34 It was Part B which contained the questions and answers set out earlier which constituted the particular claims for protection. On their face, those claims for protection were made by the first appellant relying on s 36(2)(a) and (aa). She claimed to fear being killed so her child could be taken. The claim made on behalf of the second appellant was as a dependent family member.
35 At [4], the RRT said:
4. Only the first named applicant has made specific claims under the Refugees Convention and Complementary Protection, her child relying on her membership of her family. For convenience, therefore, the Tribunal will refer to the first named applicant as the applicant.
36 The submissions for the appellants attacked this approach, suggesting that it demonstrated jurisdictional error. It was submitted that separate attention was required to whether the second appellant's circumstances independently satisfied the criteria in s 36(2)(a) or (aa) of the Act.
37 In my view, the approach taken by the RRT was unremarkable. It was not until submissions were articulated in this Court that there was a suggestion that the delegate, and the RRT, had failed to address matters which arose for attention from the visa application or from other material.
38 I accept that a failure to properly fill out a particular form could not defeat, and should not be allowed to obscure, a claim to fear persecution which fairly arose from the stated basis for a protection visa, whether for a primary applicant or someone nominated as a family member (see e.g. SZOVB v Minister for Immigration and Citizenship [2011] FCA 1462; (2011) 125 ALD 38 per Katzmann J at [62]-[63]).
39 However, neither a delegate nor the RRT is obliged to construct or articulate claims, or find a legal foundation for them, which does not appear from the material.
40 The present case is one which may be contrasted with the circumstances dealt with by Rares J in SZTQD v Minister for Immigration and Border Protection [2016] FCA 339 ("SZTQD"). In SZTQD, Rares J discussed the potential interaction between SZBEL and cases such as NABE. His Honour's identification in SZTQD of a separate, clearly articulated, claim which required, but did not receive, attention by the RRT is a useful illustration of the applicable principle being worked out in practice.
41 In my view, the RRT had no obligation to separately consider the possibility that an independent claim for protection could be articulated on behalf of the second appellant, when no claim of that kind had, in fact, been independently or separately advanced.
42 In any event, in my view it is quite clear that the RRT's findings rejected any available factual foundation for such a possible claim.
43 Apart from the extracts set out earlier, the RRT found:
27. The Tribunal also does not accept that if the applicant's in-laws wanted the applicant child to live with them, that they would only have her for a period of two to three months, according to the applicant's evidence in the hearing, and not a longer period during the one and a half years the applicant child was living in India, mostly with the applicant's mother. The Tribunal finds the fact that the applicant child spend such a short period of time with the applicant's in-laws and they did not make any attempt to take her from the applicant's mother during the period of more than a year that she was in India, without the applicant, leads the Tribunal to be satisfied that the applicant's in-laws had no interest in having custody of the applicant child. The Tribunal therefore does not accept the applicant's claim in the hearing that her in-laws want her child because her husband will inherit land sometime in the future and therefore if she keeps her child, the land will go to her. …
28. Similarly, the Tribunal does not accept the applicant's claim that when she was going to India in January 2014, her husband told her to leave the applicant child there and he believed that she would do this. It does not accept that her husband believed that if she left the applicant child with her mother, that his family could easily extract her from there. …
29. The Tribunal has also taken into consideration the fact the applicant's husband has not had any contact with his daughter since she departed Australia in January 2014 and has appeared to have made no effort to locate her, despite being made aware by the applicant's message that they were returning to Australia in March 2014. The Tribunal does not accept in these circumstances that the applicant's husband has any interest in either the applicant or their child and does not accept that he would seek to have custody of the applicant child, now or in the reasonably foreseeable future.
30. … The Tribunal does not accept on the applicant's very limited evidence about her husband's family that they have any connections to either the police or politicians or that they will use the police and the politicians to kill her and take away her child.
31. Based on the above, the Tribunal does not accept that the applicant has been threatened by her in-laws that they will kill her and take her child from her. It does not accept that the applicant's husband or her in-laws want to take the applicant child away from the applicant if she returns to India, now or in the reasonably foreseeable future. …
…
Complementary protection obligations
…
36. Based on the findings and reasons of the Tribunal above regarding the applicant's loss of contact with her husband since January 2014, her in-laws since January 2013 and the lack of interest demonstrated by her husband or his family in either the applicant or the applicant child, the Tribunal finds that there are no substantial grounds for believing that as a necessary and foreseeable consequence of the applicant being removed from Australia to India, there is a real risk that she will suffer significant harm, including being killed or having her child taken from her, from her in-laws. …
44 The argument about this matter, like the argument in NABE, "seems to have emerged … in this second round appellate hearing" (NABE at [67]), not having been earlier articulated. In my view, it lacks both legal and factual substance. I see no jurisdictional error in the approach taken by the RRT.
45 Ground 3 amounts to a suggestion that the RRT denied procedural fairness by not intervening to require separate representation for the second appellant.
46 The appellants relied on a judgment of Barker J in WZAOT v Minister for Immigration and Citizenship (2013) 211 FCR 543, but that judgment is distinguishable. Barker J was considering an application for a protection visa made expressly on behalf of a child, in her own right. A migration agent had been asked to separately represent the interests of the child. In the course of his judgment, Barker J rejected arguments that the RRT and the FCCA had each failed to appreciate the need for the child to have effective representation of the child's own interests. Issues of that kind do not arise on the present appeal.
47 More to the point, his Honour also rejected the suggestion that it was obligatory to appoint an "independent" representative for the child, saying at [101]:
101 In my view, there is no automatic requirement for the Tribunal, when faced with an application brought on behalf of a very young child, to appoint a representative, not being either of the parents or other legal guardian of the child. While one can understand that a Tribunal, such as the Refugee Review Tribunal, may find it appropriate to develop protocols or guidelines or rules as to how members should deal with the question of representation of young children, that does not detract from the conclusion that I have reached that there was, in this case, no automatic obligation on the Tribunal to cause some "independent" person to represent the interests of the appellant child.
48 None of that discussion assists the argument put for the present appellants.
49 In the present case also, there was a migration agent, but the migration agent failed to attend the hearing before the RRT. The RRT decided to proceed. At the hearing of the present appeal there was some discussion of whether I should listen to about 90 seconds of a recording of the proceeding before the RRT. During that discussion, counsel for the appellants informed the Court that the recording would show that the first appellant had agreed to proceed without the migration agent present and had not suggested to the MRT that the second appellant should be separately represented, by the migration agent or otherwise. Those factual matters were agreed by counsel for the Minister and it was unnecessary, therefore, to verify them from the recording.
50 On the present appeal, it was suggested that the RRT was nevertheless bound to consider whether it should have adjourned so the migration agent could be present to separately represent the interests of the second appellant. I do not accept this contention.
51 There was no conflict of interest between the first and second appellants (the mother and her child), either procedural or substantive. The notion that the first appellant should not speak for her child should not be encouraged. The point is one which has been developed particularly for the appeal in this Court, but it is an unattractive one.
52 I do not regard Ground 3 as having any substance.
53 When the carriage of a challenge to the decision of the RRT was solely in the hands of the first appellant, and she represented both herself and her daughter before the FCCA, the sole ground for judicial review upon which she proceeded in that court was expressed as follows:
1. There is a jurisdictional error made by the RRT. RRT has over looked the facts of my case and refused the case on the basis that I am not entitled to be a refugee. I am eligible under the criterion of complimentary protection. I have a severe threat from my ex partners family in India who want to kills me. Its a threat to my childs life and I would like to plea to the federal court of Australia to look into this matter and please reopen my case
54 That ground was pressed, after two adjournments to obtain legal advice and/or assistance, in the form in which it appeared in the application for judicial review filed on 8 July 2014.
55 The judgment of the FCCA said:
14. To a large extent, that purported ground of review is an application for merits review. This court is not permitted to review matters on that basis. As explained to the applicant at the hearing, the court is only able to remit a matter to the tribunal if there has been a jurisdictional error. The applicant, in oral submissions, was unable to identify any jurisdictional error.
15. The applicant said in her application that the tribunal had overlooked the facts of her case. However, the applicant was not able to particularise that claim in any way. It seems to me that the tribunal has carefully and thoroughly assessed all of the pertinent facts that the applicants raised. I do not accept that the tribunal has overlooked the facts of the applicants' case. The applicants did not otherwise give any indication of what the jurisdictional error allegedly made by the tribunal might have been.
16. In oral submissions, the applicant said that:
a) her daughter was born here in Australia;
b) when she has been back to India, she has become ill;
c) she is very sensitive and the Indian weather does not suit her;
d) her in-laws would snatch her daughter; and
e) she cannot live without her mother.
17. Again, these are matters going to the merits of the decision. The court is not able to entertain applications on that basis.
18. I have read the tribunal's decision. I am unable to detect any jurisdictional error in it. Nor does there appear to be jurisdictional error in the tribunal's decision-making process. The tribunal relied on the information that the applicant gave it. The tribunal discussed with the applicant at the hearing the various concerns that the tribunal had with her claims. In all the circumstances, there is no sign of any jurisdictional error in the tribunal's reasons for decision or decision making process. The application must be dismissed.
56 I see no error in those conclusions. Indeed, it was no part of the appellants' case to suggest any such error. Instead, the errors made by the FCCA were alleged to be a failure to accept those contentions I have discussed above.
57 If any of the arguments I have rejected had been upheld, it might be possible to say, at a very general level, that the FCCA had erred by failing to identify any jurisdictional error, and by rejecting the application for judicial review which was before it, but there is no substance in the particular allegations of error. There is no substance either in a charge of error at a more general level of abstraction.
58 Although the proceedings were initiated in the form of an application for leave to appeal, it was accepted that an appeal lay as of right. I indicated at the commencement of the hearing of the appeal that the amended draft notice of appeal lodged on 18 April 2016 would be treated as the notice of appeal.
59 The appeal must be dismissed, with costs.
I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.