BYR17 v Minister for Immigration and Border Protection

Background facts and procedural history 8 The appellant arrived in Australia by boat as an unauthorised maritime arrival on 9 August 2013. The appellant arrived at the same time as his younger brother. At that time the appellant was 23 years of age, and the appellant's younger brother was 21 years of age. 9 On 27 October 2016, the delegate refused to grant the appellant a visa, finding that the appellant failed to meet the criteria under the Act. Relevantly, the record of the delegate's decision identified that the appellant did not satisfy the Family Unit Criteria. 10 On 17 March 2017, the Authority affirmed the decision of the delegate to refuse the visa. The Authority's decision did not involve any consideration of whether the appellant met the Family Unit Criteria. 11 Following the Authority's decision in respect of the appellant, on 5 May 2017, the appellant's younger brother was granted a visa. 12 On appeal to the Federal Circuit Court, the appellant relied on two arguments in support of his application. First, that the facts before the Authority exposed a claim that the appellant was eligible under the Family Unit Criteria, and the failure of the Authority to consider that claim constituted jurisdictional error. Second, and in any event, that the Authority was required to make a de novo assessment of the Family Unit Criteria because the Authority's task under s 473CC of the Act was to "review" the delegate's decision, including an affirmative decision made by the delegate that the Family Unit Criteria had not been met. In so failing to undertake its statutory task, the appellant contended that the Authority fell into jurisdictional error. 13 In relation to the first argument, the primary judge said this: [27] … There is no substantial dispute between the parties that the principles to be applied in determining whether or not there was a claim that fairly arose on the material before the Authority has been properly identified. [28] In NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 relevantly, at [60]-[62], the matters referred to by Mr Guo of counsel do not identify a claim that the applicant was a member of a family unit of the younger brother. No such claim fairly arises on the material before the Authority. There was no substratum of facts that raised such a claim… 14 The second argument raised by the appellant was not directly addressed in the primary judge's reasons. Although it is not clear on the face of his Honour's reasons, it may be that, having reached a conclusion on the first argument, his Honour did not consider that the second argument properly arose. Such an approach may have been erroneous but such error is not raised on this appeal.

DID THE FACTS BEFORE THE AUTHORITY EXPOSE A CLAIM? 15 The principles associated with a failure to consider a claim and whether, as a consequence, jurisdictional error arises, are well settled and apply to Pt 7AA of the Act: DFC16 v Minister for Immigration and Border Protection [2018] FCAFC 56 at [6]-[9] (Siopis and Griffiths JJ); AVU15 v Minister for Immigration and Border Protection [2017] FCA 608 at [10]-[16] (Bromberg J). 16 The parties agree that the relevant principles concerning whether a claim has been made are those outlined by Black CJ, French and Selway JJ in NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1. At [58] the Full Court said this (emphasis added): The Tribunal is required to deal with the case raised by the material or evidence before it - Chen v Minister for Immigration and Multicultural Affairs (2000) 106 FCR 157 at 180 [114] (Merkel J). There is authority for the proposition that the Tribunal is not to limit its determination to the 'case' articulated by an applicant if evidence and material which it accepts raise a case not articulated - Paramananthan v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 287 at 293 - 294 (Wilcox and Madgwick JJ). By way of example, if a claim of apprehended persecution is based upon membership of a particular social group the Tribunal may be required in its review function to consider a group definition open on the facts but not expressly advanced by the applicant - Minister for Immigration and Multicultural Affairs v Sarrazola (No 2) (2001) 107 FCR 184 at 196 per Merkel J, Heerey and Sundberg JJ agreeing. It has been suggested that the unarticulated claim must be raised 'squarely' on the material available to the Tribunal before it has a statutory duty to consider it - SDAQ v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] per Cooper J. The use of the adverb 'squarely' does not convey any precise standard but it indicates that a claim not expressly advanced will attract the review obligation of the Tribunal when it is apparent on the face of the material before the Tribunal. Such a claim will not depend for its exposure on constructive or creative activity by the Tribunal. 17 As stated by Allsop J (as he then was) in NAVK v Minister for Immigration and Multicultural and Indigenous affairs [2004] FCA 1695 at [15]: From NABE I take it that the tribunal is not required to consider a claim that is not expressly made or does not arise clearly on the materials before it: NABE at [61]. As the Full Court said at [63] much depends on the circumstances. 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. 18 The appellant contends that the primary judge was wrong to conclude that he did not raise the Family Unit Claim before the Authority. The appellant correctly conceded that no such claim had been expressly articulated by him, but relying on NABE, contended that the unarticulated Family Unit Claim was raised by the material or evidence. 19 The Minister submitted that any failure to consider the Family Unit Claim does not constitute jurisdictional error as, in accordance with the principles in NABE, the claim was neither expressly advanced nor apparent on the face of the material before the Authority. 20 Whether an applicant before the Authority has made a claim is a question to be objectively determined. Consequently, in order to determine whether the Family Unit Claim was apparent on the face of the material before the Authority, it is necessary to consider the material before the Authority. 21 The relevant material before the Authority is not in dispute and was helpfully outlined in the submissions of both parties. The summary set out in the Minister's submissions, supplemented by the appellant's submissions, is largely adopted in what follows: (1) In his entry interview on 6 September 2013, the appellant stated that he had travelled to Australia with his brother by boat and had come to Australia to live with him. (2) On 6 November 2015, the appellant signed a consent form allowing the Department of Immigration and Border Protection ("Department") to share his personal information with a Primary Application and Information Service Provider. On that form, it was stated that if the appellant intended to make an application as part of a family unit, to so indicate. The appellant did not give this indication on the form. (3) In Part B of his visa application, the appellant was asked to give details of "ALL persons included in this application (those seeking Australia's protection and those who are 'members of the same family unit'…)" (emphasis added) and the appellant only provided his own details. Further, when asked if there were members of the same family unit in Australia but not included in the appellant's application, he responded "No". (4) In Part C of his visa application, the appellant stated he had never been married or in a de facto relationship. Further, the appellant listed his younger brother and an older brother (with whom he had not travelled to Australia) as family members who are in Australia and not included in Part B of the application. This was in contrast to the appellant answering "No" as to whether there were persons "in the same family unit". The appellant also listed his brothers as personal contacts in Australia and indicated he was making his own claims for protection. (5) At the time of the application, the appellant was represented and had the assistance of an interpreter in completing Part B of his application. (6) In his statement dated 17 March 2016 in support of his visa application, the appellant: (a) stated his younger brother had travelled to Australia with him and was currently living in Australia on a bridging visa; (b) stated his father would beat his younger brother and him with a thick cable; (c) in discussing his fears associated with his embrace of Christianity and rejection of Islam, and the consequent mistreatment by his father, stated that the same situation was happening for his younger brother; and (d) did not mention his younger brother when discussing the circumstances of leaving his home or journey to Australia. (7) In her Torture and Trauma/Psychological Report, the appellant's counsellor stated that the appellant had left Iran "after sneaking his younger brother with him, who was also being threatened and beaten by their father" and found that he met the diagnostic criteria for separation anxiety "due to being away from his brother and his overwhelming sense of responsibility for him". (8) In the appellant's submissions to the delegate prepared by his representative, there is no mention regarding a claim associated with the Family Unit Criteria. The appellant's younger brother is only mentioned once, in regard to the distress faced by the appellant while detained and separated from his brother who was in the community on a bridging visa. (9) In the decision record, the delegate ticked a box indicating that the appellant did not meet the Family Unit Criteria but did not otherwise deal with any such claim. (10) The appellant was then invited to prepare a submission to the Authority that stated why the appellant disagreed with the decision and outline any claim or matter overlooked. Neither the appellant nor his representative raised the Family Unit Claim. However, the appellant did state that when released from detention, he moved to Sydney to be closer to his brother. 22 Counsel for the appellant went to great lengths to establish that the above facts and circumstances before the Authority provided a sufficient basis to show that the appellant fell within the Family Unit Criteria. The purpose of that exercise seemed to be to demonstrate, by reason of the materials, that a competent decision-maker would have recognised that there was a claim that the appellant was a member of the same family unit as his younger brother. The appellant correctly submitted that the issue of whether the appellant was in fact a member of the family unit of his younger brother was an issue of fact for the Authority to determine. 23 The appellant placed emphasis on the evidence that: the appellant travelled to Australia with his younger brother with the intention to live together; the two brothers had suffered the same kinds of harm in Iran; that after the appellant's release from detention he moved to Sydney to be closer to his brother; and that the Torture and Trauma/ Psychological Report stated that the appellant suffered separation anxiety as a consequence of being separated from his brother. It was submitted that the above matters demonstrated that the appellant satisfied the Family Unit Criteria, including because the appellant was relevantly "dependent" on his younger brother. 24 In support of this submission, Counsel for the appellant made detailed submission on the proper construction of the term "dependent" and "family head", submitting in both instances that the Act adopted "extended definitions" capable of application to co-dependent siblings. However, while skilfully put, I do not consider that the construction of these provisions is relevant to the determination of the question on this appeal. 25 The question is not whether the appellant satisfied the definitions of Family Unit Criteria and therefore could have made the Family Unit Claim. The question is whether the material before the delegate, and subsequently the Authority, was capable of demonstrating that the appellant did make the claim. Put another way, the capacity of the material to support an argument that the appellant satisfied the Family Unit Criteria does not of itself make it apparent that the appellant made such a claim. 26 On the facts and circumstances described above, I do not consider that the Family Unit Claim was apparent on the material before the Authority. 27 Even accepting that the material before the Authority was potentially relevant to a claim that the appellant was a member of the same family unit as his brother, it is necessary to take into account the context in which that material was put forward by the appellant. The appellant's evidence of the mistreatment of his younger brother was provided in the context of his own claims to fear harm from his father as a Christian. It was open and more rational for the Authority to regard it as corroborative evidence relied on to establish why the appellant's fears were well-founded rather than as a foundation for the Family Unit Claim. 28 The comments in the psychological report take matters no further. On their face, the findings of the counsellor were in the context of her diagnosis of separation anxiety rather than evidence establishing a claim made by the appellant as a member of his younger brother's family unit. 29 This is not a situation where certain material was put before the delegate or Authority that could only have been relevant to a particular claim, and from that material it was reasonably apparent that the particular claim was being made. 30 There are other matters that tend against the conclusion that the Family Unit Claim was apparent. There is merit in the Minister's submission that the material before the delegate and the Authority pointed in the other direction. The appellant differentiated himself from his brother and made clear that he made his own claims for protection. Although he travelled with his younger brother to Australia, and despite a number of opportunities to do so, the appellant either failed to indicate the existence of the Family Unit Claim or expressly stated that he and his younger brother were not part of the same family unit for the purposes of his visa application. 31 In my view, it was not apparent on the face of the material before the Authority that the appellant was making a claim as a dependent of his younger brother on the basis of the Family Unit Criteria. The material before the Authority would not have suggested to a reasonably competent decision-maker that the appellant was attempting to demonstrate that he was a dependent of his younger brother in a general sense let alone "wholly or substantially reliant" on his brother for "financial, psychological or physical support". The facts and circumstances upon which the appellant relies do not either individually or collectively suggest that the appellant was attempting to demonstrate dependence on his brother, and the context in which those facts either arose or were communicated are unsupportive of a suggestion that the appellant was pursuing a claim based on that dependence. 32 For the reasons later given, I consider that the delegate's decision record merely indicates the inapplicability of the Family Unit Criteria rather than suggest that a claim based on that criteria was made, considered and rejected by the delegate. It was open to the Authority to take that view of what the delegate had done. In any event, even if the delegate's conduct suggested the making of the Family Unit Claim, it would not have been apparent to the Authority that the appellant continued to press the claim. In his submissions to the Authority, made after the appellant was informed that his written submission to the Authority could address "why you disagree with the department's decision", the appellant did not, either expressly or otherwise, contend that the delegate made an incorrect finding that the appellant did not satisfy the Family Unit Criteria. The fact that despite being assisted by his representatives, the appellant did not articulate any such claim is significant. 33 For those reasons, I find that the appellant's first argument fails.

WAS THE AUTHOIRTY REQUIRED TO REVIEW THE FAMILY UNIT CLAIM pursuant to s 473CC? 34 The second argument advanced by the appellant concerned the Authority's task under s 473CC of the Act to "review" the delegate's decision. 35 It is convenient to address the statutory context of the Authority's task under s 473CC before addressing the appellant's submissions. Part 7AA was inserted by the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 (Cth) to provide for what the simplified outline of Pt 7AA in that Act described as "a limited form of review" of a "fast track decision" constituted by a refusal to grant a protection visa to an applicant statutorily designated to be a "fast track applicant". 36 Within Pt 7AA, Div 2 establishes the mechanics for the automatic review of fast track reviewable decisions. In this regard, s 473CA imposes a duty on the Minister to refer a fast track reviewable decision to the Authority as soon as reasonably practicable after the decision is made. For the purpose of that review, s 473CB imposes a duty on the Secretary of the Department administered by the Minister ("Secretary") to give the Authority specified "review material" in respect of each fast track reviewable decision. The "review material" includes a statement that sets out the findings of fact made by the person who made the decision, refers to the evidence on which those findings were based, and gives reasons for the decision (s 473CB(1)(a)). The "review material" also includes "material provided by the referred applicant to the person making the decision before the decision was made" and "any other material that is in the Secretary's possession or control and is considered by the Secretary (at the time the decision is referred to the Authority) to be relevant to the review" (s 473CB(1)(b)). 37 In the above context, s 473CC(1), the provision the subject of the appellant's second argument, provides that the Authority "must review a fast track reviewable decision referred to the Authority under section 473CA". The Authority may either "affirm the fast track reviewable decision" under s 473CC(2)(a) or "remit the decision for reconsideration in accordance with such directions or recommendations of the Authority as are permitted by regulation" under s 473CC(2)(b). 38 The appellant submitted that because the Authority's task under s 473CC was to "review" the decision by reference to "review material" that included the delegate's reasons, the Authority was required to deal with each material aspect of the delegate's decision and make its own findings. It was contended that, in this case, the delegate's decision comprised findings that the appellant did not engage the refugee or complementary protection provisions in his own right, and separately, that he was not a member of the same family unit as such a person. Therefore, the appellant submitted the Authority's task under s 473CC was to "review" the delegate's findings as to the Family Unit Criteria as an alternative basis for the grant of the visa. 39 In support of this submission, the appellant relied on Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16, where the High Court made observations on the nature of the review undertaken by the Authority pursuant to s 473CC(1). 40 The plurality (Gageler, Keane and Nettle JJ) observed at [17] that the Authority under Pt 7AA: [I]s not concerned with the correction of error on the part of the Minister or delegate but is engaged in a de novo consideration of the merits of the decision that has been referred to it. The task of the Authority under s 473CC(1) is to consider the application for a protection visa afresh and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. 41 In her Honour's separate judgment, Gordon J observed at [85]: [T]he review by the Authority conducted pursuant to Pt 7AA is a hearing de novo on the material provided to the Authority under s 473CB. The Authority's task is to consider the application for a protection visa and to determine for itself whether or not it is satisfied that the criteria for the grant of the visa have been met. It is a review of a specific and limited kind, at the conclusion of which the Authority has power to affirm the decision under review or to remit the decision for reconsideration by the Minister in accordance with such directions or recommendations as are permitted by regulation and as are necessary to give effect to the Authority's determination. 42 In his Honour's separate judgment, Edelman J observed at [95] that the Authority was obliged to conduct "a de novo review by which the Authority is required to reach its own conclusion…". 43 A further argument advanced in support of the appellant's construction of s 473CC was that an applicant for a protection visa has no right to make a further application due to the operation of s 48A of the Act. Accordingly, if a failed applicant later learns that another person in his or her family unit is granted a visa, the applicant is prevented from applying again to seek to invoke the Family Unit Criteria. 44 Contrary to the appellant's submission, I do not consider that the delegate made an affirmative decision that the appellant did not satisfy the Family Unit Criteria. 45 The delegate's decision includes two references to the Family Unit Criteria. The first appears in the covering text of the letter to the appellant notifying him that his application for a visa has been refused ("Notification"). The Notification stated that: This application was refused because you did not satisfy subsection 36(2) of the Migration Act 1958 (the Act). That provision requires you to be a non-citizen in Australia in respect of whom Australia has protection obligations or a member of the same family unit as such a person. 46 The second reference appears in the record of decision itself, where, following a statement that "the applicant… is refused a protection visa… for one or more of the following reasons", the delegate ticked both of the available boxes, the first indicating that the appellant did not satisfy the criteria for a grant of a visa under the refugee or complementary protection provisions, and the second indicating that the appellant did not satisfy the Family Unit Criteria. 47 The record of the delegate's decision, including the written summary of the claims for protection and findings of fact, does not otherwise refer to or include any discussion of the Family Unit Claim or applicability of the Family Unit Criteria. That is to be contrasted with the detailed findings made and comprehensive treatment given to the claims relevant to the s 36(2)(a) and (2)(aa) criteria, which was the subject of the other box ticked by the delegate to indicate, in the formulaic manner provided for by the decision record, the basis for application's rejection. 48 I do not consider that the statement in the Notification does any more than summarise the content of s 36(2) of the Act. Further, fairly read in the context of the record of decision and reasons, I do not consider that by marking the box referable to the Family Unit Criteria, the delegate made an affirmative decision that the Family Unit Criteria were not satisfied. In the context of no express claim being made, and no claim having been considered in the delegate's reasoning despite its relatively comprehensive nature, the better view is that the delegate only indicated that the Family Unit Criteria was inapplicable because no claim was made, rather than, as the appellant submitted, rejected the claim on its merits. 49 If, contrary to the view just expressed, the delegate did make a finding that the appellant did not satisfy the Family Unit Criteria, the Authority's review obligation would not have required the Authority to determine that issue. 50 The appellant's contention based on the observations made in Plaintiff M174 that the Authority is not concerned with the correction of error but is engaged in a de novo consideration of the decision of the delegate, must obviously be accepted. The appellant is also correct in his contention that the "review material" includes the delegate's reasons (see s 473CB(1)(a)). It may also be said, as the High Court said in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152 at [35] in relation to a Pt 7 review: [T]he point at which to begin the identification of issues arising in relation to the decision under review will usually be the reasons given for that decision. And unless some other additional issues are identified by the Tribunal (as they may be), it would ordinarily follow that, on review by the Tribunal, the issues arising in relation to the decision under review would be those which the original decision-maker identified as determinative against the applicant. 51 However, whilst the delegate's decision provides a starting point, the Authority is not confined to the issues that the delegate considered and nor is the Authority necessarily bound to consider all issues considered by the delegate. As the task of the Authority is to consider the application for a protection visa afresh, the Authority is not bound to consider matters determined by the delegate but which are no longer in issue. Just as new claims may be made, claims made before the delegate may be withdrawn or abandoned. The Authority's task is to conduct a review in relation to those claims that are extant. It is not obliged to conduct a review in relation to claims that have been abandoned or which are no longer pressed by an applicant for a protection visa. The Authority need not conduct a review in relation to a case not advanced by a visa applicant: see NABE at [60] and [62] (Black CJ, French and Selway JJ) and SZTAD v Minister for Immigration and Border Protection [2014] FCA 1256 at [16]-[17] (Bromberg J). 52 As I have noted already, despite the invitation to do so, the appellant could have, but did not, make any submission to the Authority that the delegate had erroneously found that he failed to satisfy the Family Unit Criteria. No claim based on the Family Unit Criteria was either expressly pressed by the appellant or apparent on the material before the Authority. If the Authority came to the view that the delegate had made a finding in relation to the Family Unit Criteria adverse to the appellant, the Authority was entitled to regard any claim made based on that criteria as having been abandoned or no longer pressed. 53 In any event, it is not possible for the appellant to establish jurisdictional error in relation to his contention that because the delegate made a finding on the Family Review Criteria, the Authority was jurisdictionally bound to review such a claim. For the reasons already given, no such claim was ever made before the delegate. If the delegate considered and determined such a claim, the delegate did so erroneously. That error cannot provide the foundation for a finding of jurisdictional error on the part of the Authority. 54 For those reasons, the appellant's second argument must be rejected.

notice of contention 55 The Minister made an alternate claim by Notice of Contention dated 10 May 2018 ("Notice"). The Minister claimed that, even if the Family Unit Claim was made, the Authority did not have power to remit the decision to the delegate with a direction that the appellant met the Family Unit Criteria because, at the time the Authority made its decision, the appellant's younger brother was not a "non-citizen who… holds a protection visa as the same class as that applied for by the applicant". The Authority made its decision on 17 March 2017, and the appellant's younger brother was granted a protection visa on 5 May 2017. The Notice was late but the lateness was explained and no prejudice was asserted by the appellant should an extension of time to file the Notice be given. 56 I would have extended time if it were necessary to do so. However, as the appellant has failed on his appeal, it is unnecessary that I consider and determine the Notice.

CONCLUSION 57 The appeal must be dismissed. As there is no reason why costs ought not follow the event, the appellant should pay the Minister's costs of the appeal. 58 Notwithstanding that, I note the following observations of the primary judge: [29] The Court notes that this is a case where the applicant's elder brother is apparently in the community, having successfully obtained protection, and that his younger brother as an agreed fact, obtained a safe haven enterprise visa as a result of a successful application before a statutory body, and was granted that visa on 5 May 2017, after a successful decision published after the decision in the present case. Those are highly unusual circumstances. [30] On rare occasions, this Court does make an observation that a matter is appropriate for consideration of Ministerial intervention. Whilst I accept that s 417 of the Act has no application to Part 7AA. Nonetheless, the nature of any Ministerial intervention is a matter for the Minister. Suffice to say this is a case where the Court considers it may well be appropriate for such consideration to be given. 59 The prohibition effected by s 48A on the appellant making another application for a protection visa (referred to at [43] above) may be set aside by the Minister pursuant to s 48B of the Act. I would respectfully endorse the primary judge's observation that this is a case where the Minister's intervention should be considered. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Bromberg