BYH16 v Minister for Immigration and Border Protection

LEE J: 1 In Minister for Immigration and Border Protection v BBS16 [2017] FCAFC 176; (2017) FCR 111 at [98], the Full Court (Kenny, Tracey and Griffiths JJ) described Pt 7AA of the Migration Act 1958 (Cth) (Act) as a scheme which could be described as truly remarkable. The legislative scheme in Pt 7AA is relied upon in this appeal as a basis upon which the Court should reconsider, or at least seek to distinguish, well-established propositions that arise in relation to the approach the Court has adopted when dealing with Pt 7 of the Act. 2 The appellant is appealing a judgment of the Federal Circuit Court on the basis that the primary judge failed to have regard to the tests or test which apply to the identification of unarticulated claims requiring consideration, or failed to have regard to that test or tests which the second respondent (Authority) ought to apply given its statutory framework. 3 There is only one ground of appeal which, as developed in the careful and comprehensive submissions made by the appellant, raises three issues: (a) first, whether the Authority is required to consider an unarticulated claim only if it fairly arises on the material before it, or whether it is also required to consider an unarticulated claim which, despite not arising squarely on the material before it, is "open on the facts"; (b) secondly, whether the Authority in the present case was required to consider an unarticulated claim that the appellant feared persecution "by reason of being a family member of an individual associated with, or perceived to be supportive of, the international community by virtue of his recognition as a refugee by an international organisation" (unarticulated claim); and (c) thirdly, if the Authority was required to consider the unarticulated claim, whether it in fact did so. It is convenient to structure these reasons by reference to these three issues, but prior to doing so, I should say something briefly about the background of the matter. 4 The appellant, an Afghan, applied for the grant of a protection visa as long ago as 2015, which was refused by a delegate of the first respondent (Minister). Given the introduction of Pt 7AA of the Act in April 2015 as part of the package of reforms designed to deal with what Parliament described as the "Asylum Legacy Caseload", he was referred to the Authority. The Authority affirmed the decision not to grant a protection visa to the appellant and he thereafter sought judicial review. In July 2017, the Federal Circuit Court, by consent, quashed the decision of the Authority and remitted the appellant's case back to the Authority for reconsideration. The appellant made five further submissions to the Authority in August and October 2017, each in the nature of country information, the details of which are not relevant for present purposes. In November 2017, the Authority affirmed the delegate's decision. The way in which the Authority came to that conclusion is summarised by the primary judge at [12]-[23] of his Honour's reasons and was not contended by either party to be inaccurate. The primary judge dealt with two grounds of appeal, only one of which is relevant to the current proceeding. Mr Tully, who appeared below, submitted before the primary judge that there was a claim or integer of the appellant's claim that the Authority had failed to address. His Honour dealt with that argument at [25]-[29] of his reasons. For reasons that will become evident, it is unnecessary for those reasons to be set out in any detail. 5 I now turn to the three issues that I have identified above.

First issue: which unarticulated claims must be considered? 6 The core of the argument advanced on behalf of the appellant is that the distinctive statutory framework in which the Authority operates must inform how unarticulated claims are to be identified and addressed by it. The proposition for which Mr Tully contended is that a "broader test for assessing unarticulated claims applies in the [Authority] context relative to that of the [scheme provided for in Pt 7 of the Act] because of the relatively limited review contemplated by the statutory scheme" of Pt 7AA. Put another way, it is suggested that the Authority is required to have regard to an unarticulated claim if it is "open on the facts" before the Authority, and it is not the case that the unarticulated claim must arise "squarely on the material". It is common ground that the primary judge approached his task on the basis that there was no relevant distinction in the way in which unarticulated claims are to be dealt with under the different statutory regimes. 7 In a sense, that is entirely unsurprising, as in AOJ18 v Minister for Home Affairs [2018] FCAFC 220, the Full Court (Griffiths, Gleeson and Colvin JJ) at [29] said as follows: It was suggested that this was a case where the Authority should have considered a claim based upon whether there was a risk of harm from persons other than the Sri Lankan authorities from which the appellant would not be protected by the institutions required to maintain law and order. As to those instances where it is said that a claim that arose on the materials should have been considered even though it was not articulated as a claim by the applicant, the following passage in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15] (Allsop J) was approved by the Full Court in Minister for Immigration and Citizenship v SZRMA [2013] FCAFC 161; (2013) 219 FCR 287 at [70]: Whatever adverb or adverbial phrase is used to describe the apparentness of the unarticulated claim, it must, it seems to me, either in fact be appreciated by the Tribunal or, if it is not, arise sufficiently from the material as to require a reasonably competent Tribunal in the circumstances to appreciate its existence. A practical and common sense approach to everyday decision-making requires the unarticulated claim to arise tolerably clearly from the material itself, since the statutory task of the Tribunal is to assess the claims by reference to all the material, not to undertake an independent analytical exercise of the material for the discovery of potential claims which might be made, but which have not been, and then subjecting them to further analysis to assess their legitimacy. 8 AOJ18 was a decision concerned with an appeal from the Federal Circuit Court which dismissed a judicial review application relating to a decision of the Immigration Assessment Authority not to grant a protection visa. As can be seen from this extract, the principles which developed in the context of Tribunal review under Pt 7 were applied by the Full Court in the context of Authority review under Pt 7AA of the Act. It follows inevitably, it seems to me, that unless I was persuaded that AOJ18 was plainly wrong, I ought to follow it. 9 It is unnecessary for the purposes of this judgment to consider an argument, not made by the Minister, that it may be consistent with the text and purpose of Pt 7AA to construe the obligation of the Authority to consider unarticulated claims in a way which contracts rather than expands the relevant obligation as it has been developed by reference to a different statutory scheme. As is obvious from the structure and terms of Pt 7AA, Parliament has made a deliberate legislative choice to limit referred applicants' rights to give (and the Authority's coordinate duties to receive and consider) material in support of their claims by comparison to the applicants' rights (and the Tribunal's coordinate duties) under Pt 7. This, as well as Parliament's use of the adjective "limited" to describe the Authority's review function (see ss 473BA and 473FA), might be thought to have some contextual relevance to the way in which the Authority is to deal with claims which have not been specified in the particulars of the claim provided to the Authority. But as I have said, this issue need not detain us. It is tolerably clear that even uninstructed by authority I would reject the contention that there is some expansion of the obligation to consider unarticulated claims which arises by reason of the legislative landscape which governs Authority review, and which would require departure from well-known authorities established in the context of consideration of the requirements of Tribunal review. 10 All that needs to be said for present purposes, is that the primary judge was correct to ask whether the relevant unarticulated claim arose fairly on the material before the Authority, with the added comment that whatever the "adverb or adverbial phrases [describing] the apparentness of the unarticulated claim", what matters, is that the unarticulated claim must "arise sufficiently from the material as to require a reasonably competent [decision-maker] in the circumstances to appreciate its existence": NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 at [15]. Read fairly, this is precisely the way the primary judge approached the issue.

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Judgment (5 paragraphs)

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Legislation Cited (1)

Cases Cited (5)