DFU16 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Federal Court of Australia|2021-03-16|Before: Middleton J

The First Respondent be given leave to file a Notice of Contention out of time and to file the affidavit of Maria Ngo sworn on 20 November 2020.
The appeal be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 On 3 June 2020, the Federal Circuit Court of Australia ('FCC') dismissed an application for judicial review of a decision of the Administrative Appeals Tribunal ('Tribunal') dated 10 October 2016: see DFU16 v Minister for Immigration [2020] FCCA 1376 ('FCC Judgment'). The Tribunal had affirmed a decision of a delegate of the first respondent, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs ('Minister') ('Delegate') not to grant a protection visa (subclass 866) to the appellant ('Tribunal Decision') pursuant to s 65 of the Migration Act 1958 (Cth) ('Act'). 2 By notice of appeal filed on 18 June 2020, the appellant now appeals from the FCC Judgment on one ground, namely that the FCC erred in finding that the Tribunal had not failed to consider the appellant's claim that he was eligible for a protection visa by reason of either s 36(2)(b) or s 36(2)(c) of the Act ('dependant claim'). That is, on the basis that he was a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia owes protection obligations under either s 36(2)(a) or s 36(2)(aa) of the Act. 3 In response, the Minister raises two arguments: (1) the Court below was correct to find that the dependant claim did not squarely arise on the material before the Tribunal; and (2) even if the Tribunal erred in not considering the dependant claim, the appellant could not have met an essential criterion of the visa, namely that he was a member of the same family unit as a non-citizen, as the appellant's father was in fact an Australian citizen at the time of the Tribunal hearing and, critically, the Tribunal Decision. 4 In respect of the second argument, the Minister seeks leave to rely on a notice of contention and further evidence in the form of the affidavit of Maria Ngo sworn 20 November 2020 ('Ngo Affidavit'). The Minister applied for an extension of time to file the notice of contention. 5 For the reasons set out below, I have concluded that the FCC did not err in concluding that the Tribunal had not failed to consider the dependant claim, with the consequence that the appeal must be dismissed. Having regard to that conclusion, it is unnecessary for me to determine the issues raised in the notice of contention.

FACTUAL AND PROCEDURAL BACKGROUND 6 The appellant was born on 26 December 1990 and is a citizen of Sri Lanka. He arrived in Australia at the age of 21 on 9 August 2012 and applied for a protection visa on 12 December 2012. In support of his visa application, the appellant provided a statutory declaration setting out his claims, which focused on his treatment in Sri Lanka by Sri Lankan authorities while he was a child (including the fact of his father travelling to Australia to escape Sri Lankan authorities) and events in July 2012, at which time the appellant alleged he was threatened by members or supporters of the Eelam People's Democratic Party ('EPDP'). These claims were based on the appellant's imputed political opinion (anti-EPDP) and membership of a particular social group (family member of person granted asylum in Australia). 7 The factual and procedural history of the matter is otherwise comprehensively and accurately set out at paragraphs 3 to 22 of the FCC Judgment and need not be repeated.

REASONS OF THE FCC 8 Relevantly to the appeal in this Court, the FCC considered the applicable criteria in s 36(2)(b)- (c) of the Act, as well as the relevant definitions of "member of the same family unit", "member of the family unit" and "dependent" in the Act and the Migration Regulations 1994 (Cth) ('Regulations'). The FCC considered the submissions of the parties but ultimately concluded that the dependant claim did not squarely arise on the material before the Tribunal for the following reasons. (1) The visa application listed the appellant's father as a member of his family unit but not in a way that indicated this fact related to the appellant's reasons for claiming protection. (2) The visa application merely indicated that the appellant's father was a permanent resident and not that he had a protection visa. (3) In the visa application, the appellant only discussed his father's situation in the context of making a claim as a member of a particular social group of persons, being a family member of a person who has been granted asylum in Australia. (4) While there was no explicit section of the visa application that provided for the appellant to indicate he sought to meet the criteria in either s 36(2)(b) or (c) of the Act, the appellant was represented at the time and was asked to provide as much information in support of his application as possible. (5) The dependant claim did not appear to have been raised in the interview with the Delegate (where the appellant's agent was also present) and was not raised in the appellant's submissions before the Tribunal, which included extensive written pre-hearing and post-hearing submissions, as an issue under review. (6) As the appellant was represented, it would be expected he would clearly articulate the dependant claim. (7) There was nothing in the material before the Tribunal to indicate the appellant was seeking to demonstrate that he was dependent on his father such that they were within the same family unit for the purpose of either s 36(2)(b) or (c) of the Act.

STATUTORY CRITERIA 9 There are a number of relevant statutory provisions that applied at the time of the Tribunal Decision on 10 October 2016. The core criterion for the grant of a protection visa is located at s 36(2) of the Act, which provides: A criterion for a protection visa is that the applicant for the visa is: (a) a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or (aa) a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or (b) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (a); and (ii) holds a protection visa of the same class as that applied for by the applicant; or (c) a non-citizen in Australia who is a member of the same family unit as a non-citizen who: (i) is mentioned in paragraph (aa); and (ii) holds a protection visa of the same class as that applied for by the applicant. 10 "Member of the same family unit" is defined in s 5 of the Act as follows: member of the same family unit: one person is a member of the same family unit as another if either is a member of the family unit of the other or each is a member of the family unit of a third person. 11 "Member of the family unit" is also defined in s 5 of the Act by reference to the Regulations as follows: member of the family unit of a person has the meaning given by the regulations made for the purposes of this definition. 12 "Member of the family unit" is relevantly defined in reg 1.12(1) of the Regulations as follows: For the definition of member of the family unit in subsection 5(1) of the Act, and subject to subregulations (2), (2A), (6) and (7), a person is a member of the family unit of another person (in this subregulation called the family head) if the person is: […] (b) a dependent child of the family head or of a spouse or de facto partner of the family head…. 13 Regulation 1.05A(2) of the Regulations relevantly prescribes when a person will be dependent on another person as follows: A person (the first person) is dependent on another person for the purposes of an application for: (d) a protection visa; […] if the first person is wholly or substantially reliant on the other person for financial, psychological or physical support. 14 Regulations 866.211 and 866.221 of Sch 2 of the Regulations also provide for the following criteria that must be satisfied for a subclass 866 permanent protection visa at the time of application and decision: 866.21 - Criteria to be satisfied at time of application 866.211 (1) Subclause (2) or (3) is satisfied. (2) The applicant: (a) claims that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant; and (b) makes specific claims as to why that criterion is satisfied. Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations. (3) The applicant claims to be a member of the same family unit as a person: (a) to whom subclause (2) applies; (b) who is an applicant for a Subclass 866 (Protection) visa. Note: See paragraphs 36(2)(b) and (c) of the Act. 866.22 - Criteria to be satisfied at time of decision 866.221 (1) Subclause (2) or (3) is satisfied. (2) The Minister is satisfied that a criterion mentioned in paragraph 36(2)(a) or (aa) of the Act is satisfied in relation to the applicant. Note: Paragraphs 36(2)(a) and (aa) of the Act set out criteria for the grant of protection visas to non-citizens in respect of whom Australia has protection obligations. (3) The Minister is satisfied that: (a) the applicant is a member of the same family unit as an applicant mentioned in subclause (2); and (b) the applicant mentioned in subclause (2) has been granted a Subclass 866 (Protection) visa. Note: See paragraphs 36(2)(b) and (c) of the Act.

LEGAL PRINCIPLES 15 The principles associated with a failure to consider a claim that gives rise to jurisdictional error are well-settled. 16 The appellant must show that he had "sufficiently raised the relevant issue" (ie the dependant claim) before the Tribunal: see NABE v Minister for Immigration and Multicultural and Indigenous Affairs (No 2) (2004) 144 FCR 1 ('NABE') at [60] (Black CJ, French and Selway JJ) quoting SGBB v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 364 at [18] (Selway J). 17 In this respect, Allsop J (as his Honour was then) in NAVK v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 1695 ('NAVK') stated (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 I accept, as the Appellant suggests, that a matter that "squarely" arises does not need to be raised as a claim if it is self-evident from materials which, if accepted, would have satisfied the statutory test (in this case, the test set out in s 36(2)(b) or (c)): see NABE at 18-19 [58]; SDAQ v Minister for Immigration & Multicultural and Indigenous Affairs (2003) 199 ALR 265 at 273 [19] (Cooper J). Whether a matter is squarely before a Tribunal is determined objectively by reference to the facts of each case but it must be "tolerably clear" (NAVK at [15]) from the material itself such that a competent Tribunal would appreciate its existence. 19 The position in NABE reflects the principle expressed in Paramananthan v Minister for Immigration (1998) 94 FCR 28 at 63 (Merkel J), which emphasises the inquisitorial nature of the review proceedings and reminds us that articulation of the case is not required where the ground is apparent from the materials before the Tribunal. 20 The assessment of whether a Tribunal acting reasonably could have appreciated the existence of a claim should be undertaken by a reviewing court as best as it can without the advantage of hindsight: MZAJC v Minister for Immigration & Anor [2016] FCA 208 ('MZAJC') at [11] (Mortimer J). It is not for the reviewing court to retrospectively piece together a possible claim that might have been made before the Tribunal: MZAJC at [12] (Mortimer J). 21 I accept that this duty to review according to the merits is unaffected by whether or not a party is represented, as representation may affect duties in relation to procedural fairness but cannot alter the fundamental requirements of the Tribunal's inquisitorial review. 22 Jurisdictional error will only arise where it is established that the failure to consider was material to the relevant decision (ie the Tribunal Decision): see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [32]-[37] (Kiefel CJ, Gageler and Keane JJ).

DISCUSSION OF THE APPELLANT'S ARGUMENT 23 The appellant argues that the FCC erred by imposing too strict a standard for when a claim arises from the materials. The appellant says this error arose from three key overlapping errors: (a) the inferences it drew from the fact of the Appellant's legal representation to support the conclusion that a claim was not raised; (b) the burden it imposed on the appellant to advance the dependant claim; and (c) the restrictive view it took of the Tribunal's obligation to consider.

The significance of legal representation 24 The appellant submits that a key factor that led the FCC to its conclusion that the Tribunal was not under a duty to consider the dependant claim was the fact that the appellant was represented at all times. Reference is made to the following paragraphs in the FCC Judgment: [45] …However, in circumstances where the Applicant was represented and it was indicated that 'everything' should be disclosed, it would be reasonable to expect that if the Applicant was seeking to advance a claim under ss 36(2)(b) and (c) of the Act there would, to some extent, have been a reference to this in in the Visa Application Form or his statement. There was not. […] [49] ….One would expect that, in circumstances where the Applicant was represented at all times, any claim on this basis would have been clearly articulated, arguments would have been advanced as to the Applicant's dependency and, in light of the Delegate having overlooked the purported claim, the Applicant's representatives would have clearly raised the matter as an "issue" before the Tribunal. They did not. […] [52] …Further the fact that the Applicant had legal assistance throughout the Visa application process implores that, were such a claim being advanced, it would, at the least, have been articulated in some appreciable way. Here it was not, and therefore the Court is not satisfied that the claim was in fact made. 25 However, I do not consider the FCC fell into error by inferring from the fact of representation that the Tribunal was not required to consider the dependant claim. The FCC was merely putting into context the circumstances which were before the Tribunal, circumstances which need to be considered in defining whether objectively it was "tolerably clear" from all the material that certain facts were being put before the Tribunal for decision.

Burden to advance the claim and the Tribunal's obligation to consider 26 Similarly, I do not consider the FCC was setting down a rule or suggesting that the appellant was required to expressly advance the claims in some way. The FCC correctly identified the applicable legal principles. As the FCC recognised, there is no requirement to expressly advance a claim to attract the review obligation of the Tribunal. However, where a claim has not been expressly advanced, the claim must still be advanced in the sense that it is apparent on the face of the material: see NABE at 19 [58]. It is not the Tribunal's obligation to consider criteria for an application never made: NABE at 20 [62]. See also MZAJC at [10]-[13] (Mortimer J). 27 The appellant submits that the evidence and materials before the Tribunal "raised a case" for the dependant claim such that the Tribunal was required to consider it. This is because: (a) the appellant's personal circumstances had been disclosed in the visa application and relevantly showed that the appellant: (i) was unemployed with no discernible source of income; (ii) lived with his father; and (iii) was single, which would show he was at least substantially reliant on his father for financial support; and (b) the facts of the appellant's father's status as a person who had been granted a protection visa were discussed and accepted by both the Delegate and the Tribunal. 28 The appellant submits that it was clear that the necessary information to support the dependant claim was before the Tribunal and, absence express disclaimer of an apparent claim, the Tribunal was therefore required to consider it. 29 However, in my view the Tribunal and the FCC did not fall into error. It is important to consider all the circumstances before the Tribunal to see what it should have done in the review. The claim itself (not only the facts that would support it) must arise "tolerably clearly" (NAVK at [15]) such that a Tribunal acting reasonably could have appreciated the existence of the claim. The Tribunal is not obliged to consider every possible claim that might arise from the facts before it. In this instance, the dependant claim did not squarely arise on the material.

The visa application 30 The claim did not squarely arise from the visa application material itself. The application recorded that the appellant did not have any employment history and was unemployed in Australia. In respect of the appellant's family situation, in response to the question of whether there were members of the same family unit in Australia but not included in the application, the appellant did not give a "yes" or "no" answer but referred to "Appendix A". This appendix, among other things: (a) listed members of the same family unit as the appellant, including the appellant's father; (b) included the appellant's father's residential address in St Albans, Victoria ('St Albans Address') in Australia; (c) recorded that the appellant had been residing at the St Albans Address for approximately four weeks' since he arrived in Australia; (d) indicated that the appellant's father was a permanent resident of Australia (although not that he had a protection visa). There was no further suggestion that the appellant was a dependant of his father. This appendix must also be seen in the context of the statutory declaration setting out the appellant's claims, which only mentioned the appellant's father in the context of his claim to fear harm as a member of a particular social group, namely as a family member of someone who had been granted asylum in Australia. In isolation, it could be said that the appellant was financially reliant on his father if he had no employment history and they were living together. However, context is important when considering whether a claim of dependency (in the sense of being wholly or substantially reliant) on the appellant's father is to be implied from all the materials before the Tribunal.

Material before the Delegate 31 Then, as the Minister contends, the dependant claim did not appear to have been raised before the Delegate. Clearly the Delegate was aware of the criteria in s 36(2)(b) and (c) and mentioned that criteria in the decision record. The Delegate was also informed (and accepted) that the appellant's father had applied for and been granted a protection visa. However the status of the appellant's father was only raised before the Delegate in the context of indicating that the appellant's profile may be of interest to the Sri Lankan authorities: see FCC Judgment at [47].

Submissions to the Tribunal and the Tribunal hearing 32 Before the Tribunal, the appellant's submissions again focused on the appellant's own claims to have a well-founded fear of persecution on return to Sri Lanka. The written pre-hearing submission directly referred to the criteria in s 36(2)(a) and (aa) of the Act, rather than s 36(2)(b) and (c), and the written post-hearing submission only raised the circumstances of the appellant's father in the context of his own independent claims to fear harm. 33 Obviously, the appellant's case was not solely limited to the documents before the Tribunal, and there was discussion at the hearing of the Tribunal of the nature of his father's claims and the fact that he had applied for and been granted a protection visa. In two separate instances, in the context of considering the appellant's claims as a member of a particular social group of persons and whether he would be imputed with certain political opinions, the Tribunal said it "accepts that the [appellant]'s father was granted protection in Australia": see [31] and [36] of the Tribunal Decision. The Tribunal was also aware of potential dependency issues as it indicated at the hearing (in the context of a discussion of the appellant's mother's spouse visa application) that: It will depend on his time of application and [a] lot of decision criteria. He [the appellant] can still be considered dependent but maybe not. Anyway, okay, I will go away now and consider all the evidence including what you've told me today. 34 As to dependency on his father, the fact that the appellant was single, unemployed in Australia and was living with his father at the time of application may indicate dependency of some degree. The transcript of the hearing before the Tribunal is equivocal on this issue. The appellant mentioned his family was financially dependent on his father while the appellant was in Sri Lanka. Yet at the time of the hearing, the appellant's father had back surgery and was not working and the appellant stated, "I'm actually looking after him". I am inclined to think that this was a reference to looking after his father physically, rather than financially. 35 As already observed, the enquiry is whether this claim arises "tolerably clearly" from the material, and it is too focussed to only look at the isolated facts of unemployment and living at home with the advantage of hindsight and without an appreciation of the context in which these facts are put before the Tribunal. 36 It is true that the Tribunal excluded consideration of s 36(2)(b) and (c) without addressing whether the appellant's father's status was sufficient to support a claim and whether the appellant was wholly or substantially reliant on his father. The Tribunal ultimately held (at [64] of the Tribunal Decision): There is no suggestion that the [appellant] satisfies s. 36(2) on the basis of being a member of the same family unit as a person who satisfies s. 36(2)(a) or (aa) and who holds a protection visa. Accordingly, the [appellant] does not satisfy the criterion in s. 36(2). 37 As the appellant submits, this was in circumstances where the Tribunal, in addition to knowing that the appellant was unemployed and was living with his father in Australia, had been told that, while in Sri Lanka, the appellant and his family were wholly reliant on financial support from his father, money was still being sent to support the appellant's mother and siblings in India, and the appellant's father has his own business in Australia which he used to support his family (although at the time of the Tribunal hearing he was unable to work due to back surgery and was in fact being looked after by the appellant). 38 Looking at the whole context (as the Tribunal did), I do not consider that the dependant claim was squarely raised on the material before the Tribunal. I am not satisfied that the appellant said anything to the Tribunal that should have put the Tribunal on notice of a different claim, such as the one now being articulated. I therefore do not accept that the FCC fell into error.

NOTICE OF CONTENTION 39 At the hearing and by way of receiving supplementary written submissions, I proceeded to hear argument on the notice of contention even though it was filed out of time. The evidence relied upon by the Minister in support of the notice of contention (which was not produced in the FCC) merely formalised the position stated by the appellant to the Tribunal. 40 There was no real opposition to my granting leave to the Minister to file the notice of contention out of time and to rely upon the Ngo Affidavit. 41 As I have found that the sole ground of appeal of the Appellant has no merit, I do not need to consider the issues raised in the notice of contention but will briefly indicate my view. 42 The Minister's argument is that, even if the Tribunal was required to consider the dependant claim, the Tribunal had no power to grant the visa as the Appellant could not meet s 36(2)(b) or (c) of the Act because, at the time that the Tribunal Decision was made, the Appellant's father was not a "non-citizen who… holds a protection visa as the same class as that applied for by the applicant". 43 The Tribunal Decision was made on 10 October 2016. The appellant's father became a citizen on 11 May 2016, being the day before the Tribunal hearing. Accordingly, it was submitted by the Minister that even if legal error is shown, it is not material and therefore does not arise to jurisdictional error, as the appellant could not have met an essential criterion for the grant of the visa: see Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at [32]-[37] (Kiefel CJ, Gageler and Keane JJ). 44 It is further submitted that the appellant's reliance on the terms of reg 866.221 (discussed below) cannot overcome the statutory criteria for the grant of a protection visa as set out in the Act: see Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 ('Master') at 110 [19]. However, as recognised in Master, the Court can read regulations and the legislation under which they are made to identify the nature of the legislative scheme which they comprise: at 110 [19] citing Brayson Motors Pty Ltd (In liq) v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652 (Mason J). 45 The appellant's principal submission is that the Minister's notice of contention adopts an overly simplistic and erroneous interpretation of s 36 of the Act which does not accord with the context of the text, the structure of the provision as a whole, or the purpose of sub-ss (2)(b) and (c). 46 It is submitted that the evident purpose of s 36(2)(b) and (c) - as outlined in the Explanatory Memorandum to the Migration Legislation Amendment Bill (No 6) 2001 (Cth) - is to provide for the compassionate grant of a visa to family members of a person with a recognised claim for protection. The appellant says that the interpretation adopted by the Minister undermines this. When read correctly, the appellant says this provision is concerned with ensuring that the principal claim is a recognised claim and does not intend to impose a restriction that the holder of the protection visa be a non-citizen at the time the family member's claim is determined. This approach is said to be consistent with regs 866.211 and 866.221 of Sch 2 of the Regulations, which provide for criteria that must be satisfied at the time of an application under s 36(2), and do not refer to the citizenship status of the principal claimant family member. 47 The appellant also observes that the suggestion that the uptake of citizenship (a matter to be encouraged by the government) would disenfranchise the appellant and thereby disadvantage a citizen of Australia where it would not disadvantage a non-citizen cannot have been intended by Parliament. 48 In the instant case, when read as the appellant submits, the condition has been satisfied - the appellant's father was a non-citizen in respect of whom the Minister had reached the requisite state of satisfaction. The condition has been satisfied and is not confined to any particular period of time. 49 However, I do not accept the appellant's approach. The plain and ordinary meaning of the statutory language in s 36(2)(b) and (c) of the Act requires a visa applicant to be a member of a family unit of a non-citizen. No resort to statutory context or purpose can overcome the plain language of the statute, particularly in circumstances where that statutory context or purpose does not conflict with the ordinary meaning of "non-citizen". 50 I accept the Minister's submission that the statutory purpose of the provision is to enable spouses or dependents who may not have independent claims of protection to essentially 'piggyback' onto the claims of the primary applicant in order to ensure those members of the family unit are also eligible for a protection visa. The statutory scheme can be readily identified by looking in the permissible way to the Act and Regulations. To that end, the criteria to be satisfied at the time of application include that the applicant claims to be a member of the same family unit as a person "who is an applicant for a Subclass 866 (Protection) visa" (see reg 866.211(3)(b) of Sch 2 of the Regulations), while the criteria to be satisfied at the time of decision is for the applicant to be a member of the same family unit as an applicant who "has been granted a Subclass 866 (Protection) visa" (see reg 866.221(3)(b) of Sch 2 of the Regulations). This highlights a temporal connection that assumes the members of the family unit are applying for a visa at or around the same time as each other.

CONCLUSION 51 I will order that: (1) The First Respondent be given leave to file the notice of contention out of time and to file the Ngo Affidavit. (2) The appeal be dismissed with costs. I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Middleton.

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