CKB22 v Minister for Immigration and Citizenship [2026] FedCFamC2G 254

1. Below I set out my consideration of the remaining ground of review in this matter.
2. To obtain the constitutional writ relief sought in their application, the applicants must establish the Tribunal committed the material jurisdictional error as alleged: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 280 CLR 321 (LPDT) and Minister for Immigration & Border Protection v SZMTA [2019] HCA 3; (2019) 264 CLR 421.

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1. The notion of being a member of a "particular social group" has been assessed in broad terms by the Court. In Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387, Gleeson CJ, Gummow and Kirby JJ asserted that "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".1 Similarly, McHugh J also adopted a wide definition in those proceedings, noting that "to qualify as a particular social group, it is enough that objectively there is an identifiable group of persons with a social presence in a country, set apart from other members of that society, and united by a common characteristic, attribute, activity, belief, interest, goal, aim or principle".2
2. The possession of wealth has been recognised in Australian jurisprudence as a possible basis for membership of a "particular social group" for the purposes of the Act.
3. On review of the material provided by the Applicant to the Tribunal, as well as his oral assertions at the hearing, it is evident that he sufficiently raised this particular Convention ground as a basis for his claim for protection. In this regard, it is submitted that:

1. At the hearing before me, Mr Pararajasingham, orally submitted that the applicant's political claim was the only express or articulated claim made by the applicant throughout his protection visa process. However, he submitted that there was another unarticulated claim that "arose squarely" on the material before the Tribunal that had not been considered, and the Tribunal thereby fell into jurisdictional error.
2. Mr Pararajasingham submitted that the applicant's claim that he has a well-founded fear of persecution because of his membership of a particular social group, that being wealthy businessmen in Bangladesh who are vulnerable to extortion, was in the category of "unarticulated claims" referred to in paragraph [58] of NABE v Minister for Immigration & Multicultural & Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE (No 2)). He submitted that the Tribunal by failing to consider that particular claim, committed a jurisdictional error of the kind referred to in NABE (No 2). He submitted to succeed he had to demonstrate, by reference to the evidence, that the unarticulated claim "arose squarely" on the material before the Tribunal.
3. He then took me various parts of the Court Book. First, he took me to paragraphs [2], [3] and [7]-[9] of the applicant's statement dated 2 February 2016. Next, he took me to a psychological report that was given to the Tribunal by the applicant. Finally, he took me to paragraphs [24] and [34] of the Tribunal decision. He relied upon these references as evidence that that the applicant's claim that he has a well-founded fear of persecution because of his membership of a particular social group, that being wealthy businessmen in Bangladesh who are vulnerable to extortion emerged clearly from the material before the Tribunal.

1. The Tribunal is not obliged to deal with claims which are not articulated, and which do not clearly arise from the materials before it: see the Full Court in NABE (No 2). See also: VQAB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 104 at [25] and [31], WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 75 ALD 630 at [44], Htun v Minister for Immigration and Multicultural Affairs [2001] FCA 1802; (2001) 194 ALR 244 at [42], Paul v Minister for Immigration and Multicultural Affairs [2001] FCA 1196; (2001) 113 FCR 396 at [79]).
2. Relevantly, in NABE (No 2) the Full Court held:

[58] The review process is inquisitorial rather than adversarial. 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] FCA 1901; (2000) 106 FCR 157 at [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] FCA 1693; (1998) 94 FCR 28 at 63 (Merkel J); approved in Sellamuthu v Minister for Immigration and Multicultural Affairs [1999] FCA 247; (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] FCA 263; (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] FCAFC 120; at 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.

1. In SZUTM v Minister for Immigration and Border Protection [2016] FCA 45 (SZTUM), Markovic J held at [33]:

1. Her Honour also emphasised in SZUTM that NABE (No 2) must be read in light of the principles set out in Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 77 ALJR 1088 (Dranichnikov). In Dranichnikov the High Court held that if the Tribunal fails to make a finding on "a substantial, clearly articulated argument relying upon established facts" that failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction. Therefore, Markovic J held that in order for a claim to be "raised squarely" or "emerge clearly" on the materials before the decision-maker, it must be based on "established facts": SZUTM at [38].
2. In AWT15 v Minister for Immigration and Border Protection [2017] FCA 512 (AWT15) at [67] Barker J observed that a finding that a claim emerged clearly from the materials before the decision-maker was not to be "made lightly" and that "the fact that a claim "might" be seen to arise on the materials is not enough: NABE at [68]" (AWT15 at [67]).

1. The applicants were represented by a lawyer in the original application for a protection visa before the delegate, on the review of the delegate's decision in the Tribunal, and in these proceedings. In my view, this is a significant factor in determining this application.
2. Where an applicant has assistance from a migration lawyer from the outset of the protection visa application process, the lawyer has a bearing on whether or not a particular unarticulated claim can be said to have arisen squarely on, or emerged clearly from, the material before the Tribunal. As Bromwich J held in COE17 v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] FCA 669 at [9]:

[9] ...It is not for this Court to ferret around and construct a claim when none has been made, or to isolate an issue that was not readily apparent, especially when the appellant was represented by a migration agent who was also a legal practitioner: see the summary of principles about the duty to consider claims and issues arising from material before the Authority in AYY17 v Minister for Immigration & Border Protection [2018] FCAFC 89; 261 FCR 503 at [18]; see also SZSHK v Minister for Immigration & Citizenship [2013] FCAFC 125; 138 ALD 26 at [37].

1. Similar observations were made by the Full Court in Minister for Immigration and Citizenship v Khadgi [2010] FCAFC 145 at [83] per Stone, Foster and Nicholas JJ
2. The claim which the first applicant expressly articulated or advanced to the delegate was the protection claim that he feared returning to Bangladesh because of his political opinion. More specifically, he claimed to be a member of the BNP and would be targeted by supporters and members of the AL on account of his political opinion (Court Book (CB) page 331) (I will refer to this claim as the applicant's political opinion claim).
3. In my view, there was no express protection claim articulated or advanced by the first applicant before the delegate that he would encounter harm in Bangladesh because of his membership of a particular social group, that being, wealthy businessmen in Bangladesh who are vulnerable to extortion.
4. Similarly, during review in the Tribunal, in my view, the only express claim articulated or advanced by the first applicant was his political claim, namely the claim that he feared returning to Bangladesh because he was a member of the BNP and will be targeted by supporters and members of the AL. This much is clear, for example, from the written submissions provided by the first applicant's representative to the AAT dated 14 May 2018 which sits out the articulated or advanced claim being made by the first applicant on CB page 591 as follows:

(2003) 77 ALJR 1088

(2001) 194 ALR 244

(2024) 280 CLR 321

(2019) 264 CLR 421

(2001) 113 FCR 396

(2004) 217 CLR 387

(2016) 241 FCR 214

(2000) 204 CLR 1

(2000) 106 FCR 157

(1998) 94 FCR 28

(1999) 90 FCR 287

(2001) 107 FCR 184

(2003) 129 FCR 137