applicant a Protection (Class XA) visa (Protection visa) is quashed.

2. The Administrative Appeals Tribunal is substituted for the Refugee Review Tribunal as the second respondent.

3. Pursuant to Item 15AG of Schedule 9 to the Tribunals Amalgamation Act 2015 (Cth) the Administrative Appeals Tribunal determine according to law the application made to the Refugee Review Tribunal to review the decision of a delegate of the first respondent made on 9 April 2014 not to grant the applicant a Protection visa.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3523 of 2014

SZVWF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The principal question that arises on this application for judicial review is whether there was before the second respondent (Tribunal) a claim (asserted claim) that the applicant, a national of Yemen, feared harm because he was a member of a particular social group, namely, Yemeni nationals who have never lived in Yemen, who have no family or other connections in Yemen, and who will be targeted and persecuted in Yemen as strangers (asserted social group).

2. The first respondent (Minister) accepts the Tribunal did not consider the asserted claim. The Minister also accepts the applicant advanced the asserted claim before a delegate of the Minister, and that the delegate determined the asserted claim adversely to the applicant. The Minister submits, however, that the applicant did not advance the asserted claim before the Tribunal and, for that reason, abandoned it. The Minister further contends that, even if the Tribunal was obliged to consider the asserted claim, the claim was bound to fail.

3. To appreciate the competing contentions, it will be necessary to set out the applicant’s claims for protection, the delegate’s decision, and the proceedings before the Tribunal.

Applicant’s claims for protection

1. The applicant claimed his family is from a state that formed part of the British Protectorate of South Arabia. [1]  In 1967 the sultan of that state was overthrown, and the state became part of South Yemen. In 1990 South Yemen united with North Yemen to become the Republic of Yemen.

   [1] CB135-146

2. The applicant’s grandfather was compelled to leave that state in the 1960s for political reasons. The applicant’s grandfather went to Kenya, and the applicant’s father moved from Kenya to Saudi Arabia when the applicant’s father was in his twenties. The applicant’s father and mother married in a ceremony in Yemen in which the applicant’s father did not personally participate. The applicant’s parents first met in Saudi Arabia after they had been legally married.

3. The applicant was born in Saudi Arabia, and he lived most of his life there. As he grew up, Yemenis were treated well in Saudi Arabia. Things changed with the first Gulf war, when Yemenis began to be treated as second-class citizens. In the early 1990s a decree was issued prohibiting Yemenis from holding managerial positions. That resulted in the applicant’s father losing his position at a bank. A further decree was issued prohibiting foreigners, including Yemenis, from accessing public hospitals. Further, foreigners, including Yemenis, required a local sponsor to work legally in Saudi Arabia. The applicant’s father had been sponsored until he passed away in 2005. The applicant himself had been sponsored until 2013 when the applicant’s sponsor informed him the sponsor would be unable to continue to do so.

4. The applicant decided to leave for Australia because it “was hopeless for me in Saudi Arabia”.[2] The applicant cannot return to Saudi Arabia because, having no sponsor, he has no legal right to live there. The applicant also claimed he cannot live in Yemen. In that regard, the applicant noted he first visited Yemen for about 20 to 25 days when he was nine years old. During that visit, the applicant’s uncle and the husband of the applicant’s aunt were killed and, during the same incident, his aunty was shot in the hand. The incident was reported to the police. The applicant claimed the assailants were members of two tribes who hated the applicant’s family’s tribe. The applicant visited Yemen three times in 2010 to organise the sale of his father’s property.

   [2] CB140, [33]

5. The applicant claimed he was afraid that, if he were forced to live in Yemen, he would come to the attention of the enemies of his family who had killed his uncle. They are people who were in favour of the independence movement, and they knew the applicant’s family had supported the Sultan. The applicant also claimed to fear Al Qaeda, who targeted people indiscriminately, and the Yemeni Socialist Party because they are against tribes who supported British occupation. The applicant mentioned there is a civil war in Yemen, and that he feared North and South Yemen will separate again. The applicant also claimed that if he were to live in North Yemen, he would face similar problems because people would know he is from the South because of his darker skin tone and accent.

6. The applicant supported his application for a Protection visa with a letter dated 28 January 2014 prepared by the Refugee Advice & Casework Service (RACS).[3] In the opening paragraph, the letter sated the applicant fears going to Yemen because his “family/tribe has a longstanding and violent dispute with two other tribes/families . . . who are affiliated with the Socialist Party of Yemen, and who oppose [the applicant’s] family tribe due to their prior connections with the British”. The letter continued a little later with the following:

   [3] CB182-188

   The harm he fears is convention related because of his membership of the following possible social groups:

   . . . .

   ·    Yemeni nationals who have never lived in Yemen and who have no family or other connections and who will be targeted and persecuted by Yemenis as “strangers”.

7. The letter also contained the following:

   He fears being beaten, assaulted and even killed across all of Yemen on the basis of being a Yemeni national who has spent his life outside of Yemen and who will be persecuted by Yemenis as a stranger.

Before the delegate and Tribunal

1. The delegate considered, but rejected, the asserted claim, largely on the basis of country information. The delegate was not satisfied that Yemeni citizens who are returned to Yemen from Saudi Arabia are treated differently or harsher than other Yemeni citizens.[4] The delegate also concluded he did not “consider that citizens returning from Saudi Arabia would have features that set them apart from society”.[5]

   [4] CB198

   [5] CB199

2. The applicant supported his application before the Tribunal with a letter dated 23 October 2014 from RACS.[6] The letter sets out what it describes as a “[s]ummary of claims raised by” the applicant. This part of the letter refers to the applicant’s claim that he is afraid he will be targeted by the army and the government based on his “ethnicity, his perceived opposition to the government and [his] perceived opinion that the south should separate from the north and from the government”.[7] The letter attached a number of documents, one of which was what the letter described as the applicant’s “own response to the concerns raised by the decision of the delegate” (applicant’s response).  

   [6] CB226

   [7] CB227

3. In that document, the applicant repeated and commented on a number of the delegate’s conclusions, two of which, the applicant submits, relate to the asserted claim. The first of the delegate’s conclusion is:[8]

   There are no reports before me that indicate citizens returned from Saudi Arabia are identifiable and are treated different from other citizens. I do not consider that citizens returned from Saudi Arabia would have features that set them apart from society.

   [8] CB431. This repeats the delegate’s finding at CB199.2

4. Under this passage, the applicant’s response referred to three matters. The first was a “U.S. government . . . report on human trafficking in Yemen”, noting that the report referred to 235,016 Yemeni migrant workers who had been deported from Saudi Arabia and returned to Yemen, and that many of those who had been deported “remain displaced in Yemen without access to food, shelter, and medical services”, and that “[t]hese individuals are highly vulnerable to exploitation, including human trafficking, in Yemen”. The second was a report published by the International Organisation for Migration “about help [provided to] the returnees from Saudi Arabia to Yemen”. And the third is news articles about “incidents of kidnappings of expatriate Yemenis returning from Saudi Arabia to Yemen”.

5. The second of the delegate’s conclusions in relation to which the applicant’s response made comments is the delegate’s not being satisfied “that applicants [sic] move to Yemen places him in particular social group”.[9] Here, the applicant’s response only referred to his being a member of a particular tribe.

   [9] CB431. This repeats the delegate’s finding at CB199.5

Parties’ submissions

1. There is no question that the Tribunal did not consider the asserted claim. The applicant submits that necessarily means the Tribunal made a jurisdictional error. The Minister, on the other hand, submits the asserted claim “was not a claim that was put to the Tribunal and thus there was no obligation on the Tribunal to consider it when exercising its jurisdiction”,[10] and that the applicant had abandoned the asserted claim.[11] The Minister relies on the applicant’s having been represented at the hearing, and the applicant’s advisers not advancing the asserted claim before the Tribunal.[12] In the alternative, the Minister submits that, if the asserted claim was before the Tribunal, it was bound to fail, had the Tribunal considered it.

   [10] Outline of Submissions for the First Respondent [16]

   [11] Outline of Submissions for the First Respondent [24]

   [12] Outline of Submissions for the First Respondent [23]

2. Two questions, therefore, arise:

   a)Was the asserted claim before the Tribunal?

   b)Assuming the asserted claim was before the Tribunal, was it bound to fail?

3. Before I consider these questions, it would be useful to say something about the meaning of “claims”, and the Tribunal’s obligation to consider claims.

Obligation to consider claims

1. When reviewing a decision of a delegate of the Minister under s.414 of the Migration Act 1958 (Cth) (Act), the Tribunal is required to “consider the claims of the applicant”, and the Tribunal will make a jurisdictional error if it fails to consider all claims.[13] It is common ground that the circumstances in which the Tribunal is required to consider a claim are those identified in the following passage from the judgment of the Full Federal Court in Applicant WAEE v Minister for Immigration & Multicultural & Indigenous Affairs (emphasis added):[14]

   [45] . . . . If the Tribunal fails to consider a contention that the applicant fears persecution for a particular reason which, if accepted, would justify concluding that the applicant has satisfied the relevant criterion, and if that contention is supported by probative material, the Tribunal will have failed in the discharge of its duty, imposed by s 414, to conduct a review of the decision. This is a matter of substance, not a matter of the form of the Tribunal's published reasons for decision.

   [46] It is plainly not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons. It may be that some evidence is irrelevant to the criteria and some contentions misconceived. . . .  

   [47] The inference that the Tribunal has failed to consider an issue may be drawn from its failure to expressly deal with that issue in its reasons. But that is an inference not too readily to be drawn where the reasons are otherwise comprehensive and the issue has at least been identified at some point. 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. 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 has been overlooked.

   [13] Htun v Minister for Immigration and Multicultural Affairs (2001) 194 ALR 244 at [42] (Allsop J (as his Honour then was))

   [14] [2003] FCAFC 184 at [45]-[47]

2. This passage does not expressly define what a “claim” is. As I have noted elsewhere,[15] however, a “claim”, in this context, may be taken to denote all alleged facts on which an applicant relies for claiming he or she is entitled to a protection visa. It will usually include “integers of a claim” – that is, alleged facts which, if the Tribunal were satisfied exist, ought to lead the Tribunal to conclude the applicant has satisfied the criteria prescribed by the Act for the granting of a protection visa.

   [15] SZURJ v Minister for Immigration & Anor [2016] FCCA 1771 at [19]

Was the asserted claim before the Tribunal?

1. The Minister submits that “neither the adviser’s submissions to the Tribunal prior to the hearing, nor the post hearing submissions, repeated the contention that was the subject of the submission to the delegate, and which contention was comprehensively considered and rejected by the delegate”.[16] The Minister submits that nothing in the document the applicant prepared in “response to the concerns raised by the decision of the delegate” referred to the asserted claim.[17] Specifically, the Minister submits there is “no reference to the delegate’s rejection of the contention, nor to the finding of the delegate that the “social group” the subject of the contention was not a “particular social group” for the purposes of the Refugees Convention”.[18] The Minister also submits the applicant did not seek to “re-agitate” the asserted claim before the Tribunal.[19]

   [16] Outline of Submissions for the First Respondent [10]

   [17] Outline of Submissions for the First Respondent [11]-[12]

   [18] Outline of Submissions for the First Respondent [12]

   [19] Outline of Submissions for the First Respondent [13]

2. I do not accept these submissions. Two of the six points on which the applicant’s response made comments related to the delegate’s consideration of the asserted claim; one was the delegate’s finding that there “are no reports before me that indicate citizens returned from Saudi Arabia are identifiable and are treated different from other citizens. I do not consider that citizens returned from Saudi Arabia would have features that set them apart from society”,[20] and the other was the delegate’s not being satisfied “that applicants [sic] move to Yemen places him in particular social group”.[21] The applicant’s response referred to information that does not appear to have been before the delegate.[22] It is true the applicant did not expressly claim the asserted group existed, and that he was a member of such group. But he did not need to; the matters to which his two comments were directed formed part, and a central part, of the delegate’s consideration and rejection of the asserted claim. And the applicant’s comments indicated he sought to challenge what the delegate had concluded.

   [20] CB431. This repeats the delegate’s finding at CB199.2

   [21] CB431. This repeats the delegate’s finding at CB199.5

   [22] CB431

3. Assuming, contrary to my conclusion, that the applicant did not in his response refer to the asserted claim, and neither the applicant nor his representative said anything about the asserted claim to the Tribunal, would that have been sufficient to have constituted an abandonment by the applicant of the asserted claim, as the Minister submits? The starting point to answering that question is the authorities on which the Minister relies for submitting the applicant abandoned the asserted claim.

4. The Minister principally relies on the judgment of Bennett J in SZEIV v Minister for Immigration & Multicultural & Indigenous Affairs, and in particular, on the following passage from her Honour’s judgment (emphasis added):[23]

   A claim made to the Department and referred to in the Delegate’s decision would, ordinarily, be before the Tribunal. However, where a claim has been made to the Delegate and not advanced at all before the Tribunal and does not arise from the material before the Tribunal, the Tribunal is entitled to assume that the claim is no longer made. The Tribunal is conducting a review of the Delegate’s decision but on the basis of the claims advanced and materials before the Tribunal. If a claim does not so arise and is abandoned, especially where the applicants are legally represented, the Tribunal is entitled to take the view that the applicants do not make that claim or a case based on that claim.

   [23] [2006] FCA 1798 at [34]

5. Her Honour, in this passage, did not say the Tribunal is entitled to assume a particular claim is no longer made only because the claim is not “advanced at all”. Her Honour also referred to the claim not arising “from the material before the Tribunal”. In other words, all her Honour said in this passage is that, if a claim is not being advanced “at all”, and if the claim does not arise from the material that is before the Tribunal, the Tribunal may assume the claim is not being pursued. Thus, an applicant’s not making any submission to the Tribunal in support of a claim that otherwise arises from the material before the Tribunal cannot by itself indicate the applicant abandoned such claim.

1. With respect, her Honour’s conclusion reflects the scheme under which the Tribunal is granted jurisdiction to review decisions. Of particular relevance are s.418, s.424, and s.425 of the Act. Subsection 418(2) of the Act requires the Secretary of the Department to provide to the Registrar of the Tribunal a “statement about the decision under review” that sets out the findings of fact made by the decision-maker, refers to the evidence on which those findings were based, and which gives reasons for the decision. Subsection 418(3) of the Act requires the Secretary of the Department to provide to the Registrar of the Tribunal documents in the possession or control of the Secretary which the Secretary considers to be relevant to the review of the decision. Section 424 of the Act empowers the Tribunal to “get any information that it considers relevant”. And, finally, there is s.425(1) of the Act which, subject to certain exceptions, requires the Tribunal to invite the applicant to appear before it “to give evidence and present arguments relating to the issues arising in relation to the decision under review”. The Tribunal’s obligation under s.425(1) of the Act to issue an invitation does not arise if, as provided by s.425(2)(a), the Tribunal considers it should decide the review in the applicant’s favour on the basis of the material before it.

2. These provisions indicate that, when reviewing a decision under s.414 of the Act, the Tribunal must consider information that becomes available to it under these provisions. Thus, when the Tribunal, in the case before me, was considering what claims were before it, the Tribunal was required to consider the delegate’s decision, the documents the Secretary of the Department provided to the Tribunal, and information the applicant provided to the Tribunal. The documents the Tribunal was required to consider consisted of not only the submissions RACS made to the Tribunal in its letter dated 23 October 2014, but also the submissions RACS made to the delegate in its letter dated 28 January 2014. Given that the central statutory function of the Tribunal under s.414(1) of the Act was to review the delegate’s decision, the Tribunal was obliged to consider all of the claims arising on the material before it, including the asserted claim, which the delegate determined adversely to the applicant. The Tribunal could not have been released from this obligation only because the applicant and his representative may have said nothing to the Tribunal at the hearing about the asserted claim.

3. That is not to say the applicant could not, by his actions, have released the Tribunal from its obligations to consider the asserted claim. The obligation of the Tribunal to consider material that is provided to it under s.418, or s.424, or s.425 of the Act is for the benefit of an applicant; and it is well established that a person can waive a statutory condition conferred for his or her benefit.[24] Although there may be some uncertainty about whether, in this context, “waiver” denotes an independent principle or instead sometimes denotes an election, and sometimes an estoppel, [25] silence or inactivity by the person who has the benefit by itself will rarely, if ever, lead to the applicant losing the benefit, either through the operation of waiver, election, or estoppel. What will also usually be required is knowledge by the applicant of the existence of, and an intention to forgo, the statutory benefit. Thus, it has been said that, “[a]ccording to its strict connotation, waiver is an intentional act done with knowledge whereby a person abandons a right by acting in a manner inconsistent with that right”;[26] and for there to be a valid election, there must be “an element of knowledge on the part of the elector”.[27]

   [24] The authorities were reviewed by McHugh J in The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at pages 491-496

   [25] See generally The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

   [26] The Commonwealth of Australia v Verwayen (1990) 170 CLR 394 at page 406 (Mason CJ)

   [27] Sargent v ASL Developments Ltd (1974) 131 CLR 634 at page 646 (Stephen J). Estoppel is unlikely to operate in this context.

4. The Minister also relies on the following passage from the judgment of Judge Cameron in SZTFY v Minister for Immigration & Anor:[28]

   In the absence of compelling reasons to conclude otherwise, where an applicant is professionally represented, was as the case here, it must be assumed that the claims which the applicant wished to make before the Tribunal were the ones expressly articulated by him or her and his or her advisers and that any arguable claims which were not expressly articulated were not pressed. If a represented applicant has not pursued an issue, then that is his or her election: SZRPA v Minister for Immigration & Citizenship [2012] FCA 962 at [10] and [26]; SZQFR v Minister for Immigration & Citizenship [2013] FCA 574 at [57].

   [28] [2014] FCCA 2087 at [35]

5. With respect, this proposition is expressed too broadly because it does not refer to whether there is material before the Tribunal which otherwise gives or may give rise to a claim. As I have noted, before an applicant will be held to have abandoned a claim, the passage from the judgment of Bennett J in SZEIV requires not only that the applicant not advance the claim, but also on there not being material before the Tribunal that gives or may give rise to the claim. Further, and as I also have noted, the Tribunal, for the benefit of the applicant, is obliged to consider claims that arise on the material that is provided to it; and, although an applicant may waive that benefit, he or she will not, at least in most circumstances, be taken to have waived that benefit only because the applicant did not specifically address or advance a claim that otherwise arises on the material before the Tribunal.

6. Thus, even if the applicant had not responded to the delegate’s consideration of the asserted claim, I would not have concluded that, from his and his adviser’s inactivity and silence in relation to the asserted claim, the applicant waived or otherwise elected to forgo the benefit of the Tribunal’s being required to consider the information that came before it under s.418 and s.425 of the Act with a view to determining claims that arose on that material. That is so because the material that was before the Tribunal, which included RACS’s letter dated 28 January 2014 to the delegate, raised the asserted claim, and the mere silence and inactivity of the applicant and his adviser in relation to the asserted claim would have been insufficient to raise the inference that the applicant intended to forgo the benefit of the Tribunal’s considering the asserted claim that was expressly made in RACS’s letter of 28 January 2014.

7. I do not, therefore, accept the Minister’s submission that the asserted claim was not before the Tribunal, or that the applicant otherwise abandoned the asserted claim.

Was the asserted claim bound to fail?

1. The Minister submits that, even had the Tribunal considered the asserted claim, it was bound to fail.

2. First, the Minister, in his written submissions, observed it was “notable” that the asserted claim was formulated by use of the words “possible social group” rather than the words “particular social group” that are to be found in the definition of “refugee” in Art.1A(2) of the Convention relating to the Status of Refugees (1951) as amended by the Protocol relating to the Status of Refugees (1967) (Refugees Convention). It is not clear, however, what significance the Minister attaches to the claim having been formulated using the words “possible social group” rather than “particular social group”.

3. It is true that in its letter dated 28 January 2014 RACS referred to “possible social groups”, and that it is no element of the definition of “refugee” contained in Art.1A(2) of the Refugees Convention that a person be a member of a possible social group. The use by RACS of the words “possible social group”, however, must be read in context. RACS used the expression “possible social groups” as a reference to what RACS described as five social groups; and the words are contained in a sentence in which RACS claimed the applicant’s fears were “convention related”. It is clear, therefore, that RACS intended to claim that one or more of the social groups it described was a particular social group, or were particular social groups, within the meaning of the Refugees Convention. That is how the delegate understood the claim because the delegate considered the asserted claim, finding that the asserted social group was not a particular social group for the purposes of the Refugees Convention.

4. The Minister, however, makes two substantive submissions. The first is that the asserted claim does not identify a “particular social group” as that expression has been explained by the High Court in Applicant A v Minister for Immigration and Ethnic Affairs[29] and Applicant S v Minister for Immigration and Multicultural Affairs.[30] For the purpose of these reasons, the relevant principles for determining whether a group falls within the definition of “particular social group” in Art 1A of the Refugees Convention, or may be taken to be those stated in the following judgment of Gleeson CJ and Gummow and Kirby JJ in Applicant S:[31]

   First, the group must be identifiable by a characteristic or attribute common to all members of the group. Secondly, the characteristic or attribute common to all members of the group cannot be the shared fear of persecution. Thirdly, the possession of that characteristic or attribute must distinguish the group from society at large. . . . [A] group that fulfils the first two propositions, but not the third, is merely a “social group” and not a “particular social group”.

   [29] (1997) 190 CLR 225

   [30] (2004) 217 CLR 387

   [31] (2004) 217 CLR 387 at [36]

5. The Minister submits the asserted group is not the type of group to which the authorities refer; it is not an identifiable group that would be targeted because of some characteristic that pertains to members of that group. The Minister also relies on the delegate’s finding that, to the extent that people from outside are targeted as “strangers” in Yemen, that applies to refugees rather than people in the position of the applicant.[32]

   [32] Outline of Submissions for the First Respondent [30]

6. The Minister’s submissions do not take into account the applicant’s “response to the concerns raised by the decision of the delegate”. As I have already noted, in its letter dated 23 October 2014 to the Tribunal,[33] RACS informed the Tribunal the applicant “has prepared his own response to the concerns raised by the decision of the delegate”, and enclosed the applicant’s response which specifically referred to two of the delegate’s findings about the asserted claim.[34] The applicant also referred to country information, and in particular, to what the applicant claimed was a report issued by the government of the United States of America (additional country information).[35] The additional information included the following:

   From June to December 2013, an international organization reported a total of 235,016 Yemeni migrant workers were deported from Saudi Arabia and returned to Yemen through the al-Tuwal border crossing. Many of those who were deported remain displaced in Yemen without access to food, shelter, and medical services. These individuals are highly vulnerable to exploitation, including human trafficking, in Yemen.

   [33] CB226 at 228

   [34] CB431

   [35] CB427

7. The Minister’s submission should be assessed, not only by reference to the matters the delegate considered, but also by reference to the applicant’s response and the additional country information. If that is done, I cannot be satisfied the Tribunal would not have accepted the asserted claim. The additional country information is such that it could reasonably have suggested to the Tribunal the possibility that:

   a)the asserted social group exists;

   b)members of the asserted social group share an identifiable characteristic or attribute common to all members of the group, that characteristic or attribute being they are workers who had been deported from Saudi Arabia who have no access to food, shelter, and medical services;

   c)this characteristic distinguishes the group from society as a whole;

   d)the group is not defined by reference to the persecution the applicant claims members of such group fear;

   e)for these reasons, the asserted social group is a “particular social group” within the meaning of Art.1A(2) of the Refugees Convention; and

   f)the applicant would be a member of the asserted group or, at least, be perceived to be a member of the asserted group, if he was returned to Yemen.

8. In these circumstances, had the Tribunal considered the asserted claim, it may have dealt with the claim in a number of ways. The Tribunal may simply have made a decision on the basis of the material the applicant provided; the Tribunal may have sought country information in relation to the asserted social group, and the matters raised in the additional country information; or the Tribunal may have asked the applicant questions, particularly about the claimed circumstances in which the sponsor withdrew his sponsorship of the applicant. It is not possible to determine which way the Tribunal would have dealt with the asserted claim, had it considered the claim, and what would have been the outcome.

9. The Minister’s second substantive submission is that the material did not disclose any causal link “established between the applicant being a person who has lived outside Yemen and has no close family there and any persecution he might suffer if he returned there”.[36] The question, however, is not whether the material before the Tribunal disclosed any causal link; the question is whether the applicant was bound to fail because, had the Tribunal considered the asserted claim, the Tribunal would not have been satisfied that any relevant causal link existed. To answer that question, it is necessary first to identify the causal link that is entailed in a claim of having a well-founded fear of persecution based on membership of a particular social group.

   [36] Outline of Submissions for the First Respondent [31]

10. The necessary causal link must exist between a well-founded fear of persecution and membership of a particular social group; and the causal link is one that operates through “reasons”, the reasons of persecutors. The nature of this link was, with respect, well described by Gummow J in Applicant A:[37]

    In par (2) of s A the notion of “fear of being persecuted” is confined by the use of the phrase “for reasons of”. This serves to identify the motivation for the infliction of the persecution and the objectives sought to be attained by it. The reason for the persecution must be found in the singling out of one or more of five attributes, namely race, religion, nationality, the holding of political opinion, or membership of a particular social group.

    [37] (1997) 190 CLR 225 at page 284

11. Having regard to the additional country information, I cannot find the Tribunal would not have been satisfied the applicant would establish a causal link. The additional country information is such that it could reasonably have suggested to the Tribunal the possibility that:

    a)the applicant, if returned to Yemen, would be perceived to be a member of the asserted social group;

    b)members of the asserted group, because they are members of such group, face persecution or the infliction of harm in the form of exploitation, including human trafficking; and

    c)being a member of the asserted social group, or being perceived to be a member of such social group, the applicant had a well-founded fear of persecution.

12. Had the Tribunal considered the asserted claim, it could have considered the issue of causation in one or more ways – by making a decision on the basis of the material the applicant provided, or by itself obtaining further country information, or by asking the applicant questions. It is not possible to determine how the Tribunal would have dealt with the issue of causation, had it considered the asserted claim. It is therefore not possible to determine whether the Tribunal would have concluded there was no relevant causal link.

Conclusion and disposition

1. It may be thought that the asserted claim is weak and, had the Tribunal considered it, the Tribunal would have rejected the claim. Whether or not a claim for protection is strong or weak is not an enquiry into which a court exercising judicial review jurisdiction is permitted to embark. It is for the Tribunal, not the Court, to consider claims - the strong and the weak - that are before it. The Tribunal will make a jurisdictional error if it does not consider all claims that are expressly made or which fairly arise on the material before it. And unless, in what may reasonably be supposed to be exceptional cases, the Court is satisfied the Tribunal’s failure to consider a claim could not have made any difference to the decision the Tribunal made, the Court will grant relief to set aside the Tribunal’s decision.

2. In the case before me, I have concluded the Tribunal failed to consider a claim that was before it, and I cannot be satisfied that, had the Tribunal considered the claim, it would have made no difference to the decision the Tribunal made. I propose, therefore, to order that the Tribunal’s decision be quashed. I also propose to order that the Administrative Appeals Tribunal be substituted for the Tribunal as the second respondent, and that the Administrative Appeals Tribunal consider the applicant’s claims for protection according to law.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Date: 30 September 2016