DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

1. The appeal be allowed.
2. Orders 2 and 3 made by the Federal Circuit and Family Court of Australia (Division 2) in proceeding SYG 2202 of 2017 on 8 December 2021 be set aside.
3. The decision of the second respondent made on 29 June 2017 in respect of the appellants' application for protection visas (case number 1605588) be quashed.
4. The matter be remitted to the second respondent for determination according to law.
5. The first respondent pay the appellants' costs of the appeal and of the proceeding below. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Introduction 1 The appellants appeal from a judgment of the Federal Circuit and Family Court of Australia (Division 2) (the FCFCA) on 8 December 2021: DDK17 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FedCFamC2G 331 (J). The FCFCA dismissed the appellants' application for judicial review of a decision of the second respondent, the Administrative Appeals Tribunal (the Tribunal), given on 29 June 2017. The Tribunal's decision affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister), not to grant protection visas under s 65 of the Migration Act 1958 (Cth) to the appellants. 2 The first appellant and the second appellant are husband and wife. They are citizens of Pakistan. They arrived in Australia in March 2014 as the holders of visitor visas. On 8 October 2015, they applied for protection visas. The second appellant's claims for protection are based on the first appellant's (her husband's) claims. 3 In its Decision Record (T), the Tribunal said that the first appellant raised two claims to fear harm if returned to Pakistan. The first was that he had converted from the Sunni faith to the Shia faith in Pakistan. The second was that he was a member of a particular social group, namely wealthy Pakistani men who would be at risk of harm in Pakistan: T[9]. 4 The Tribunal was not satisfied that the first appellant had a well-founded fear of persecution based on these claims: T[58]. First, the Tribunal noted that, during the course of the hearing before it, the first appellant abandoned his claim to fear harm as a wealthy Pakistani man: T[59]. Secondly, as to the remaining claim, the Tribunal was not satisfied that the first appellant or, for that matter, his entire family, had converted to the Shia faith, as the first appellant had claimed: T[65]. At T[67], the Tribunal said: 67. The Tribunal finds on its assessment of the overall evidence and the applicant's credibility that the [applicant's] motivation in applying for a protection visa is to remain in Australia to be with other members of his family and cared for by that family and to continue to receive healthcare for he (sic) and his wife. The Tribunal accepts, based on the medical information provided, that the applicants have a number of medical conditions. 5 At T[68], the Tribunal continued: 68. The Tribunal has considered the applicant's claims both individually and cumulatively and does not accept on the basis of the evidence and materials and information before it that the applicant faces a real chance of serious harm for a refugee criterion reason if he returned to Pakistan either now or in the reasonably foreseeable future. 6 In their application for judicial review in the FCFCA, the appellants alleged that the Tribunal had "committed jurisdictional error by failing to properly consider an integer of the [first appellant's] claim". Although the application raised two other grounds of review, this is the only ground on which the appellants relied. The ground is poorly particularised in the application, but its gist was summarised by the primary judge (at J[13]): 13 Ground 3 was a claim that the Tribunal committed jurisdictional error by failing to properly consider the claim raised on behalf of the applicants that the friendship between the first applicant's son and another person, who was claimed to have been killed by the Taliban, could result in the applicants being persecuted. … 7 The "other person" referred to is named in the Tribunal's reasons. The primary judge identified the person by the abbreviation SZ. In this appeal, the person has been identified as, simply, Z. 8 The primary judge dismissed the application for judicial review, finding that the Tribunal did consider the appellants' claims based upon the material that was before it: J[20]. 9 The appellants' appeal to this Court is on a single ground of appeal, expressed as follows: The primary Judge erred in finding that the Administrative Appeals Tribunal made no jurisdictional error in the manner it considered the [appellants'] claim to fear harm on being returned to Pakistan by reason of the friendship of the [appellants'] son with Mr Z. 10 This ground, again, is poorly articulated. It does not reflect the full breadth of the appellants' submissions, particularly the submissions that were developed orally, which were to the effect that the first appellant had made a claim to fear persecution, if returned to Pakistan, on the basis that he is perceived to be a Sunni who is sympathetic to Shia Muslims. In significant part, this perception is said to have been derived from the appellants' eldest son's friendship with Z, who was a frequent visitor to the appellants' home, and who inspired the first appellant to convert from the Sunni faith to the Shia faith, and to associate with Shia Muslims. While drawing attention to this somewhat belated and more fulsome exposition of the first appellant's claim, the Minister did not contend that the appellants should not be permitted to advance their appeal on the basis that the Tribunal had not considered this claim and that the primary judge had erred in finding that the Tribunal had considered all the claims before it. 11 The central question in this appeal is whether the first appellant advanced this claim for protection in the appellants' application for review before the Tribunal. The appellants say it was advanced. The Minister says it was not advanced. Further, the Minister contends that if, arguably, any such claim had been articulated in the appellants' protection visa applications (a matter which the Minister does not concede), then that claim was, in effect, disavowed by the first appellant in the evidence he gave to the Tribunal. In this regard, the Minister relies on the observations of Bennett J in SZEIV v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1798 (at [34]): 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.