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

Relevant principles 12 Where the Tribunal fails to make a finding on a substantial, clearly articulated argument relying upon established facts, the failure can amount to a failure to accord procedural fairness and a constructive failure to exercise jurisdiction: Dranichnikov v Minister for Immigration and Multicultural and Indigenous Affairs [2003] HCA 26; 197 ALR 389 at [24] - [25] and [86] - [89]. Whether there has been such a failure raises a question of substance, not a matter of form of the Tribunal's published reasons: Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 184; 236 FCR 593 (WAEE) at [45]. 13 In WAEE, the Full Court said (at [46] - [47]): 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. Moreover, there is a distinction between the Tribunal failing to advert to evidence which, if accepted, might have led it to make a different finding of fact (cf Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [87]-[97]) and a failure by the Tribunal to address a contention which, if accepted, might establish that the applicant had a well-founded fear of persecution for a Convention reason. The Tribunal is not a court. It is an administrative body operating in an environment which requires the expeditious determination of a high volume of applications. Each of the applications it decides is, of course, of great importance. Some of its decisions may literally be life and death decisions for the applicant. Nevertheless, it is an administrative body and not a court and its reasons are not to be scrutinised 'with an eye keenly attuned to error'. Nor is it necessarily required to provide reasons of the kind that might be expected of a court of law. 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. 14 Jurisdictional error may also arise if the Tribunal makes an error of fact by misunderstanding or misconstruing a claim advanced by the visa applicant, and then basing its conclusion, in whole or in part, on that misunderstanding or misconstruction. Such an error may be tantamount to a failure to consider the claim and may - not necessarily will - constitute a jurisdictional error. The same may be true of a claim that is raised by the evidence - even if not expressly raised by the visa applicant - which is then misunderstood or misconstrued by the Tribunal. Each case will turn on its own circumstances: NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) [2004] FCAFC 263; 144 FCR 1 (NABE) at [63]. 15 In NABE, the Full Court said (at [58]): 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) 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. 16 In order to consider the question raised on this appeal, it is necessary to delve deeper into the material that was before the Tribunal, and of the Tribunal's Decision Record.

The material before the Tribunal and the Decision Record 17 At T[12] - [16], the Tribunal summarised the contents of a written statement that the first appellant had provided in support of his application for a protection visa. Although lengthy, it is appropriate to quote the summary in full: 12. The applicant provided a typed statement in the English language in support of his protection Visa application. In summary he referred briefly to his background in Pakistan. He referred to his family and his children and that a number of his children were residing in Australia. He said he had retired as a seaman since 2001 and referred to having come to Australia in 2014 on a tourist Visa and then receiving a medical Visa in relation to medical treatment provided to the second named applicant. The applicant said that he had left Pakistan "because I am a Muslim and I fear that I will be harmed by the Taliban". He claimed that the Taliban "hate most of Muslims and there is constant ongoing conflict". He referred to one of his son's having a best friend [Z] who was a Shia Muslim who belonged to the "Anjuma E Tableeg E Aza Community". He claimed [Z] performed an active role in keeping peace and collecting funds for orphans but the Taliban and were opposed to his activities and had threatened him and told him to stop his activities and that the Taliban killed him. The applicant claimed [Z] had often visited his home because of his friendship with the applicant's son (Abdul Rashid). The applicant claimed that he had been influenced by [Z]'s activities and had decided "to convert to Shia faith". He claimed that he had visited on several occasions a Shia organisation and mosque. He claimed as a result the Taliban started targeting his son and his family. The applicant claimed he began receiving threatening telephone calls from unknown telephone numbers. 13. He claimed that the Taliban thought his family belonged to the Shia faith and that they were working against the Taliban and and (sic) they had seen the applicant's son with [Z]. He claimed that his eldest son (Abdul Rashid) was kidnapped by the Taliban and held for ransom. He claimed he received telephone calls demanding that he pay 1000000 rupees and he claimed that he was told to stop working against the Taliban and not to convert to the Shia faith and to pay the money demanded or his son would be killed. He claimed that he had spoken to the authorities to help in finding his son. He claimed his son was kept and tortured for a few days but he was able to give the Taliban 1000000 rupees and his son was released. He claimed that a few months later the Taliban demanded further money and he refused to pay them and his eldest son left Pakistan and went to Malaysia and then came to Australia "via boat". The applicant claimed he left Pakistan and came to Australia and he was "much stressed". 14. He claimed that he had been told by a relative and friends of his and "other Shia organisation community members" that his youngest son had been kidnapped and he was advised not to return to Pakistan. He claimed his wife's health had deteriorated and that he was "full of sorrow" because of his son's kidnapping. 15. He claimed that if he returned to Pakistan he and his family would be killed by the Taliban. He claimed he would continue to be persecuted and his family targeted by the Taliban. He referred to the death of [Z] and that the Taliban knew that he had visited the applicant's home. He referred to problems in Pakistan and the differences between different political parties and different types of "believes" and said there was a history of conflict between the many groups. He claimed there were many different types of religious and mafia and political parties involved in conflicts. He claimed he would face "severe persecution at the hands of the Taliban in my area". He made reference to a number of media and Internet articles but other than providing references to the links he did not provide copies of the media articles. He claimed that the police in Pakistan had not protected him or his family and that the police could not protect themselves in Pakistan. He also claimed that some members of the police were also members of the Taliban and that they would not help or protect the applicant and his family. 16. He claimed that he had tried to get help from Pakistan authorities when his son had disappeared and he claimed they did not help him. He claimed that he had considered relocating within Pakistan "but nowhere is safe where all cities has been bomb blasts few times where Taliban accepted they did it". He said he did not feel safe anywhere in Pakistan and referred to the death of Prime Minister Benazir Bhutto in 2007. He referred to thousands of people being killed by a bomb blasts and that there are also targeted killings that sometimes involved "agencies". He said there was a worsening security situation in Pakistan and that there was continuing instability and violence all over Karachi and other states. He claimed that local militants "no about the financial positions of kidnap those who can pay them the ransom money. Poor people kidnapped for ransom a killed as they cannot pay the money". He made reference to some media and Internet articles in support of his claims but did not provide copies of those articles/reports. The Tribunal notes that some of the references referred to by the applicant appeared to relate to events in Pakistan between 2011 and 2012 and there were also references to reports in 2010. 18 The written statement was before the delegate who assessed the first appellant's claims. The delegate found that the first appellant was a truthful witness. She said: He spoke honestly and openly and I am satisfied that he was recounting events from his personal experiences. He was [candid] and I am satisfied that he did not embellish or exaggerate his claims. 19 Although the delegate did not accept that the first appellant had converted from the Sunni faith to the Shia faith, she did accept that he had been targeted because of his "pro-Shia" views and associations. The delegate accepted that the first appellant was sympathetic to Shia Muslims and that he had previously engaged with Shia Muslims, despite threats and violence from anti-Shia groups. 20 It is tolerably clear from the first appellant's written statement that he was advancing this claim as an independent claim, and that it was a claim based upon association - in particular, but not exclusively, association with Z. 21 Thus, the delegate proceeded to assess the first appellant's claims for protection on the basis that he was a Sunni who was perceived to be sympathetic to Shia Muslims. The delegate recognised that this was an independent claim which the first appellant had made and that this claim was separate and distinct from the two other claims - namely, that he feared persecution because he was a convert to the Shia faith, and that he feared persecution because he belonged to a particular social group (wealthy Pakistani men). 22 The delegate accepted, and found, that the first appellant feared that he would be killed or physically harmed in Pakistan because, amongst other things, he is a Sunni who is sympathetic to Shia Muslims. She found that this was an essential and significant reason for the first appellant's feared persecution. She accepted that the feared persecution involved serious harm arising from systematic and discriminatory conduct. However, based on country information, the delegate was not satisfied that the first appellant's fear was well-founded. She said: I am not satisfied that the Applicant has more than a remote or speculative chance of serious harm and, therefore, … he does not have a real chance of serious harm (on the basis of his Sunni religion and pro-Shia view) from the Taliban or other Sunni extremist groups, now or in the reasonably foreseeable future if he returns to Pakistan. 23 Left at that, the appellants would have had every reason to assume that, when the matter came before the Tribunal on review, the question would not have been whether the first appellant was making this claim, but whether his fear of persecution, on the basis of this claim, was well-founded. 24 As I have noted above at [3], the Tribunal considered that the first appellant's claims for protection were confined to two claims: first, that he feared persecution because he had converted from the Sunni faith to the Shia faith in Pakistan; and secondly, that he feared persecution as a member of a particular social group (wealthy Pakistani men). But these were only two of the claims that the first appellant had made and only two of the claims that the delegate had assessed. 25 It is not clear how the Tribunal came to record only two claims. The first appellant's written statement was before the Tribunal, as was the delegate's reasons and findings. There is nothing on the face of the Tribunal's Decision Record which suggests that the first appellant had resiled from his claim to fear persecution as a Sunni who is perceived to be sympathetic with Shia Muslims. 26 What is more, the Tribunal recorded that it had questioned the first appellant regarding his association with Z. It seems, however, that it did so only through the lens of the first appellant's claimed fear of persecution based on his asserted conversion from the Sunni faith to the Shia faith: T[23] - [25]. Nevertheless, in that context, the first appellant seems to have raised not only the fact of his conversion but also the fact that he was sympathetic to Shia Muslims: T[26] - [27]. Moreover, despite rejecting the first appellant's claim to have converted to the Shia faith, the Tribunal accepted that the first appellant was "sympathetic to people who follow the Shia faith and … may have provided physical support to Shia organisations in Pakistan": T[65]. The Tribunal also accepted the first appellant's claims about Z's death (in circumstances where, before an adjourned hearing by the Tribunal, the first appellant provided documents to the Tribunal concerning Z's death and the targeted killing of Shia men), and that Z may have been friendly with the appellants' eldest son: T[35] and [65]. However, unlike the delegate, the Tribunal did not consider these matters beyond the first appellant's claim to have converted to the Shia faith.

Analysis 27 On the material before me, I am satisfied that the first appellant's claims included a claim to fear persecution in Pakistan on the basis that he is perceived to be a Sunni who is sympathetic to Shia Muslims, and that the Tribunal failed to engage with that claim. I am satisfied that the Tribunal either misunderstood or misconstrued the first appellant's claims and, in doing so, effectively treated this particular claim as nothing more than incidental to his claim to have converted to the Shia faith, rather than as a separate, independent, and substantively different claim. 28 The first appellant was unrepresented before the Tribunal. It is unlikely that he would have been alive to the possibility that, through error, the Tribunal might have disregarded, or at least diverted its attention from, the independent claim of association and pro-Shia sympathy which the delegate had considered. Given that the first appellant's written statement and the delegate's reasons were before the Tribunal, there would be no reason for the appellants to think that the Tribunal would take a different view of what the first appellant's claims actually were. 29 I am not persuaded to a different view by the Minister's submissions. The Minister contends that the effect of the first appellant's oral evidence to the Tribunal, as recorded in T[23], [41] - [42], and [45] - [46], is that the first appellant disavowed his claim to fear harm based on his association with, and sympathy towards, Shia Muslims. However, these paragraphs from the Tribunal's Decision Record simply reflect evidence given to the Tribunal by the first appellant about his conversion to the Shia faith, the significance of that conversion, and other unrelated matters. I do not accept that this evidence stands as either an express or implicit disavowal by the first appellant of his claim to fear harm because of his association with, and sympathy towards, Shia Muslims. 30 In particular, the evidence recorded at T[41] - [42] is that the first appellant had informed the Tribunal that the "main reason" he feared harm in Pakistan was because "he had changed/converted to the Shia faith": T[41]. This, however, appears to have been in the context of the Tribunal challenging the first appellant about his claim to also fear harm on the basis of his membership of a particular social group (wealthy Pakistani men) - a claim which the Tribunal found that the first appellant had abandoned: T[42]. 31 In any event, T[42] records that the first appellant informed the Tribunal that: 42 … he thought he was at risk because of his religious conversion in Pakistan and that he thought he was being targeted for harm on a religious basis. (emphasis added) 32 The emphasised passage stands as an expressed reason for feared persecution that is distinct from the first appellant's asserted conversion. It is consistent with the advancement of a claim of feared persecution because of the first appellant's association with, and perceived sympathy for, Shia Muslims. 33 The Minister's reliance on T[45] - [46] appears to be that when the first appellant was asked whether "he had anything else to raise with the Tribunal about his claims", the first appellant raised nothing further with the Tribunal other than some minor matters that are not relevant to the present appeal. But, seen in the context of the first appellant's written statement, the delegate's reasons, the first appellant's evidence about Z and his association with Z, the fact that the first appellant had provided documents to the Tribunal about Z's death and targeted killing of Shia men, the fact that the first appellant had informed the Tribunal of his overt sympathy for those who followed the Shia faith, and the fact that he had provided physical support to Shia organisations, it is unremarkable that the only further matters raised by the first appellant appear to have been to minor matters to which I have alluded. 34 The Minister also contends that the Tribunal made a finding of greater generality at T[67] which subsumed and necessarily rejected all other potential claims to fear future serious or significant harm. This is the finding I have quoted at [4] above, which is to the effect that the first appellant's motivation in applying for a protection visa is to remain in Australia to be with, and to receive care from, other members of his family, and the healthcare system. 35 I do not accept that submission. The fact that the first appellant might be so motivated to remain in Australia does not belie the possibility - not considered by the Tribunal - that the first appellant also has a real and genuine fear of persecution, on the basis of his perceived Shia sympathies. 36 But, perhaps more importantly, it is abundantly clear that, when it made its finding at T[67], the Tribunal was simply not cognisant of the discrete claim that the first appellant had made concerning his association with, and sympathy towards, Shia Muslims. Thus, in making its finding at T[67], the Tribunal could not have been intending to make a finding of greater generality that encompassed this discrete claim. The Tribunal simply did not turn its mind to the substance of the claim. 37 The primary judge's reasons do not, with respect, grapple with the appellants' contention that the Tribunal did not properly consider - indeed, did not consider at all - the first appellant's claim to fear persecution based on his association with, and sympathy towards, Shia Muslims. 38 It is true that, in the proceeding below, the appellants' identification of the operative jurisdictional error may not have been put as clearly as it has been in the submissions in this appeal, largely because of its focus on the relationship between Mr Z and the first appellant's eldest son. However, as I have said, the primary judge was apprised of the substance of the appellants' case. 39 I am satisfied that the primary judge erred in concluding that the Tribunal did consider the first appellant's claims based upon the material before it. His Honour ought to have held that the Tribunal did not consider the first appellant's claim to fear persecution based on his association with, and sympathy towards, Shia Muslims. 40 This conclusion is also dispositive of the Minister's notice of contention filed 18 March 2022, which is to the effect that the primary judge did not find, but should have found, that the first appellant made no claim to fear persecution based on his association with Z; that if such a claim had been made, the first appellant disavowed it in his oral evidence to the Tribunal; and that the Tribunal's finding at T[67] is a finding of greater generality that necessarily rejected any and all potential claims by the appellants to fear future serious and significant harm. I have rejected the substance of each proposition. 41 The result is that the appeal will be allowed. The orders made by the primary judge dismissing the appellants' application for judicial review will be set aside, and the Tribunal's decision will be quashed. The matter will be remitted to the Tribunal for determination according to law. 42 At the hearing, the Minister raised the question of costs should the appeal be allowed. The Minister did so on the basis that the appellants' submissions advanced at the hearing have a different focus than the submissions advanced below and, indeed, the submissions filed in the appeal itself. 43 I accept that, at the hearing, the appellants' submissions were advanced with a different focus. However, the submissions advanced were more in the nature of a refinement of, rather than a fundamental departure from, the case that was put to the primary judge. I am satisfied that the Tribunal's decision was affected by jurisdictional error and that the judgment under appeal does not engage with the possibility of the error I have found. Indeed, the Minister made clear that a notice of contention had been filed because the primary judge did not grapple with the case before him, specifically the particular case that the Minister advanced as to why the Tribunal's decision was not affected by jurisdictional error, as alleged. I have, however, rejected the substance of each proposition which the Minister advanced in the proceeding below, as reflected in the notice of contention. 44 The appropriate order is that the Minister should pay the costs of the appeal and of the proceeding below. I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Yates.